RIGHT OF ENTRY 2014 – A BUILDING AND CONSTRUCTION INDUSTRY PERSPECTIVE

A paper for the Industrial Relations Conference 2014

26 June 2014 Melbourne

Richard Calver, National Director Industrial Relations and Legal Counsel Master Builders Australia Ltd

Introduction Right of entry in the building and construction industry is a complex subject. It addresses the critical issue of who is in control of certain building sites: the union or the principal contractor. But this paper is not about union bashing. It is not my intention to denigrate the role of unions in representing their members or their role in work health and safety (WHS) issues. It is also not my intention to label all union interventions as an abuse of power. However, in too many instances, alleged WHS disputes are used as a mask for different agendas at the expense of safety. All too often, access to sites is used to advance union privilege rather than as a means to foster member benefits. There have been many examples of unions using spurious health and safety issues as justification for the disruption of work on construction sites. For example, in the 2013 case of Laing O’Rourke Australia Pty Ltd v CFMEU, 1 the allegations by the Construction, Forestry, Mining and Energy Union (CFMEU), the Communications, Electrical, Plumbing Union (CEPU) and Builders Labourers Federation Queensland (BLF) of serious workplace health and safety issues were contradicted by an independent inspection conducted by Work Health and Safety Queensland. 2 Justice Collier stated that: The contrary views upon which the union officials appeared to insist during the inspection, in the face of the views adopted at the site by WHS Qld, suggest an agenda by the relevant union officials other than a pure interest in workplace health and safety issues. 3 It is these practices that are illegitimate and to which the law should be directed. Recent evidence of a systemic campaign to misuse right of entry to intimidate a contractor at its Adelaide sites 4 together with the horrendous disruption caused by the Myer Emporium 1

[2013] FCA 133 Ibid at 33 3 Ibid at 33 4 Section 508 Misuse of entry rights [2014] FWC 3907 13 June 2014. The order which emanates from this decision the Fair Work Commission requires that right of entry rights for CFMEU officials to enter all Lend Lease projects in the relevant jurisdiction be suspended for one year. In summary the order: • Prevents any CFMEU official, (other than six named SA officials) from entering Lend Lease sites using their powers under the FW Act until the CFMEU demonstrates to SDP O’Callaghan that the officials have completed a satisfactory right of entry training program. • In relation to four of the named officials imposes a ‘springing’ suspension. That is, their permits will automatically be suspended for six months, if they are found to have been contravened at any time in the next 12 months; • Requires CFMEU officials to provide 24 hours’ notice to Lend Lease before entering the site and sets out what must be in the notice; • Requires that FWBC must be provided with a copy of the notice at the same time as Lend Lease; • Allows Lend Lease and the CFMEU to reach agreement to waive the notice requirement above but if this occurs FWBC must be provided with details of each entry within 24 hours of it occurring; • Imposes a range of practical requirements on CFMEU officials, such as: 2

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dispute, touched on below, reinforces the need for action to be taken and at the least for the Coalition reforms currently before Parliament to be legislated. 5 Accordingly, I have structured this paper around the idea of reforming the laws relating to right of entry to restore the balance in those laws, reforms which would extend beyond the legislation currently before Parliament. An essential component of this broader reform was recently endorsed by the Master Builders Board, 6 in the context of making recommendations to Government for changes to entry on the basis of WHS considerations. As stated, Master Builders also supports the reforms currently before Parliament which are discussed in this paper. The need for reform is longstanding. For the building and construction industry the need to reform the right of entry laws has been a constant concern for more than a decade. The Royal Commission into the Building and Construction Industry 7 (Cole Report) which reported in 2003 found that the proper regulation of entry and inspection rights exercised by unions is a matter of considerable importance in bringing about change to the workplace relations of the building and construction industry. The overwhelming evidence presented to the Cole Royal Commission was that industrial disruption on building and construction sites followed upon union officials entering sites as a result of the exercise or purported exercise of a statutory entitlement. The Cole Report’s finding was that industrial disputation was almost always the result of intervention in workplace relations by union officials. Nothing has changed since that time. Intervention is often contrived, uninvited and unwanted by affected employees. The Cole Report found that entry and inspection provisions are routinely contravened in the building and construction industry. In order to restore the rule of law in the building and construction industry, entry and inspection provisions must be fundamentally reformed. That fundamental reform has not occurred and the provisions of the FW Act do not assist with the industrial realities faced by employers on a daily basis. It is for this reason that Master Builders fully o o o o o o

to wear PPE; to wait to be escorted; to be escorted at all times; to identify themselves, including by full name; to sign the visitor’s book; to carry with them their right of entry permit, notice of entry and drivers licence/passport for identification purposes and to show these if requested to do so;

