LegalSeptember 09, 2020

FWC sheds light on how right of entry can be exercised during COVID-19 crisis

The Fair Work Commission (FWC) has in two proceedings provided guidance to employers and unions about how the right of entry should be exercised during the COVID-19 pandemic.

Denying access to premises may amount to a reasonable OHS request

In CFMMEU v Cape Preston Port Company Pty Ltd [2020] FWC 4502, the FWC delivered an opinion (rather than decision) about whether a company’s policy to refuse entry to a transhipper was a reasonable request to comply with an occupational health and safety (OHS) requirement.

On several occasions between March and June 2020, a CFMMEU official sought entry to the offshore loading vessel in the Pilbara region of Western Australia. The operator of the transhipper, Cape Preston Port Company Pty Ltd (CPPC), refused entry to the transhipper because of the risks posed by COVID-19. Only essential persons were allowed to access the transhipper.

Instead, CPPC allowed the union official to meet its employees in a meeting room situated within an onshore sampling station. CPPC argued that this was a reasonable request to follow an OHS requirement pursuant to s 491 of the Fair Work Act 2009 (Cth) (FWA).

Deputy President Colman stated in his opinion that CPPC’s requirement to meet at the sampling station, rather than the transhipper, was a reasonable OHS request. The evidence presented by CPPC demonstrated that this was a hazard reduction measure in response to COVID-19, consistent with the general obligations imposed by state and federal OHS laws to provide a safe working environment.

The evidence highlighted the heightened risk of COVID-19 transmission within the confines of the transhipper. Workers not only worked in the confined space, but also resided there and were in close contact with each other. Boarding and moving around the transhipper also involved the touching of common surfaces, such as handrails, ladder rungs and door handles. Moreover, the air-conditioning system in the transhipper serviced accommodation cabins, offices, meal and recreation common areas.

In contrast, the meeting room at the sampling station was much more spacious and allowed better social distancing. It also had a standalone split air-conditioning system. The meeting room accordingly had a lesser risk of transmission of COVID-19.

In light of all the evidence, Colman DP was of the opinion that the cautious approach taken by CPPC was proportionate to the risk and its consequences.

Deputy President Colman acknowledged that this was an exercise of balancing competing interests, but stated that the CFMMEU had not identified any specific reason why entry to the transhipper was important:

“Of course, a union is not required to identify any special reason for exercising rights of entry other than what is required by Part 3-4, however in a case such as this, when it is necessary to balance competing interests, the reason of the union for seeking access to a particular premises or part of a premises is relevant in the weighing of the stakes. The union does not say that there are special problems affecting employees on the transhipper, or that employees have complained that it is difficult to make time to meet in the sampling room, or that it is necessary to inspect plant or equipment on the vessel.”

Deputy President Colman noted that CPPC’s visitation restrictions also precluded employees from the company’s head office based in Perth from entering the transhipping. At the same time, CPPC accepted that in some circumstances, a union official may be considered an essential person, such as during a serious safety incident.

While the risk of COVID-19 transmission in Western Australia was much lower compared to the rest of the country, Colman DP accepted that the virus still posed an appreciable risk in the context of the transhipper. Indeed, the Western Australian Department of Health considered remote industrial sites to be high-risk environments for transmissions of infections.

Entry can’t be refused without compelling justification

In Bervar Pty Ltd t/a Della Rosa Fresh Food v United Workers’ Union [2020] FWC 4501, the FWC refused to make an order that would restrict the United Workers’ Union (UWU) from exercising its right of entry at a particular facility.

Bervar Pty Ltd (Bervar) asked the FWC to suspend the UWU’s right to physically enter its manufacturing and distributing facility in Campbellfield, Victoria until the state remains in a declared state of emergency. In the alternative, Bervar asked the FWC to make an order requiring UWU to raise the relevant matter with the company and consult with the FWC before exercising the right of entry. The arguments were raised on the grounds of s 491 and 499 of the FWA, which require permit holders to comply with any reasonable request by the occupier of the relevant premises to comply with an OHS requirement.

In this case, officials of the UWU had sought entry to Bervar’s facility on three separate occasions between April and June 2020. On all three occasions, entry was sought on the grounds of suspected breaches of OHS laws. The union claimed on each occasion that its members employed at the site had raised concerns about inadequate cleaning and physical distancing arrangements at the site to prevent the transmission of COVID-19. There were also complaints about other safety breaches unrelated to COVID-19 risks.

On the first occasion, a union official was allowed entry to the site but prevented from inspecting the premises. On the second occasion, the union officials were allowed to inspect three bathrooms and the canteen on the site. However, their request to speak to the cleaners and inspect the cleaning log was refused. On the third occasion, the union officials were not allowed to enter at all.

The FWC dismissed the case on the basis that there was no reasonable request with which the permit holders had failed to comply.

According to Colman DP, it would not be reasonable to state a blanket rule that no entry ought to be allowed during a state of emergency “in the absence of compelling justification supported by evidence”.

Bervar further failed to establish that its alternative requirements for entry amounted to an OHS requirement. The company did not produce sufficient evidence about the nature of COVID-19 transmission risk at its site. It also failed to establish that its alternative conditions for entry would be proportionate to the transmission risk. Deputy President Colman contrasted this case with CFMMEU v Cape Preston Port Company, where detailed evidence had been presented about the nature of the risk at the relevant premises.

Deputy Colman then offered the following guidance to both parties:

“I consider that, at the current time, when Victoria remains in a declared state of emergency and disaster, it would be a very good idea for the parties to cooperate and deal with any concerns about suspected contraventions remotely, in those cases where it is reasonably practicable to do so. Victorians have been told that, in order to defeat a pestilence, they must abide unprecedented restrictions. It would be appropriate in this setting that, where practicable, during the stage 4 lockdown, the union first contact the company and ask it to investigate and remediate suspected contraventions before seeking entry to the site, and that the company for its part actively cooperate by immediately investigating concerns raised by the union, reporting back, and taking any necessary remedial action.”

The case was subsequently dismissed.

So when can entry be refused to union officials because of COVID-19?

COVID-19 is forcing employers and unions to adapt to circumstances that had not been contemplated by existing right of entry laws. The two cases highlight that the appropriate response to union requests for entry will depend on the particular circumstances of each case.

Whether physical entry can legitimately be denied to union officials will depend on the location and nature of the workplace. Refusing entry is more likely to be appropriate in confined spaces, hotspot areas, where there is regular turnover in the workforce, or where vulnerable persons reside.

Where there is a high risk of transmission of COVID-19, entry to the site will generally be restricted as a matter of policy. Such policies should apply broadly to minimise the presence of all non-essential persons; refusing entry to union officials will be harder to justify where visitation restrictions are enforced on an ad hoc or inconsistent basis.

The reasons for exercising the right of entry may also be relevant to determining whether entry ought to be allowed. It may not be appropriate to refuse entry for safety-critical reasons, but it may be appropriate to suggest alternative arrangements for union officials wishing to hold general discussions with union members.

When refusing entry, employers should continue to engage and cooperate with union officials if they have legitimate grounds for entry. Where practical, cooperation may entail:

  • carrying out discussions in a virtual environment
  • providing an alternative site for union officials to meet employees (eg in a room that allows better social distancing and that has better ventilation), and
  • investigating and addressing complaints about suspected safety breaches and keeping union officials informed about the measures that have been taken to rectify the situation.

If entry is being refused in order to limit the risk of COVID-19 transmission, union officials should also be advised about the circumstances in which entry would be allowed again. In doing so, indicators that will be used to confirm that the risk of transmission has abated to an acceptable level should be communicated to the relevant union officials.

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