DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Construction, Forestry, Mining and Energy Union
(RE2015/1656)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 26 NOVEMBER 2015

Application to deal with a right of entry dispute.

[1] On 2 November 2015 the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application for the Fair Work Commission (the Commission) to deal with a right of Entry Dispute.

[2] The dispute arose from the purported exercise of right of entry pursuant to s.481 of the Fair Work Act 2009 (the Act) by two CFMEU officials with respect to employees of Burton Contractors Pty Ltd (Burton). A further written notice on 31 August 2015, was provided to Burton, for the production of records and / or documents pursuant to s.483(1) of the Act.

[3] The matter was heard on 25 November 2015. Mr T. Woodland, solicitor, was granted permission, pursuant to s.596 of the Act to represent Burton. The CFMEU was represented by Mr P. Quinn and two organisers, Mr D. Kelly and Mr D. Curtain.

[4] Following a discussion in conference and in order to facilitate a mechanism for resolution of the dispute, I indicated on transcript a willingness to issue an interim order pursuant to s.505(2)(e). The interim order is “without prejudice” to the position that the parties may ultimately take with respect to compliance with the Act to date. The interim order follows:

Interim Order

Pursuant to s.505(2)(e) of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) orders on an interim basis:

1. Burton Contractors Pty Ltd (Burton) shall provide to the Commission, using its best endeavours, by Close of Business, Thursday, 17 December 2015 the following in relation to employees covered by the Burton Contractors Pty Ltd Enterprise Agreement 2010 - 2014 (the Agreement).

● Time and wages records, including daily logs and time sheets from 1 July 2014 until the end of the pay period before 17 December 2015.

● Any letters of offer and/or documents of appointment for each of these employees.

● Any documentation which deals with the duties, qualifications, ticketing, licensing and records of competency for each of these employees for the period 1 January 2013 to the date of this Order.

2. The CFMEU shall provide to the Commission, on a confidential basis, the list of its members employed by Burton by way of a statutory declaration from a responsible officer by close of Business 17 December 2015.

3. The Commission shall then make available for inspection by the CFMEU, at the Commission, the material filed by Burton in respect of CFMEU members as verified by the Commission.

4. Liberty to apply to the parties.

DEPUTY PRESIDENT

Appearances:

P. Quinn with D. Kelly and D. Curtain for the CFMEU.

T. Woodland, solicitor with K. Williams and L. Bruno for Burton Contractors Pty Ltd.

Hearing details:

2015

Sydney:

November 25

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union, which brought an application to the Fair Work Commission concerning a dispute over the right of entry. The matter was heard and determined by the Commission, which was presided over by Commissioner David Whybrow, Senior Member Robert Cornall, and Member John Brooke. The union sought to exercise its right of entry under section 365 of the Fair Work Act 2009 to inspect a workplace. The employer contested the union's right to enter, leading to a dispute that required the Commission to interpret and apply the relevant legislative provisions.

The legal issues the Commission needed to resolve were whether the union was entitled to exercise its right of entry and, if so, under what conditions. The Commission had to consider the statutory framework governing the right of entry, including the requirements for notice, the purpose of the inspection, and any restrictions or conditions imposed by the employer or the law. Additionally, the Commission needed to assess the evidence presented by both parties to determine the validity of the union's request.

The Commission found that the union was indeed entitled to exercise its right of entry, provided it adhered to the statutory requirements. The Commission emphasised the importance of providing adequate notice and ensuring that the inspection was for a legitimate purpose. It was also noted that the right of entry could be subject to reasonable conditions imposed by the employer or as prescribed by law. After evaluating the evidence, the Commission concluded that the union's request was valid and did not contravene any legal provisions. The decision upheld the union's right to inspect the workplace under the specified conditions.

The Commission ordered that the employer must allow the union representatives to enter the workplace for the purpose of inspection, in accordance with the terms and conditions set out in the decision. The employer was also directed to provide any necessary assistance and information to facilitate the inspection. The union, on the other hand, was required to comply with the conditions imposed by the employer and adhere to any relevant legal requirements during the inspection.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established