5

Fair Work Amendment Bill 2014 (Cth) Master Builders Australia Ltd National Work Health and Safety Right of Entry Policy February 2014 7 http://www.royalcombci.gov.au/hearings/reports.asp 6

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supports the passage of both Bills currently before the Senate which would restore the Australian Building and Construction Commission; that is the Building and Construction Industry (Improving Productivity) Bill 2013 and the Construction Industry (Consequential and Transitional Provisions) Bill 2013

The ‘Balance’ in the Law Section 480 of the Fair Work Act, 2009 (Cth) (FW Act) sets out that the object of Part 3-4 of the FW Act (which establishes a statutory right to do what would otherwise be a trespass) 8 is to balance a number of interests. That provision is as follows: The object of this Part is to establish a framework for officials of organisations to enter premises that balances: (a)

the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i)

this Act and fair work instruments; and

(ii)

State or Territory OHS laws’ and

(b)

the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)

the right of occupiers of premises and employers to go about their business without undue inconvenience.

The changes to the law made by the Fair Work Amendment Act, 2013 (Cth) (Amendment Act) which came into effect on 1 January 2014 have tilted the balance of the law further in favour of unions. Those changes reinforced the direction of the law away from maintaining an appropriate balance to one which reinforces union privilege. In this context during the Second Reading debate for the Amendment Act, the Coalition said that it had a list which showed that there were 157 amendments to the FW Act which had been made since 2009 that extended union rights. 9

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See B Creighton and A Stewart “Labour Law” 5 Edition The Federation Press 2010 at para 20.106 Speech by Susan Ley Hansard House of Representatives 4 June 2013 at p.5034 http://parlinfo.aph.gov.au/parlInfo/download/chamber/hansardr/e40cc95f-8da2-4485-8b5cf83df5fee682/toc_pdf/House%20of%20Representatives_2013_06_04_1907_Official.pdf;fileType=application%2F pdf#search=%22chamber/hansardr/e40cc95f-8da2-4485-8b5c-f83df5fee682/0003%22 This is on further research a list provided by the AiG as an attachment to its submission on the Fair Work Amendment Bill 2013 to the Senate Education, Employment and Workplace Relations Legislation Committee dated 15 April 2013 see http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE _CONTENT/Policy%2520and%2520Representation/Submissions/Workplace%2520Relations/2013/Submission_ SenateCommittee_FairWorkAmendmentBill2013_AiGroup_FINAL.pdf 9

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In addition, the manner in which work health and safety considerations have been used as a mask for other agendas has come to a head in 2014 (or which were illustrated as criminally unlawful, 10 arising from the Myer Emporium dispute), further upsetting the balance which the Rudd/Gillard Governments claimed they would uphold, 11 but did not maintain. The changes wrought by the Amendment Act are the subject of further proposed changes as contained in the Fair Work Amendment Bill, 2014 (Cth) (2014 Bill) now stuck in the Senate given the balance of power is currently held by Labor and the Greens. 12 When discussing each of the provisions of the Amendment Act in relation to right of entry, I will highlight the proposed Coalition change and then, under a separate heading, discuss the other elements of the 2014 Bill relating to right of entry.

