Several interesting developments have come out of ongoing litigation between BMD Constructions, a construction company and principal contractor on the Centenary Bridge Upgrade (Project) in Queensland, and the Construction, Forestry and Maritime Employees Union (CFMEU). Decisions in this ongoing litigation highlight the complex and challenging interaction between work health and safety (WHS) obligations on businesses and union rights of entry under the Fair Work Act 2009 (Cth) (Fair Work Act).

During the Project, several CFMEU officials sought to enter the construction site under the Fair Work Act and sections 117 – 119 and 128 of the Work Health and Safety Act 2011 (Qld) (WHS Act).

In its various applications, BMD argued that:

• Some conduct during or associated with the rights of entry created unsafe conditions, especially during the performance of safety-critical tasks, which conduct included blockading to prevent concrete pours and site entry, intimidating and harassing workers, and jumping fences to enter the site after being refused entry;
• Site inductions were a critical WHS control;
• Entries by some union officials were done without first completing site-specific inductions and adhering to sign in protocols; and
• Non‑inducted entry might create foreseeable WHS risks in a dynamic construction environment.

In granting interlocutory injunctive relief, the Federal Court found that BMD had established a case of sufficient strength to warrant the making of orders requiring union officials exercising rights of entry to first complete site WHS inductions and barred union officials from obstructing access to the Project. Specifically, the Federal Court was satisfied that BMD had a sufficient case to ground a reasonable request under section 499 of the Fair Work Act in respect of permit holders seeking to enter the site.

However, the Court also noted that a site induction process is not mandated by the WHS Act, and that whether BMD’s induction requirement could be regarded as a necessary and sufficient response to its obligations under the WHS Act and was reasonable under section 499 of the Fair Work Act and section 128 of the WHS Act, are matters expressly reserved for final determination at trial. The litigation on those questions remains ongoing.

This interim finding is still significant for any Person Conducting a Business or Undertaking (PCBU) – as that term is defined in the WHS Act – dealing with unions seeking to exercise rights of entry on their sites. The conduct of unions on a PCBU’s sites are regulated by the WHS laws in their State and PCBUs can consider the imposition of reasonable WHS protocols on site entry.

PCBUs are reminded of the following take aways from this ongoing litigation:

1. Reinforces the centrality of WHS inductions

Site inductions are central to a PCBU’s management of WHS risks on work sites (particularly for construction workplaces). The purpose of site WHS inductions is to communicate to those on site, including workers, visitors and contractors, site specific hazards, risks and controls and union officials exercising rights of entry should also observe that important process.

2. Clarifies limits of WHS entry rights

WHS rights of entry should not be exercised in ways that create or heighten WHS risks and they cannot override reasonable site WHS protocols.

3. Highlights WHS risks during industrial disputes

The case shows how certain conduct, such as physical blockades, can endanger workers during safety-critical tasks.

4. Demonstrates court readiness to intervene on WHS grounds

Courts may restrain conduct that undermines safe operations on construction sites and order that reasonable WHS measures be observed.

A final note for PCBUs

Right of entry disputes can be highly charged and urgent, and employers as PCBUs must balance rights of entry with ensuring the health and safety of its employees, workers and visitors on their site. Although union officials have special rights of entry allowing them to enter workplaces, they are also visitors on site, and they should follow reasonable safety requirements, consult with the site operator and be kept safe in the same way as any other visitor on site.

Yet to commence amendments to the WHS laws in Queensland, granting additional powers to union members and health and safety representatives on site, are in a state of flux with the legislated amendments postponed and now completely omitted.

HWLE will provide further updates on these matters in the coming weeks.

This article was written by Danielle Flint, Partner, and Robert Malcolm, Senior Associate.