A full Federal Court has upheld the ABCC’s appeal to a finding by Justice Bromberg that two CFMEU officials who intentionally disregarded requests to show entry permits and provide notices of entry did not breach section 500 of the Fair Work Act 2009 (FW Act) when they entered the site to hold discussions with employees, on the basis that they were not exercising, or seeking to exercise, a right of entry.

Section 500 of the FW Act prohibits a permit holder from intentionally hindering or obstructing any person, or otherwise acting in an improper manner, when exercising (or seeking to exercise) entry rights.

The Full Bench decision makes clear that a union official holding a federal permit cannot ‘immunise’ him/herself from the operation of section 500 of the FW Act, by simply refusing to provide notice of entry. This is important as section 500 is a civil remedy provision – and means that union officials who elect to take such a course of action risk prosecution under the FW Act, in addition to trespass.

The decision also provided important clarification that the threat made by one of the union officials to disrupt work as a result of the builder exercising their workplace right to require strict right of entry compliance, constituted a breach of the general protections provisions of the FW Act.

The matter will now be remitted to the primary Judge for further hearing.