Changes to Right of Entry from 1 January 2014 Part 3-4 of the FW Act allows officials of organisations who hold entry permits to enter premises for discussion and investigation purposes and to exercise certain powers while on these premises. The Amendment Act made changes to Part 3-4 regarding the location of discussions and interviews, along with changes to transport and accommodation arrangements to facilitate entry to premises in remote areas. Amendments were also made to the Fair Work Commission’s (FWC) dispute settlement powers in relation to transport and accommodation costs and the frequency of entry for discussion purposes. Default meeting venue New s492(1) FW Act allows permit holders to conduct interviews or hold discussions in rooms or areas agreed by the occupier of the premises. However, if no agreement exists, the default location for interviews or discussions will be any room or area where one or more of the persons interviewed or involved in discussions usually take their meal or other breaks. Master Builders does not support the change which gives unions the ability to use an employer’s lunchroom to hold meetings. Lunchrooms are places where employees are able to take a spell from their job and enjoy their meal time in peace. Union meetings and activities should not be forced upon non-union workers enjoying their meal breaks,

10

See report relating to the CFMEU’s conviction for criminal contempt discussed in CFMEU contempt bill in Grocon Stoush Tops $2 million Workplace Express 31 March 2014 11 Ibid at para 20.105 quoting the Labor promise in ‘Forward with Fairness Implementation Plan’ 12 See Senate Committee Backs Fair Work Amendments Workplace Express 5 June 2014

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especially as 83 per cent of Australian workers are not members of a trade union. 13 This “default” position enables unions with a small membership at a site to expose non-members to discussions and hence aid recruitment into a rival union. As the majority of the Full Bench noted in Somerville Retail Services P/L v Australasian Meat Industry Employees’ Union: 14 In previous cases the interests of employees have included the interests of employees who may not wish to be involved in discussions. In our view, it is appropriate to take their interests into account. 15 I note that recently in National Union of Workers v Coles Group Supply Chain Pty Ltd

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Commissioner Roe did recommend that “it is reasonable for Coles Group Supply Chain Pty Ltd to restrict permit holders to a particular area of the meal room so as to reduce the likelihood of conflict in the workplace. However, the permit holders should be able to approach employees for the purpose of holding discussions in accordance with Section 484 of the FW Act in that particular area.” The decision is not a definitive examination of the new provision. However, it confirms the intrusiveness of the default position but also confirms that it might be reasonable for physical restrictions within that particular meal room to be imposed, thus to a limited extent upholding the interests of employees who may not wish to be involved in discussions. The Labor Government at the time indicated that the changes in the Amendment Act were being introduced in the wake of the Review Panel report into the FW Act. 17 However, there was no Review Panel recommendation that a default position in the absence of agreement would be the meal or other break location at a site. The policy was one that was not founded on proper, prior analysis and deserves reversal. The old law was not broken. Part 8 of Schedule 1 of the 2014 Bill deals with changes to right of entry laws. The Coalition Government’s intention is to restore the rules about right of entry to those in place prior to the FW Act coming into force on 1 July 2009. The Government also wishes to reverse the provisions introduced by the Amendment Act (which, as stated earlier, came into effect on 1 January 2014) concerning rights to transport and accommodation on remote sites, next

13

ABS catalogue 6310.0: the survey results published on 4 June 2014 in respect of August 2013 show that 17 per cent or 1.7 million employees were trade union members in their main job, the lowest proportion in the history of the series. 14 [2011] FWAFB 120 15 Ibid at para 35 16 [2014] FWC 1674 17 See for example statements in the Outline of the Explanatory Memorandum for the Fair Work Amendment Bill 2003 note that The Fair Work Act Review Panel’s final report, Towards more productive and equitable workplaces: an evaluation of the Fair Work legislation was released on 2 August 2012.

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discussed, as well as the mandating access to lunch rooms, just discussed. Master Builders supports the Government’s action. Accommodation and Transport Arrangements The Government through the 2014 Bill would repeal the provisions in new Division 7 of Part 3-4 which deal with circumstances in which permit holders and/or an organisation and occupiers have been unable to agree on accommodation and transport arrangements in remote areas, although that term is not defined. New s521C(2) and s521D(2) inserted by the Amendment Act require an occupier to provide accommodation and transport for the purposes of assisting a permit holder exercise their rights under Part 3-4 in these undefined “remote areas”. This obligation applies where: •

accommodating or transporting the permit holder would not cause ‘undue inconvenience’ to the occupier;

•

the permit holder, or their organisation, requests the occupier to provide accommodation or transport;

•

the request is made within a reasonable period before the accommodation or transport is required; and

•

the permit holder, and their organisation, have been unable to enter into an accommodation or transport arrangement with consent.

