Intent Versus Practice: A Costly Mistake for a Queensland Site

A recent court decision has seen a construction union successfully appeal one of its official’s contraventions while exercising their right of entry. This has brought to light the importance of ensuring occupiers have up to date work health and safety (WHS) policies regarding visitors and ensuring that those policies are being consistently followed and abided by.

A union official of the Queensland CFMEU has potentially escaped penalties for a contravention of s.499 of the Fair Work Act (2009) Cth (the Act) after it was found by the primary court due to the occupier’s lack of consistency in following their policies and the lack of clarity in the terms used in the policies.

Section 499 of the Act requires –

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

The occupier’s visitor induction declaration requires all visitors to “be accompanied at all times when on site”.  No further detail is provided in the documentation as to what “being accompanied at all times”  entails, despite the occupier arguing this requires all visitors to be escorted at all times. The occupier  argued that the union official breached s.499 of the Act as they took it upon themselves to carry out their inspection without an escort.

The Court found that given the occupier’s policy did not explicitly state all visitors were to be accompanied by an escort, but that it simply stated that visitors were to be accompanied, left the term and intent of the policy open to interpretation.

As a result, the Court took into consideration the practice of the occupier and the usual process followed when visitors came to site. Upon examination of the occupier’s practices, it was found that despite the supposed intent of the policy, not all visitors were found to be accompanied by an escort whilst on site. Although the union official was not escorted, he was followed and watched at all times during the visit. The Court found that the union official did not breach s.499 of the Act by not being escorted.

While this occupier was caught out on a technicality, it still highlights the importance of following all safety policies and procedures and conducting regular reviews to ensure they reflect the current practices of your site and/or workplace.

If you require assistance in developing or reviewing your WHS procedures or policies, please reach out to the Workplace Relations and Legal team on (02) 6175 5900.