Fair Work and WHS right of entry terms can work together

Cases

Fair Work and WHS right of entry terms can work together

The Federal Court has ruled the right of entry provisions in the Fair Work Act can be initiated on workplace health and safety grounds, since they were intended to add to the requirements of the model workplace health and safety legislation, rather than being treated as totally separate provisions.

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The Federal Court has ruled the right of entry provisions in the Fair Work Act can be initiated on workplace health and safety grounds, since they were intended to add to the requirements of the model workplace health and safety legislation, rather than being treated as totally separate provisions.
 
Background to the case
 
Four CFMEU officials attempted to enforce a right of entry to investigate reports that workers were being exposed to asbestos, based on each of them holding an entry permit issued under s512 of the FWA and a Work Health and Safety entry permit issued under s134 of the Work Health and Safety (National Uniform Legislation) Act 2011 as it applied in the Northern Territory.
 
The employer argued the union and/or its officials could not pursue an action because it allegedly breached the entry provisions of the Fair Work Act (FWA), since they entered its worksite for WHS purposes.
 
The union officials claimed the Northern Territory employer contravened sections 501 and 502(1) of the FWA in delaying, hindering and obstructing them when they attempted to enter a site to investigate the asbestos exposure reports.
 
The CFMEU argued that s117 of the WHS Act provided a right to enter a workplace to inquire into a suspected contravention of the WHS Act and this could be enforced with a right of entry exercised under Fair Work legislation.

Statutes can work together
 
The court ruled against the employer, finding the legislation did not conflict.
 
The employer argued the only actual entitlement to enter its site for WHS purposes was the one contained in section 117 of the WHS Act, noting that the WHS Act had equivalent provisions to sections 501 and 502 of the FWA that prohibited delaying or obstructing entry permit holders and the intent of the legislation was that only NT WorkSafe (in this case) could launch proceedings relating to breaches of the WHS Act.
 
Justice John Reeves noted the federal (harmonised) Work Health and safety Act 2011, the federal Fair Work Act 2009 and the Northern Territory Work Health and Safety (National Uniform Legislation) Act 2011 were in contention with each other, with the issue being whether these pieces of legislation could co-exist and operate concurrently.
 
He wrote that right of entry provisions in the FWA were intended to add requirements to those in the model WHS Act without otherwise affecting them:
 
‘[T]he provisions of Part 3–4 of the FWA were intended to add requirements to those in the WHS Act without otherwise affecting them. This is confirmed by the Explanatory Memorandum to the Bill for the FWA. There, division 3 of Part 3–4 was said to impose 'additional requirements on permit holders exercising a right of entry under State or Territory OHS legislation', whilst not overriding those rights, but expressly saving them.’
 
He added the states and territories were similarly permitted to make laws that were intended to operate interactively with Commonwealth legislation. This did not impact on the Commonwealth's exclusive power to make whatever industrial laws it considered appropriate.
 
Message for employers: Industrial laws and workplace health and safety laws are designed to complement each other and so the technical arguments presented in this case were rejected by the court.
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