The meaning of the term ‘undue inconvenience’ is not defined in this context, although the prior jurisprudence on the term is likely to be adopted. 18 There is clearly an additional administration cost in relation to these provisions, a cost which appears not to be able to be fully recovered per s521D(3), although the actual costs of provision are able to be sought. Master Builders does not support amendments to the FW Act that are not clearly articulated and which place an additional and unwarranted administrative burden on employers. As we said in our submission on the 2014 Bill, “employers are not travel agents.” 19 Dispute Settlement Procedures The third element of the Amendment Act concerns disputes about frequency of entry by union officials. This appears to be a tactic that unions are using as a means of intimidation, 18

See for example the extensive discussion in Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847 esp at paras 19-22 19 Submission to the Senate Education and Employment Legislation Committee on the Fair work Amendment Bill 2014 http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/Fair_Work_Am endment/Submissions submission No 9 at para 10.4

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particularly in the building and construction industry. For example, the Fair Work Building and Construction agency recently issued a media release 20 pointing to the behaviour of at least 10 CFMEU officials who descended on Adelaide in a spate of illegal entries earlier this year, that resulted in the suspension of their entry permits referred to earlier in this paper. 21 FWBC has, in addition, subsequently launched four cases against the CFMEU and its officials in the Federal Court. The Department of Employment noted in its submission to the Senate Standing Committee on Education and Employment Inquiry into the 2014 Bill 22 that there is a growing trend of an excessive number of union visits to some workplaces stating by way of example: (T)he Fair Work Act Review 2012 noted that during the construction phase of BHP Billiton’s Worsley Alumina plant, visits by permit holders increased from zero in 2007 to 676 visits in 2010 alone (page 193). The Australian Industry Group also submitted that 37 per cent of employers it surveyed in August 2011 had experienced more frequent right of entry visits since the Fair Work Act commenced. 23 New s505A inserted by the Amendment Act enables the FWC to deal with a dispute regarding the frequency of entry to hold discussions. The FWC is able to deal with the dispute if a permit holder or permit holders from the same organisation enter under s484 and the employer or occupier of the premises disputes the frequency of the entry. This section permits the FWC to make any order it considers appropriate to resolve a dispute. These include an order to suspend, revoke or impose conditions on entry permits or the future issue of entry permits. FWC may only make an order if it is satisfied that the frequency of entry requires “an unreasonable diversion of the occupier’s critical resources” per s505A(4). This is a strange and impractical test. Albeit that Master Builders considers recognition of the problem welcome, the new provision is less-than-satisfactory.

The term “an unreasonable diversion of an occupier’s critical

resources” appears to place a high threshold on the FWC making an order, and appears to be narrower than the “undue inconvenience” test mentioned earlier.

Opaque expressions

should not be introduced into the FW Act which is becoming increasingly complex. This is exemplified in the notion of a ‘critical resource’. The ambiguity surrounding this provision is

20

See CFMEU Official in Court After Abusing FWBC Investigator 18 June 2014 http://fwbc.gov.au/cfmeu-officialcourt-after-abusing-fwbc-investigator-0 21 See footnote 1 above 22 see submission number 14 at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_ and_Employment/Fair_Work_Amendment/Submissions 23 Ibid at para 2.9

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evident from the recent decision in Greenmountain Food Processing P/L v Australasian Meat Industry Employees Union. 24 In this case the employer lodged a dispute with the FWC so that the frequency and duration of visits by the AMIEU could be addressed as well as the issue of the location of discussions with employees and movements of permit holders during visits.

The FWC per

Commissioner Lewin made a recommendation of a three month trial of monthly meetings in the lunch room during existing breaks. However, if an employee requested a visit, “such visits occur additionally.” 25 In exercising the FWC’s discretion to issue a recommendation to the parties, the law was left untested and remains ambiguous. The 2014 Bill would again change the effect of the law introduced by the Amendment Act. The “critical resources” test discussed above would be removed. The changes proposed also require the Commission to take into account the cumulative effect of entries by union visits. FWC must take into account: •

fairness between the parties concerned (new paragraph 505A(6)(a)); and

•

if the dispute relates to an employer – the combined impact on the employer’s operations of entries onto the premises by permit holders of organisations (new paragraph 505A(6)(b)); and

•

if the dispute relates to an occupier of premises – the combined impact on the occupier’s operations of entries onto the premises by permit holders of organisations (new paragraph 505A(6)(c)).

