‘Right of entry’ under NSW OHS law clarified in court

In the recent case John Holland v CFMEU, the Federal Court has clarified union entry under the OH&S Act applies to a more specific class than under the NSW State IR Act. Union organisers who were employed by the company were held not to have been authorised to have entered under the OHS legislation.

The organisers said they were not required to give 24 hours notice of their entry as it was an OHS issue.

It was found by the Federal Court that the OHS legislation was intended to limit the class of union members who could enter a site. Justice Moore required the status of the organisation's representative was required to be an ‘officer’ who had a substantial connection to the industrial organisation, have some influence over management decisions of the union or policy development and not just an employee. The IR Act evinces a different intention to entry — to hold discussions, a relatively broad and non-complex purpose.

The employees were not found to be officers under the state OHS legislation.

Workplace lawyer Andrew Douglas, principal of Douglas Workplace & Litigation, commented that “employers should be aware of the rights of entry legislation applicable in their state, as often unions may try to gain entry through using an OHS excuse and often seek something else to chase once they have entered”.