Fair Work contraventions for company, director and site manager after refusing union entry

The Federal Circuit Court of Australia has declared that the conduct of a company director and site manager in refusing a union representative entry meant that the company had also participated in the contravention.

In Construction, Forestry, Maritime, Mining & Energy Union & Ors v Hanssen Pty Ltd & Ors [2019] FCCA 1664, the Court found that Hanssen Pty Ltd (Hanssen) as well as Hanssen’s director and site manager had contravened ss 501 and 502 of the Fair Work Act 2009 (Cth) (FW Act).

What happened?

Hanssen was the principal contractor at a construction site in Perth. On 9 December 2016, two representatives from the Construction, Forestry, Maritime, Mining & Energy Union (CFMMEU) attempted to enter the site to investigate possible contraventions of the Occupational Health and Safety Act 1984 (WA).

Both CFMMEU representatives held entry permits in accordance with the FW Act, which entitled them to enter the premises to investigate suspected contraventions of occupational health and safety laws. They advised the Site Manager that the suspected safety breaches were based on a number of photographs that the CFMMEU representatives had received from someone at the site. This led them to believe there were recent and potential safety concerns on Hanssen’s site, including a failure to provide workers with fall prevention equipment. The Site Manager advised the CFMMEU representatives that he could not allow them entry and that they needed to speak with his manager (a director of Hanssen) before allowing them entry to the site.

What does the law say?

Section 501 of the FW Act prohibits a person from “refusing or unduly delaying” entry to premises to a permit holder, while s 502 prohibits a person from intentionally “hindering or obstructing” a permit holder from exercising their rights.

Outcome

The Court found that the Site Manager had authority to control entry onto Hanssen’s premises. Accordingly, by imposing a requirement that he speak to Hanssen’s Director before allowing the CFMMEU representatives on site, the Court held that the Site Manager had breached ss 501 and 502 of the FW Act as he:

• effectively refused entry to the CFMMEU representatives, and
• hindered and obstructed the CFMMEU representatives, as he was indifferent as to whether or not they were permit holders.

The Court heard evidence that the Site Manager brought the Director to the area outside the site where the CFMMEU representatives were waiting. A conversation between the Director and one of the CFMMEU representatives then ensued. The Court found that the Director was “aggressively defiant” and assumed an “entrenched position…that he was not going to allow entry”. Accordingly, the Court found the Director had also contravened ss 501 and 502 of the FW Act.

The Court found, having regard to the conduct of the Director and Site Manager, that the company had also participated in the contravention.

What does this mean for PCBUs?

Occupiers of premises should ensure that any workers, in particular those with authority to control entry onto the premises and those who deal with union arrivals at site, know what rights permit holders have and how to respond when they seek entry onto site.