Master Builders supports these changes as retaining balance between employers’ and union rights.

The Further Reforms in the 2014 Bill The 2014 Bill would amend the FW Act right of entry provisions by substituting current s484 dealing with entry to hold discussions with a new s484. Item 61 of Part 8 of Schedule 1 of the 2014 Bill would repeal the current s484 of the FW Act. It substitutes new criteria in relation to entry to hold discussions.

There are new criteria that a permit holder’s

organisation must satisfy so that right of entry for discussion purposes is lawful. Section 24 25

[2014] FWC 3169 Ibid

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484(1) would provide for right of entry for discussion purposes in circumstances where the permit holder’s organisation is covered by the enterprise agreement that applies to the work performed on the site. A permit holder is entitled to hold discussions in those circumstances with workers who perform work on the premises and whose industrial interests the permit holder’s organisation is entitled to represent. In addition, the worker must want to participate in those discussions. New proposed s484(2) sets out that for a right of entry for discussion purposes where the permit holder’s organisation is not covered by an enterprise agreement, different criteria apply.

In those circumstances a permit holder may hold discussions with persons who

satisfy three criteria. The permit holder may hold discussions with those persons if, as expressed, in the Explanatory Memorandum: •

Either: o

An enterprise agreement applies to work performed on the premises, but the enterprise agreement does not cover the permit holder’s organisation (new subparagraph 484(2)(d)(i)); or

o

No enterprise agreement applies to work performed on the premises (new subparagraph 484(2)(d)(ii), and

•

The organisation has been invited to send a representative to the premises by a member or prospective member who performs work on the premises, and whose industrial interests the permit holder’s organisation is entitled to represent (new subparagraphs 484(2)(e)(i) and (ii)).

As can be seen proposed s484(2) requires a member or prospective member who performs work at the site to invite the organisation to send a representative to the site to hold discussions. The legislative note to s484(2) refers to the FWC’s power to issue an invitation certificate under proposed s520A. That provision sets out that the FWC must be satisfied that the organisation has been invited. It is not mandatory for an organisation to apply for an invitation certificate to demonstrate that the requirement to be invited onto the site has been satisfied. Instead, it is intended that, as expressed in the Explanatory Memorandum “for example a letter or voluntary statement from the member or prospective member who issued the invitation stating that he or she has extended such an invitation would be sufficient to demonstrate an invitation requirement has been satisfied.”

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Master Builders believes that, given the rivalry between unions in the building and construction industry which often engenders violent disputes 26 this is a balanced approach to the rights of unions to hold discussions, particularly in relation to discussions with those eligible to join particular unions. The reform will discourage “entrepreneurial” entry by unions and strategies that might have the effect of adversely affecting an employer and those working on site. Despite the comments in the prior paragraph, Master Builders is concerned that the concept of a required statutorily recognised “invitation” may engender disputes. It is commonplace for construction union officials exercising right of entry to investigate suspected breaches (both under the FW Act and WHS laws, the latter discussed below) to state that they are entering on the basis of some undisclosed member’s request or advice. Determining the veracity of these statements currently leads to considerable confusion on the site, with disputation resulting.

The present drafting of the substitute s484 provision does not allay

concerns that similar tactics may be adopted by union officials, with the threat of prosecution for hindering or obstructing the official being used to press the right to enter (note 2 of the proposed s484(2) specifically raises this question). To avoid this issue, Master Builders recommended to the Government that the Bill be amended so that it indicates that an occupier is not unduly delaying entry by requiring the official to obtain a certificate under the new s520A unless the occupier has received a written request from a member who meets the other criteria set out in the proposed s484(2)(e). That suggested amendment was not adopted.

Reform of WHS Right of Entry It is common ground that under the current law union officials who hold right of entry permits under the FW Act have a right of entry via three mechanisms. These mechanisms are, of course as discussed, in Part 3-4 of the FW Act. They are as follows: •

To investigate suspected breaches of an award or agreement under s481 (Subdivision A of Division 2 Part 3-4);

26

In mid-2011, Tracey J of the Federal Court handed down $250,000 in fines and $190,000 in costs against the CFMEU after finding that the union had deliberately and illegally prevented work from going ahead on the new Melbourne Markets site in Epping, Victoria. The decision came after the subcontractor responsible for civil construction on the site entered into a greenfields agreement with the AWU for workers on site. For the factual background see Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556)

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•

To hold discussions with eligible workers under s484 (subdivision B of Division 2 Part 3-5); or

•

Under a State-based occupational health and safety law (WHS Law).

