Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287

FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287 File number: VID 704 of 2014

Judge: BROMBERG J

Date of judgment: 3 November 2016

Catchwords: INDUSTRIAL LAW – right of entry – Fair Work Act 2009 (Cth), s 494 – Occupational Health and Safety Act (Vic), ss 58(1)(f) and 70 – application by the Director for penalties for breach of s 494 of the FW Act – where an official of a union entered a workplace to assist the health and safety representative under s 58(1)(f) of the OH&S Act – where the official did not hold an entry permit under the FW Act – whether the official was in breach of s 494 of the FW Act – whether ss 58(1)(f) and 70 of the OH&S Act confer a right of entry to an assistant – consideration of the nature of a right – whether any right conferred to an assistant by the OH&S Act amounts to a State or Territory OHS Right under s 494 of the FW Act – whether s 494 is concerned only with rights conferred upon unions for the purposes of representation of employees – any right conferred to an assistant under ss 58(1)(f) and 70 is not a right of entry the subject of s 494 – application dismissed

Legislation: Conciliation and Arbitration Act 1904 (Cth) (repealed) s 42A Fair Work Act 2009 (Cth) ss 4, 6, 12, 26, 27, 152, 186, 194, 253 478, 480, 481, 482, 483, 483A, 483B, 483C, 484, 486, 487, 488, 489, 490, 491, 492, 492A, 493, 494(1), 494(2), 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 510, 512, 513, 514 Industrial Relations Act 1988 (Cth) (superseded) ss 286, 306 Industrial Relations Act 1979 (WA) ss 49I, 49J Industrial Relations Act 1996 (NSW) s 299 Migration Act 1958 (Cth) s 36(3) Occupational Health and Safety Act 1985 (Vic) (repealed) s 32 Occupational Health and Safety Act 1989 (ACT) (repealed) ss 75, 77 Occupational Health and Safety Act 2000 (NSW) (repealed) ss 76, 77 Occupational Health and Safety Act 2004 (Vic) ss 43, 44, 58, 59, 70(1), 70(2), 85, 87 Summary Offences Act 1966 (Vic) s 9 Work Health and Safety Act 2011 (NSW) ss 55, 56, 68, 69, 85, 90 Work Health and Safety Act 2012 (SA) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) Workplace Health and Safety Act 1995 (Qld) (repealed) Workplace Health and Safety Act 1995 (Tas) (repealed) Workplace Health and Safety Act 2007 (NT) (repealed) ss 50, 51, 52, 53 Workplace Relations Act 1996 (Cth) (superseded) ss 16, 285A, 285B, 285C, 285E, 736, 741, 742, 744, 747, 756, 760 Explanatory Memorandum, Fair Work Bill 2008 (Cth)