Don’t Let Union Visits Induce Headaches: Lessons from Recent CFMMEU Penalty Decision

In a recent decision, the Federal Court has imposed a six figure fine on the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and six former and current officials for right of entry breaches.

The case was originally brought against the CFMMEU in the now-defunct Australian Building and Construction Commission (ABCC) in 2020. The Court found that the CFMMEU officials had breached section 500 of the Fair Work Act on four separate occasions in 2018 when they had entered the Logan and Gateway Motorways expansion sites in Brisbane. On separate days, the officials entered the premises, walked around, failed to display or produce entry permits when requested and refused to leave when asked. The CFMMEU claimed that its officers “were exercising their rights under the State’s Work Health and Safety Act to attend discussions to resolve safety concerns.” The Court however found that the officials had breached the right of entry rules and collectively the CFMMEU and six officials were penalised a total of $328,000. In imposing the penalties, Justice Collier said, “I am satisfied that the [union] has a substantial record of contravening the Fair Work Act.”

The penalties highlight the importance of complying with right of entry laws, which are designed to ensure that union officials can enter workplaces to talk to employees about work-related matters, but without disrupting work and without causing safety hazards. Whilst the Fair Work Act provides the right for union officials to enter a premises for prescribed reasons, employers also have the right to ask union officials for their entry permits, to ask them to comply with safety requirements, and to object to their entry if they believe it is not for a legitimate work-related purpose.

Employers should ensure they have policies and procedures in place for managing union visits, including training for staff on their rights and obligations. They should also have clear processes for verifying union officials’ identities and permits, and for handling disputes or objections to their entry. Additionally, employers should ensure that their workplaces are safe and secure, and that any union visits do not compromise safety or productivity.

To help employers manage right of entry risks, our law firm has developed a comprehensive guide to Right of Entry that covers the legal requirements, gives examples of entry notices and permits and practical tips related to union visits. The guide is designed to equip employers and their staff with the knowledge and skills needed to manage union visits effectively, and to minimise the risk of breaches and disputes.

Key Takeaway

• Entry notices and permits must be provided and received before the entry into the premises of employees.

References CFMMEU Fair Work Ombudsman decision