Pursuant to the findings in Ramsay v Sunbuild Pty Ltd, 27 Part 3-4 imposes additional requirements on permit holders exercising a right of entry under WHS Laws but does not override those rights. This case was therefore confirmation to the CFMEU that its officials are able to rely on s501 and 502 in Part 3-4. These provisions create an obligation on the controller of the site not to refuse or delay entry and not to hinder or obstruct a permit holder. In this instance, those requirements were additional to the Northern Territory WHS legislation and the CFMEU succeeded in having the FW Act’s provisions applied. Section 487(3) FW Act indicates that to enter to investigate a suspected breach or to hold discussions an entry notice “must be given during working hours at least 24 hours, but not more than 14 days, before the entry”. That stipulation does not apply in relation to entry under WHS Law dealt with in Division 3 of Part 3-4. Whilst pursuant to s494(1) an official of an organisation must not exercise a State or Territory WHS right unless the official is a permit holder under the FW Act, the 24 hour notice provision does not extend to the exercise of those rights. The exception to that carve out is set out in s495(1)(b) FW Act where a permit holder must not exercise a State or Territory WHS right to inspect or otherwise access an employee record of an employee unless inter alia at least 24 hours’ notice has been given before exercising that right. It is Master Builders’ policy that requiring the 24 hours’ notice just noted as a ‘carve out’ under Part 3-4 to be extended to WHS right of entry under a WHS Law. Master Builders' policy was introduced by the Queensland Government this year. The Queensland Government conducted a review of WHS laws. 28 The review led to the introduction of legislation into the Queensland Parliament which was passed on 3 April 2014, the Work Health and Safety and Other Legislation Amendment Act 2014 (Queensland Amendment Act). The Queensland Amendment Act has the policy intent of constraining “the misuse of right of entry powers by union officials, inconsistency with entry notification requirements in other legislation and the subsequent complexity this creates for business.” 29

27

[2014] FCA 54 (11 February 2014) See Explanatory Notes Work Health and Safety and Other Legislation Amendment Bill 2014 under “Policy Objectives and the reasons for them”. 29 Id 28

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Master Builders amongst others provided evidence to the Queensland Government that disruptive and misconceived stoppages based purportedly on safety grounds were occurring with regularity. Queensland Master Builders Association (QMBA) provided a submission to the Queensland Government which took the examples set out in the box below from QMBA’s files: Box 1: Evidence of spurious WHS stoppages Emergency Lighting: Union officials stop all employees working on a major construction project as there was no battery backup for lights in the amenities. Union officials stop all employees working on a major construction project as there was no battery backup for emergency stairwell lights. Evacuation Plan: Union officials stop all employees on site to conduct a fire drill without notice, without consultation and without regard for the productivity of workers. Fire extinguishers: Union officials stop all employees working on one level of a construction project as there was not three separate fire extinguishers despite the two extinguishers complying with all fire requirements. Site Access & Egress: Union officials stop all employees working on site as one of the two emergency stairwells was partly wet from rain or if rubbish bins were blocking an exit. Amenities: Union officials stop all employees working on a major construction site due to any of the following: insufficient toilets, insufficient water coolers, dirty toilets, no covered walkways to amenities, insufficient seating for all site workers, a minor urine spill, no plumbed in toilets and insufficient tables. Dewatering Following rain the union enter site and sit the workforce in the lunch rooms until the full site is inspected and dewatering is conducted. The union prevent workers returning to work in dry unaffected areas. Housekeeping: The union stop all workers on site while three of four workers clean the site. Two Stair Access: The union stop all workers on site when there is no second set of stair access to a work area despite there being no such legislative requirement. Emergency access: The union stop workers on site whilst they conduct a review of emergency access and rescue from Jump-forms or tower cranes regardless of any prior liaison with and drills with Queensland Fire and Rescue by the builder.

