The Australian Federal Court has closed a loophole that allowed CFMEU officials to enter building worksites, despite the Palaszczuk government supporting the union’s right to do so.
On Wednesday this week, Justice Berna Collier upheld the Australian Building and Construction Commission’s position that unions need federal permits to enter worksites, dismissing Queensland Industrial Relations Minister Grace Grace’s arguments to the contrary “as nonsense”.
The decision could mean that union officials visiting worksites could be subject to arrests under trespassing laws.
Currently, under workplace health and safety laws (section 18), CFMEU officials can freely visit worksite without permits if they are seeking to assist a health and safety representative.
This goes against the Fair Work Act, which requires union officials to have permits when exercising entry rights.
The ABCC believes that permits should be required because officials were still exercising a right to enter worksites, and Justice Collier agreed and upheld their interpretation. “As a general principle, I agree with the commissioner that it would be a nonsense to accept the argument advanced by the [CFMEU officials] (and the minister),” she said.
“Indeed, the fact that all individual respondents refused to leave the site despite being asked by representatives of the joint venturers to do so indicates that the individual respondents believed that they had exercised a right to enter the site in accordance with the WHS Act.”
CFMEU officials indicated that they were considering their options after the decision, but would likely appeal.
The Federal Court will list the matter for a penalty hearing at a later date.