Union Right of Entry: What does it mean and what happens when officials overstep?

Union officials with a valid permit have a right to enter a workplace to hold discussions with employees or investigate suspected contraventions of the Fair Work Act and other instruments such as awards and enterprise agreements.

What happens if these officials hinder or obstruct your workplace?

Section 500 of the Fair Work Act prohibits permit holders from intentionally hindering or obstructing any person or acting in an improper manner.

Section 503 of the Fair Work Act prohibits people from recklessly or intentionally giving the impression that doing something is authorised when it is not.

We can look at the case below to see how these sections of the Fair Work Act work to protect workplaces from any obstruction or false impression given by union officials. The first and second respondent’s Mr Blakeley and Mr Gibson were Union Officials from the Construction, Forestry and Maritime Employees Union (CFMEU). The third respondent was the CFMEU itself.

Fair Work Ombudsman v Blakeley [2023] FCA 1597

What happened?

In 2020, a construction project was underway at a Coles Distribution Facility. The principal contractor engaged QR Construction (QRC) to perform concreting services. Workers hired by QRC were hired under a non-union Enterprise Agreement.

QRC scheduled a concrete pour at the distribution facility in the early hours of the morning of 28 February 2020. 50-60 truckloads of concrete needed to be used within 60-75 minutes to prevent the concrete from setting inside the trucks. After the workers prepared for the pour, Mr Blakeley and Mr Gibson entered the worksite under the guise of checking access, egress and lighting.

Mr Blakeley and Mr Gibson stood in positions that prevented the trucks from pouring the concrete. The respondent’s refused to move and obstructed trucks that attempted to move. The police were called to attend the site, and Mr Blakeley told officers;

“We can stop works if we think it’s unsafe under the Act… it’s a matter of interpretation and unfortunately that’s how the workplace health and safety act works.”

The officers did not take any action and left the site. The concrete pour was unable to proceed. Approximately $25,000 worth of concrete was lost.

What did the Court say?

Mr Blakeley admitted to one contravention of s 503 of the Fair Work Act, accepting that his statement to police conveyed the impression that he was authorised by the Work Health and Safety Act to stop work. The CFMEU also accepted that this impression was made.

The court declared that Mr Blakeley and Mr Gibson contravened s 500 of the Fair Work Act by improperly exercising or seeking to exercise a right conferred by the Act by:

a) standing directly in the path of a reversing concrete truck, so as to prevent it from discharging its load of liquid concrete;

b) manoeuvring themselves to ensure that they remained in the path of the concrete truck, despite its attempts to move around them; and

c) refusing to move from the path of the concrete truck, despite repeated requests.

The Court also declared that the CFMEU was “involved” with the contravention, which is to be treated as an actual contravention as per s 550 of the Fair Work Act.

What were the consequences?

• Mr Bzakeley was ordered to pay pecuniary penalties totalling $14,000.

• Mr Gibson was ordered to pay pecuniary penalties totalling $7,000.

• The CFMEU was ordered to pay pecuniary penalties totalling $150,000.

Discussion

This case illustrates that the Court will take breaches of the Fair Work Act seriously. Permit holders who intentionally hinder or obstruct any person or otherwise act in an improper manner will be held responsible. Permit holders who make false representations will also be penalised. This acts as a significant deterrent for union officials against obstructing or hindering any workplace entered. However, the $25,000 loss of project materials remains a concern. Penalties under s 500 and 503 of the Fair Work Act do not award damages to parties adversely affected by the union right of entry.

As lawyers working in the employment space, we have noticed an increase in employer clients seeking advice and direction about union right of entry. If you need guidance or a review of your employment law practices, please don’t hesitate to contact us for a consultation.

This article is general in nature and is not legal advice. If you need help dealing with union right of entry or another employment law matter, or require assistance with updating your workplace contracts, procedures and policies, Voice Lawyers hear you.

We help people navigate the complexities of workplace laws with confident, practical advice. You can contact us at voice@voicelawyers.com, give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.

By Ruby Harris and Kayte Lewis.