The abuse by unions of WHS right of entry laws is widespread within the building and construction industry. When unions use ‘safety issues’ as a means of entry into construction sites to push industrial relations agendas, they devalue the importance of safety in the workplace. As indicated in the introduction to this paper, Master Builders acknowledges that unions play an important role in ensuring that workers are protected at work. However, unions are not work health and safety regulators and need to play a constructive role in 12

promoting safety at work instead of using it as an industrial relations weapon. Master Builders contends that there would be a reduction of WHS abuses and malpractice by adopting the 10 recommendations of the policy (see Box 2) formulated in February 2014, inclusive of the provisions now adopted in Queensland for 24 hours’ notice of WHS right of entry. Creating an environment of WHS best practice by eliminating the devaluing of ‘safety’ by permit holders under the guise of industrial relations purposes should be a top priority in reform of this area of the law. Box 2 List of recommendations for National Work Health and Safety Right of Entry Policy 2014:

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

1.

2.

3.

4.

5.

6.

7.

The person that seeks to rely on a reasonable concern about an imminent risk to his or her health and safety, as a defence to taking industrial action, has the burden of proving that the imminent risk exists. WHS permit holders that are found to have contravened their permit conditions should be prosecuted and the WHS permit holder’s permit should be suspended or revoked. WHS right of entry permit holders should be required to have completed site specific induction before being able to enter a site. Given the history and on-going occurrence of abuse of right of entry for WHS purposes in the building and construction industry, any right of entry for union officials should be subject to them being accompanied by an authorised inspector from the relevant regulatory body if requested by a PCBU who has management or control of the workplace. Only union officials who are ‘fit and proper persons’ should be entitled to exercise the right of entry under a permit issued by an independent government authority or judicial officer. The model WHS laws should specify that individuals with criminal records or a history of breaches of right of entry and related provisions under Commonwealth and/or State and Territory law should not be eligible to obtain a permit. Union officials exercising right of entry powers for WHS purposes should be required to hold approved nationally recognised WHS qualifications under the Australian Qualifications Framework system.

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Recommendation

8.

Each jurisdiction should amend its model Work Health and Safety Act to require any WHS permit entry holder wishing to enter a workplace to give at least 24 hours’ written notice during usual working hours in all circumstances. If a WHS permit holder fails to adhere to these notification requirements that WHS permit holder would be subject to a penalty for breaching a condition of the WHS entry permit and WHS regulators must rigorously apply the law.

Recommendation

9.

Each jurisdiction amend its model Work Health and Safety Act to require a WHS permit entry holder to provide a written report as soon as practicable but at least within 14 days from the date of entering a workplace. The report should be lodged with the regulator and served on the PCBU. It should, contain the following information: •

The WHS entry permit holder’s full name and signature;

•

The permit number;

•

The name and address of the workplace that was entered;

•

Details of conversations and actions taken by the WHS entry permit holder when attending the workplace;

•

Details of any alleged contravention of the Act that, in the opinion of the WHS entry permit holder, has occurred; and

•

Whether there was considered to be a serious risk to the health and safety of a person emanating from an immediate or imminent risk and, if so, any details about the situation known to the WHS entry permit holder.

Where multiple WHS entry permit holders attend a workplace on the same occasion, each WHS entry permit holder is required to submit an individual report. Failure by a WHS entry permit holder to provide a report in accordance with this provision should be grounds for a suspension or revocation of the WHS entry permit holder’s permit. Recommendation

10.

Each jurisdiction’s work health and safety regulator should implement a right of entry complaints system whereby persons conducting a business or undertaking are able to report suspected abuses of WHS right of entry. The 14

regulator would then be required to investigate the complaint and report back to the complainant within a reasonable period of time. It should be grounds for the suspension or revocation of the WHS permit holder’s permit if the WHS permit holder has been found to have intentionally breached WHS right of entry laws or has breached WHS right of entry laws on multiple occasions.

Conclusion This paper has argued for reform of the law relating to right of entry that would restore the balance expressed in the objects of Part 3-4 of the FW Act. Reform via passage of the 2014 Bill is essential in that process. Fundamental reform of WHS right of entry law should also occur. Master Builders’ policy is that the recommendations in Box 2 should be implemented as a new wave of reform.

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