The Acts and Regulations are very unclear about some provisions. And in some cases contradict their meanings. The main two areas of concern are:
1- What constitutes a “relevant worker” which mean two different things under the FW Act or the WHS Act.
2- The provisions pertaining to an “entry notice” which again is ambiguous, not so much under the FW Act but definitely under the WHS Act.
These two main provisions under the WHS Act are the most problematic, and it is exactly the ambiguity of these two points that the union uses to storm a construction site without warning and no formal valid reason, and think they can come and go as they please and disrupt production and work.
Fair Work Building and Construction say that a relevant worker under the WHS Act is anyone working in the building industry or on your job site, financial or non-financial, so that to me means that under the WHS Act the term relevant worker is irrelevant and should be replaces with anyone at the workplace whether a member of an organisation or not. I think this needs to be further qualified to not just be anyone, but to include, “financial union members and or individuals who wish to participate in union discussions or meetings”, this needs to me made clear. If there are no individuals in the workplace that fall into this category than there must be no valid reason for the union to enter and must only do so through a formal mechanism with strict conditions, and only on the builder terms, which would only be in the form of an invite.
I think the entry notice is the most important document the union must produce under WHS laws. It states that under certain circumstances the union can waive this right as contained in my document. I think this is a breach of their responsibilities. If they are truly concerned about WHS they should formalise their concerns in an entry notice so an employer (PCBU) can address the issues in a concise and efficient way and address their concerns. It is clear the union does not like formalising anything, because they can get away with harassment, and intimidation if they have free reign to do as they please. To just enter a workplace and start verbally rattling off what is right, wrong, inconsistent or breaches of the WHS Act does not help anyone. WorkCover does not engage in this type of activity, nor does any other organisation in the industry.
In addition, all persons must be inducted on site, and must follow site safety procedures and protocols. I think it is very important to have a separate process for visitors that are representatives of Industrial Relations organisations to ensure that we control our workplaces. Which includes a separate site register for unions, and a separate induction process for unions. Which includes a mechanism where we can film them while on our premises, but they are forbidden to take any film if entering under WHS provisions.
Finally as far as I can determine, there has not been a prosecution in NSW regarding forbidding the right of entry of a union official to a construction site under WHS provisions. There has been a case in Canberra where the employer was prosecuted, and this was a complicated issue. The bridge collapse in Canberra constituted a union investigation because it was a serious incident which gives them a right under the WHS Act. They then proceeded to another project under the control of the same builder just up the road. On that site the builder refused them entry as he stated they only have a right of entry on the site where the collapse occurred. It was deemed that the union had a right to investigate the builder WHS processes on all his sites considering he had a serious incident on one site, and that they had a right to protect their members. This is “fair enough” and in this case I think the union did have a right, but it proves it is difficult and almost no- existent to prosecute people under right of entry laws when it comes to WHS provisions, the FW Act is much clearer and has a much more concise format for builders and unions to follow.