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Court decision closing right of entry loophole means unions must play by the rules


The move by the Full Federal Court to close a loophole that allowed building union officials to bypass right of entry laws is good for the industry and the community.

The Full Bench decision (Australian Building and Construction Commissioner v Powell [2017] FCAFC 89) has overturned an earlier decision (Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287) which found that union officials could bypass normal rules upon entering a workplace if invited by a health and safety representative.

Shaun Schmitke, Master Builders Australia’s National Director of Safety and Workplace Relations said the earlier decision risked being seen by building union officials as a green light to ignore right of entry laws simply by saying they had been ‘invited’ to the workplace. “It would also have enabled officials who no longer held permits, having been deemed as not fit and proper, to enter building sites,” he said.

“Not only would this give building union official unfettered access to every workplace without any rules or conduct obligations, it would represent a further exploitation of safety laws as a tactic to pursue unrelated industrial relations outcomes,” Shaun Schmitke said.

“The abuse of safety laws to bypass normal entry rules has been found by two Royal Commissions to be a common tactic of the building unions. Such tactics undermine the purpose of safety laws and put into jeopardy improved industry safety culture and outcomes,” he said.

“Closing this loophole means building unions must play by the rules which is good for safety and means building sites can be just like any other normal workplace,” Shaun Schmitke said.

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