Ramsay v Menso

In the case of Ramsay v Menso, the appellants sought declarations that the first respondent had breached sections 501 and 502 of the Fair Work Act 2009 by refusing their entry onto a site where they suspected contraventions of the Workplace Health and Safety Act 2011. The dispute involved three instances of refusal of entry, culminating in the appellants filing an application for relief on 12 April 2016. The primary judge found that while the appellants had a valid notice of entry in their possession, the notice itself was invalid due to incorrect information regarding their names. Specifically, the notice omitted their middle names and incorrectly listed one of the appellants’ names as “Tony” instead of “Anthony.” The primary judge concluded that the invalid notice rendered the appellants’ entry attempt unlawful, despite their contention that the power under section 117 of the WHS Act did not require a notice prior to entry.

The court was required to decide whether the failure to include the permit holders' middle names in the notice of entry invalidated it and, consequently, the right of entry. The court also had to determine whether the notice of entry must be completed before entry is attempted, and whether the non-compliance with the requirements of section 119 of the WHS Act rendered the entry attempt invalid. Additionally, the court needed to assess whether the refusal to provide a valid notice of entry, despite meeting other requirements under section 117 of the WHS Act, constituted non-compliance with Division 2 of Part 7 of the WHS Act.

The court reasoned that the right to enter premises under the WHS Act is subject to strict compliance with sections 118, 119, and 120 of the WHS Act. A valid notice of entry is mandatory, and any deviation from the prescribed format, such as omitting middle names, invalidates the notice. The court emphasised that when individual rights are interfered with, strict adherence to the legal requirements is imperative. This strict interpretation ensures that the power to enter premises is not exercised arbitrarily and maintains the balance of rights under the WHS Act. Consequently, the primary judge's finding that the appellants had not validly exercised the right of entry due to the invalid notice was upheld. The appeal was allowed, and the matter was remitted to the Federal Circuit Court to determine questions of penalty and other orders.