Kirby v JKC Australia LNG Pty Ltd (No 2)
Citation: [2015] FCA 1113
What happened
Union officials including Paul Kirby, Beau Malone, and Chris Lynch, holding work health and safety entry permits under the Work Health and Safety Act (NT), sought to exercise rights of entry at the Ichthys On-Shore Construction Project at Blaydin Point. JKC Australia LNG refused entry on grounds including that no relevant worker was present on site, no prior written notice was given, and alleged contraventions had been rectified.
What was decided
The court issued interlocutory injunctions restraining JKC from refusing entry solely on the ground that a relevant worker was not physically present at the worksite at the time of inspection. The court declined to issue injunctions for other reasons (lack of prior notice and subcontractor identification). The court found that the Work Health and Safety Act does not require a relevant worker to be present during an inspection.
What it means for employers
Employers cannot refuse workplace health and safety inspections merely because workers are not present on the day. Employers must permit permit holders to inspect worksites to investigate suspected contraventions. However, employers may impose reasonable conditions such as requiring identification of subcontractors responsible for areas being inspected.
What it means for employees
Workers have rights to union representation in health and safety investigations. Unions holding entry permits can conduct investigations even when workers are not physically present, supporting proactive safety monitoring and investigation of reported hazards.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →