In this article, we analyse CFMEU (NSW Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture  NSWIRComm 1000 (17 January 2017) (the Decision).
Acciona Infrastructure Australia and Ferrovial Agroman (Australia) Pty Ltd, trading as the Pacifico Acciona Ferrovial Joint Venture (Pacifico), was upgrading part of the Pacific Highway in northern NSW (Site).
Telum Precast (NSW) Pty Ltd (Telum) was a Pacifico subcontractor on the Site.
The CFMEU and the AWU were in competition to sign up and represent members on the Site. The competition became hostile and the CFMEU alleged that an employee of Pacifico, known as ‘Doc’ was harassing and bullying Telum employees and causing some to appear anxious and stressed.
The CFMEU concluded that Pacifico was in breach of Section 19 of the WHS Act, which provides that Pacifico must ensure, so far as is reasonably practicable, the health (including ‘psychological health’) and safety of its workers.
On that basis, CFMEU officials who held entry permits:
concluded that they had a right to enter the Site under the WHS Act as they had formed a reasonable suspicion that there had been a contravention of the WHS Act; and
gave Pacifico a notice of intent to enter the Site (i.e. under section 119 of the WHS Act) to inquire into a suspected contravention of the WHS Act.
Pacifico asked for more information about the suspected contravention of the WHS Act and refused entry on the basis that right of entry (ROE) was not triggered because:
unsubstantiated and non-specific allegations of bullying did not amount to a reasonable suspicion that there had been a breach of the WHS Act; and
ROE is not triggered if the permit holder does not hold a reasonable suspicion that there had been a breach of the WHS Act.
The NSW Industrial Relations Commission determined that unsubstantiated and non-specific allegations of bullying did not amount to a ‘reasonable suspicion’ that there had been a breach of the WHS Act and accordingly, a ROE was not triggered under the WHS Act.
In explaining what constitutes ‘reasonable suspicion’ under section 117 of the WHS Act, Murphy C said that:
The word ‘reasonably’ requires an objective assessment of evidence used to form the requisite reasonable suspicion. Accordingly, the genuine beliefs of the CFMEU officials as to whether there had been a breach of the WHS Act were not relevant.
Reasonable suspicion is not an arbitrary measure and is ‘less than a reasonable belief but more than a possibility’.
Murphy C said that the relevant question was:
“whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site.”
Murphy C determined that the hearsay evidence and direct observations of workers appearing stressed, anxious and uncomfortable, did not possess the requisite probative value and thus the section 117 right of entry was not triggered.
It is not easy to establish a right to enter a workplace for safety purposes. The assertion by a permit holder that ‘they hold a reasonable suspicion of a breach of the model Work Health and Safety Act (WHS Act)’ is insufficient to establish a right to enter a workplace. If a person enters a workplace without having a right to do so, that person is trespassing.
A ROE for safety purposes is granted under section 17 of the WHS Act in specific circumstances. The Decision provides that ROE is only triggered if the permit holder has probative evidence of a reasonable suspicion that there has been a breach of the WHS Act.
will likely ‘blunt’ the purported use of ROE under the WHS Act, as a way to avoid seeking ROE for industrial relations purposes under the Fair Work Act 2009 (Cth) – the latter having been regarded as more difficult to establish;
requires business and union officials to reconsider their processes around ROE for safety purposes;
applies to all model WHS Act jurisdictions (i.e. Victoria and WA are not covered by the model WHS Act, however the Decision will have influence in those jurisdictions); and
reinforces the primacy of substantive safety in the context of ROE under the WHS Act.
Make sure you review your policies and processes around ROE for safety purposes.
  NSWIRComm 1000 at .
  NSWIRComm 1000 at , emphasis added.
  NSWIRComm 1000 at -.
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