Trespass rejected as Full Court affirms union officials right to stay on premises
A Full Bench of the Supreme Court of Queensland has affirmed, in an appeal decision, the right of union officials to enter and remain on business premises when they reasonably believe that a contravention of safety legislation has occurred.
The case involved four officials from the Queensland branch of the CFMMEU who police had arrested after they entered the business premises of Enco Precast (Enco) in December 2018. The occupier had claimed that the union did not have any eligible members at the premises and that the entry notices provided by the officials were “very general in nature”. Consequently, he demanded they leave the premises, which they refused to do.
Each of the officials held valid entry permits issued under the Fair Work Act 2009 as well as safety permits issued under s117 of the Work Health & Safety Act (the Queensland Safety Act).
Initially, the officials contacted Workplace Health and Safety Queensland, who dispatched two inspectors to the premises who spoke to both the occupier and the officials. They departed the premises without issuing any written directions to Enco or any of their staff. After approximately four hours, all four of the officials were charged by the police with trespass.
In the lead decision of Justice Hugh Fraser (with Justices Margaret McMurdo and Thomas Bradley in full agreement), the actions of the occupier and police in this matter were not defendable.
As he noted in reference to sections 117 and 118 of the Safety Act,
“These sections clearly express in unmistakable and unambiguous language that, if a WHS entry permit holder reasonably suspects that a contravention of the Work Health and Safety Act that relates to or affects a relevant worker has occurred or is occurring, that permit holder may enter and remain at the workplace for the purpose of inquiring into the suspected contravention in the ways described in s 118. The statutory language is not open to a construction under which the rights conferred upon the WHS permit holder are exercisable only with the consent of the occupier”.
To imply otherwise, he suggested, would deter permit holders from appropriately entering sites for fear of prosecution for trespass.
He further noted that the issuing of WHS entry permits is carefully regulated, with officials required to attend prescribed training and the Industrial Commission having the right to withdraw permits upon application by the regulator.
In allegedly ignoring statutory rights, the employer failed to document, challenge, and communicate issues in a reasonable process. The dispute would have significantly benefitted from an inspection of the workplace by the WorkSafe Officers, who are empowered to appoint interpreters, subject experts or the union to assist them if needed.
We recognise the statutory right to enter by the WorkSafe Officers and the Union. However, the court missed an opportunity to address many other practical issues with the WorkSafe entry provisions. The assertion of vague suspicions, is it reasonable to request supporting evidence/statements/work team in support of suspicion? What is the required standard of communication, is there a requirement to identify the work team or individual the union represents or confirmation that they represent anyone in the work team affected by the safety issue etc.?
WorkSafe issues are best first raised in the workplace. Individuals raising complaints through their work team have multiple statutory rights and protections, which may not apply if unidentified by the union. It remains frustrating for employers to engage with a union on vague grounds without confirmation they represent a work team or any employee on-site with union membership in significant decline. In contrast, in almost all other aspects of the workplace relations systems, the union must establish representation directly or indirectly before having standing.
We support identification of risks without delay, open communication, identification of representation at a work team level, HSR’s working with management and identification of specific genuine issues to be addressed.
If the union had been allowed to enter and remained on-site for four hours, the court may have considered other provisions under the legislation.
We support project management teams and providing training to construction sites on right of entry issues, practical choices and supporting documents. This matter does not detract from or change employer rights. It does not expand union entry powers or clarify union obligations but provides guidance to the QPS on the choice of their wide powers if needed to keep the peace.
In a further blow to the Queensland Police Service, the Justices ordered they pay the costs of the appeal, which are likely to be significant.
For questions about unions, safety disputes, right of entry, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.