Australian Building and Construction Commissioner v Powell (No 2)
Citation: [2019] FCA 972
At a glance
- Penalty
- $2,600
What happened
Michael Powell, an organiser for the Construction, Forestry, Mining and Energy Union, attended a construction site at Ringwood, Victoria on four separate occasions between May and October 2014 to assist the workplace health and safety representative. Each time, the site occupier (Kane Constructions) refused him entry and asked him to leave. Powell attended in response to requests from the duly elected health and safety representative seeking assistance under occupational health and safety legislation, not under Fair Work Act permit authority.
What was decided
The court found that section 70 of the Victorian OHS Act confers a state OHS right, and Powell was exercising that right. Section 494 of the Fair Work Act requires officials to hold a permit to exercise such state OHS rights. Powell had no permit. The court declared four contraventions and imposed an aggregate penalty of $2,600, taking into account Powell's genuine but mistaken view about whether he needed a permit.
What it means for employers
Site occupiers can lawfully refuse entry to union officials who have not obtained Fair Work Act entry permits, even if they are assisting a health and safety representative under state OHS legislation. The permit requirement applies to state OHS rights.
What it means for employees
Union officials seeking to assist with workplace health and safety matters must comply with Fair Work Act permit requirements; state OHS rights do not exempt them from this requirement.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0972Want more cases like this?
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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