High Court determination settles right of entry permit requirement

The requirement for union officials to hold a valid federal right of entry permit when entering work sites under State or Territory OHS laws has been upheld following a High Court determination.

The High Court on 8 April 2021 refused to allow the CFMMEU special leave to appeal a 2020 Full Federal Court decision.

The CFMMEU had sought to argue a union official did not need to produce their Federal permit when requested. The State of Queensland supported the CFMMEU’s argument intervening in the matter before both the Federal Court and Full Federal Court.

The High Court has dismissed the union’s application for special leave and ordered it to pay the ABCC’s legal costs. The ruling of the High Court states:

“There is no basis to doubt the correctness of the decision of the Full Court to warrant the grant of special leave. In relation to the first proposed ground of appeal, the Full Court applied the decision in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470. The second proposed ground raises no question of principle. It would be futile to grant the extension of time sought. Special leave should be refused.”

Background

In April 2018 the ABCC successfully sought a Federal Court injunction preventing seven CFMMEU officials from entering the Bruce Highway, Caloundra project site unless they complied with federal right of entry laws.

The seven CFMMEU officials were: Beau Seiffert, Te Aranui Albert, Blake Hynes, Luke Gibson, Mathew Parfitt, Royce Kupsch and Kurt Pauls.

The ABCC’s action followed the officials unlawfully entering the construction site on multiple occasions, causing delays and requiring the presence of Queensland Police.

On 23 October 2019 the Federal Court ruled union officials must hold and, when requested, show their federal right of entry permit when entering construction sites while exercising a state or territory OHS right.

The CFMMEU subsequently filed an appeal against the decision to the Full Federal Court. On 24 November 2020 the Full Federal Court dismissed the union’s appeal.

The CFMMEU on 24 December 2020 applied for special leave to the High Court to appeal the Full Federal Court's decision.

In making its determination the High Court has directed the CFMMEU to pay the ABCC’s legal costs arising from the union’s application for special leave. The matter will be scheduled for a penalty hearing before the Federal Court on a date to be determined.

What does this mean for the industry?

Union officials must hold a valid federal right of entry permit and must present it when asked to do so when entering a site under section 81(3) of the Work Health and Safety Act 2011 (Qld) or when exercising any other state or territory OHS right.

 Chronology

·        On 20 April 2018 the ABCC successfully sought a Federal Court injunction preventing seven CFMMEU officials from entering the Bruce Highway, Caloundra project site unless they complied with federal right of entry laws.

·        On 23 October 2019 the Federal Court delivered its judgment reinforcing the requirement that union officials must hold and, when requested, show a valid federal right of entry permit when entering construction sites whilst exercising a state or territory OHS right

·        On 18 November 2019 the CFMMEU filed an appeal against the Federal Court decision

·        On 24 November 2020 the Full Federal Court dismissed the CFMMEU's appeal.

·        On 24 December 2020 the CFMMEU applied for special leave to the High Court to appeal the Full Federal Court's decision.

·        On 8 April 2021 the High Court refused the CFMMEU special leave to appeal, with costs.

Where can you get more information?

The ABCC website has a right of entry permit list of building association officials who do not hold a valid federal entry permit or have conditions imposed on their federal entry permit.

You can also find the same information on the ABCC On Site app, available for free on Android and Apple smartphones and tablets.

What happens next?

The case has been remitted to the Federal Court for a penalty hearing. The ABCC will make submissions to the Court on appropriate penalties to be imposed on the CFMMEU and the seven named officials in this proceeding.

What can the ABCC do for you?

We will ensure right of entry laws are observed on building and construction sites throughout Australia. We are available to provide advice and assistance. We can tailor training on right of entry to meet your specific needs. We will investigate right of entry contraventions, and where appropriate, take the matter to court as we have done in this case.

As the building and construction regulator, we have an important responsibility to uphold the law. We are committed to ensuring the rights of permit holders and occupiers are protected and enforced.