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The Federal Court has dismissed a case brought by Fair Work Building and Construction (FWBC) against a CFMEU official for entering a work site in response to a request from a health and safety representative (HSR) for assistance made under Victorian occupational health and safety legislation.

Slater and Gordon represented Mick Powell, then a CFMEU organiser, in a proceeding brought in the Federal Court by the FWBC (now the ABCC) alleging that Powell had breached s 494 of the Fair Work Act by going on site in response to the HSR’s request without a Federal right of entry permit.

Prior to the FWBC case alleging breaches of the Fair Work Act, Powell had also been arrested and charged with trespass by Victoria Police for going on site. Slater and Gordon also represented Powell in the criminal proceedings.

The criminal prosecution was eventually dropped, but not before it was revealed in a bail hearing that the trespass charge was based on advice from the FWBC to Victoria Police that Powell was on site in breach of the Fair Work Act.

That advice has now been proved to be incorrect, with Justice Bromberg finding in November 2016 that Powell was not exercising a right under a State OHS law by going on site, the relevant right being conferred on the HSR, and that Powell was therefore not required to hold a Federal right of entry permit.

This decision recognises:

  • the important right of HSRs to request a person of their choosing to attend their workplace to assist them in performing their duties under OHS/Work Health and Safety (WHS) legislation.
  • The role of health and safety representatives, who are appointed by workers, is to be a voice of labour in occupational health and safety matters.
  • The importance of that role is recognised through the powers that are conferred on health and safety representatives by State OHS/WHS Acts.

Instead of recognising that role and allowing the OHS/WHS legislation to work the way it’s supposed to, the FWBC, for its own political reasons, has attempted to undermine the important role of HSRs and place restrictions on how they exercise their powers.

At the time Powell was arrested, both the then federal Employment Minister, Eric Abetz, and the Director of the FWBC, Nigel Hadgkiss, had been making public statements criticising Victoria Police for not arresting more CFMEU officials for going on site.

We now know that the FWBC was also giving legal advice to the police to encourage them to arrest CFMEU officials.

As such, not only have the FWBC and the federal Government been caught attempting to use Victoria Police to advance their own political agenda, they have been caught doing so on the basis of incorrect legal advice.

The ABCC has filed an appeal against this decision.

Director of FWBII v Powell [2016] FCA 1281

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