The Case

Acciona Infrastructure Australia and Ferrovial Agroman (Australia) Pty Ltd, trading as the Pacifico Acciona Ferrovial Joint Venture (Pacifico), was involved in an upgrade of the Pacific Highway in northern New South Wales. Telum Precast (NSW) Pty Ltd (Telum) subcontracted to Pacifico on the project.

The Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Workers’ Union (AWU) were both campaigning to join up members to represent them on the project. The CFMEU alleged that a Pacifico employee was harassing and bullying Telum employees.

The CFMEU alleged that Pacifico breached s19 of the Work Health and Safety Act (WHS Act), alleging that Pacifico was not ensuring, so far as reasonably practicable, the health and safety of its employees. The CFMEU sought a right of entry due to their reasonable suspicion of a contravention of the WHS Act.

Pacifico refused entry indicating that non-specific and unsubstantiated allegations of bullying did not amount to a reasonable suspicion of a breach of the WHS Act.

The Verdict

The NSW Industrial Relations Commission (NSWIRC) held that unsubstantiated and non-specific allegations of bullying were not sufficient to discharge the requirement of a ‘reasonable suspicion’ that there had been a breach of the WHS Act. Hence, no right of entry was permitted.

Commissioner Murphy indicated that a ‘reasonable suspicion’ under s117 of the WHS Act requires an objective assessment of evidence and was “less than a reasonable belief but more than a possibility”. There needed to be “some factual basis, some material or materials with probative value”.

The NSWIRC held that hearsay evidence and direct observations did not possess the requisite probative value.

Lessons

To establish a right to enter a workplace for safety purposes is not easy. The permit-holder must hold probative evidence of a reasonable suspicion of a breach of the WHS Act. A reasonable suspicion in the absence of such evidence will not suffice. If a person enters a workplace without having a right of entry then a trespass occurs.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.