A Federal Court Justice recently handed down a decision that opened the door to Union officials who had been deemed to be unfit and improper persons to hold a Federal right of entry permit to freely enter workplaces when their assistance is requested by a Health and Safety representative.

The Court ruled that union officials are not required to display the Federal entry permits when entering a workplace under Section 58(1)(f) of the Victorian OHS Act 2004. This section provides for a power of a HSR to ‘whenever necessary, seek the assistance of any person’.

The CFMEU has a history of misusing Section 58 as a means of backdoor entry onto construction sites so as to avoid the right of entry requirements under both the Fair Work Act and the OHS Act.

The ruling will mean that the twenty-plus CFMEU Victoria officials who do not have Federal Entry permits will be able to enter sites freely if their assistance is requested by an HSR.

Under the OHS Act an employer can refuse entry to a person assisting an HSR if the employer considers that the person is not suitable to assist because of ‘insufficient OHS knowledge’.

Where an employer refuses entry, the Act provides that the HSR may apply to the Magistrates Court for an order directing the employer to allow access. WorkSafe cannot order the employer to allow the union official entry to the workplace.

Members experiencing any problems arising out of union officials entering their workplace in support of a HSR, where there is concern about the issues being raised, should defer to their OHS Issue Resolution Procedure. It should be noted that an OHS Issue Resolution Procedure is also embedded into the 2011-2015 EBA and also features in the 2015-2018 EBA currently being shopped around by the CFMEU.

Where an employer does not have an OHS Issue Resolution Procedure (or an EBA as referred to above) the default OHS procedure detailed in the OHS (Issue Resolution) Regulations 2007 will apply.

Section 73 of the Act provides that if an issue concerning health and safety arises that the employer must attempt to resolve the issue.

Section 75 of the Act provides that if an issue is not resolved under Section 73 within a reasonable time that any of the parties may ask for WorkSafe to arrange for an inspector to attend the workplace to enquire into the issue.

Section 75 of the Act explicitly states that WorkSafe ‘must ensure that an inspector attends the workplace as soon as possible after the request is made’.

Master Builders is aware of a number of instances where WorkSafe have refused to make its inspectors available to assist members to resolve safety issues, both under Section 75 and also under Part 8 of the OHS Act Authorised Representatives of Registered Employee Organisations (ARREO).

Master Builders has repeatedly questioned WorkSafe’s policy of facilitation of entry for officials under Part 8 of the Act, which includes advising employers that they are required to allow officials entry to the workplace under threat of referral to the investigation unit of WorkSafe for potential prosecution for hindering and obstructing the union officials.

Part 8 of the Act also provides that where an issue arises between an ARREO and employer that either person may ask WorkSafe to arrange for an inspector to attend the workplace. This part of the Act also explicitly states that WorkSafe must ensure that an inspector attend the place as soon as possible after a request is made.

Members are reminded that they can seek assistance (including attendance where practicable) from the OHS Unit should they experience any difficulties.

Members are also urged to notify the OHS Unit should they have any problems in getting WorkSafe to attend their sites to assist in resolving any issues, including when union officials enter as ARREOs.

Members needing assistance on health and safety issues can call (03) 9411 4569.