Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2021] ICQ 15

Samantha Betzien, Allie Flack, Daniel Szabo

Key takeouts

This case is a reminder that union officials with work health and safety (WHS) entry permits are entitled to enter workplaces, including construction sites, where the official holds a reasonable suspicion of a safety issue and the union’s membership rules cover workers at the site (whether or not workers are actually members).

Facts

The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) received a tip-off on its ‘safety hotline’ about safety issues at Enco Precast Pty Ltd (Enco), including the poor condition of plant and equipment and issues with access and egress. 

Under the Work Health and Safety Act 2011 (Qld) (WHS Act), union officials who hold work health and safety entry permits issued by the Industrial Registrar are entitled to enter a workplace if they reasonably suspect a safety contravention has occurred to inquire into the suspected contravention, and must issue a notice of entry when entering.  The union officials may only enter if there are ‘relevant workers’ present, being workers who are, or are eligible to be, members of the union.

Following the tip-off, the CFMMEU officials holding WHS Entry Permits attended Enco’s site to investigate the safety complaint.  Enco barred the CFMMEU officials’ access to the site, arguing the CFMMEU officials did not have a right of entry under the WHS Act because there were no ‘relevant workers’ present, being workers who were members of or eligible for membership of the CFMMEU.  The CFMMEU officials returned the next day and were again refused entry.  On the third day, and after WHS inspectors attended the site, Enco allowed the CFMMEU officials to enter.  On each attempted entry to the site, the CFMMEU officials served Enco with notices of entry.

Enco commenced an application against the CFMMEU and its officials requesting the Industrial Commissioner declare that the notices of entry were invalid, that the CFMMEU officials were not entitled to enter Enco’s site, and that for the purposes of the WHS Act the CFMMEU is not entitled to represent any worker at the Enco site.  Under the WHS Act, the Industrial Commissioner hears disputes about the exercise of an entry right.

The Industrial Commissioner found there was no ‘dispute about’ the reasonable suspicion as Enco had allowed the CFMMEU officials to enter on the third occasion. The CFMMEU may have some coverage, but that there was insufficient evidence to finally determine the issue and therefore Enco had failed to discharge its onus of proving no relevant workers were present on site. 

In case she was wrong, the Industrial Commissioner interpreted the CFMMEU’s coverage rules to find that there were workers that fell within the coverage rules.  For one of the eligibility rules, the Industrial Commissioner found there was insufficient evidence as to whether the relevant work forms the ‘primary function’ of the relevant workers.

Enco appealed the decision to the Industrial Court of Queensland, arguing that the Industrial Commissioner was wrong in finding that there was no dispute about the reasonable suspicion, that the onus for the ‘relevant workers’ issues was on Enco, and that there may have been coverage by the CFMMEU at the Enco site

Decision

The court rejected Enco’s appeal.  The court accepted there was no dispute as to the reasonable suspicion issue.  The court further accepted that Enco bore the onus of proof in claiming the CFMMEU did not have coverage at the Enco site, and that Enco had not discharged that onus.

The court looked at the interpretation of the CFMMEU’s coverage rules in more detail and in particular under two different rules which the CFMMEU claimed justified coverage: the ‘FEDFA Rule’ and the ‘Terrazzo Rule’.  Although the Industrial Commissioner’s decision on the FEDFA Rule turned on the onus issue, the Terrazzo Rule finding did not.  The court accepted the factual findings on the terrazzo rule, meaning the CFMMEU did have coverage and therefore the CFMMEU officials had a right to enter under the WHS Act.

FEDFA Rule

The FEDFA Rule is a part of the CFMMEU’s coverage rules originating in the former Federated Engine Drivers’ and Firemans’ Association.  There were 4 categories of workers that potentially fell within this rule: the bobcat skid-steer operator; the boiler attendants; the gantry crane operators; and the hydraulic pump attendants.  The Industrial Commissioner had found that each of these workers were performing work that fell within the description of the FEDFA rule, being respectively operating the bobcat skid-steer, operating the boiler, operating the gantry crane, and attending the hydraulic pump, but that in each case the Industrial Commissioner could not make a finding as to whether those duties were the workers’ primary functions.  Given the onus was on Enco to prove they were not, this finding meant that Enco had not proven that the CFMMEU did not have coverage.

The court found the Industrial Commissioner had made no error in making factual findings as to the duties performed by each worker, construing the FEDFA rule to ascertain whether the workers fell within the rule, and considering whether she was satisfied that the relevant functions were the primary functions of the workers. 

Terrazzo Rule

The Terrazzo Rule in the CFMMEU’s coverage rules includes workers ‘engaged in the preparation and/or erection of terrazzo or similar compositions’.  The Industrial Commissioner had accepted that the product made by Enco was a similar composition to terrazzo, and therefore workers engaged in preparing the Enco product were captured by the Terrazzo Rule.

Enco argued that the Terrazzo Rule, in the context and history of that rule, did not apply to products made by unskilled workers except those assisting a skilled person, and that the uncontested evidence before the Industrial Commissioner was that Enco’s workers were unskilled and not assisting a skilled labourer.  The court found that the broader rule in which the Terrazzo Rule was contained referred to particular skilled trades, but there were no such references made to ‘those engaged in’ preparing terrazzo and similar products.  All persons, whether tradespeople or otherwise, who prepared the Enco product were captured by the Terrazzo Rule, and therefore the CFMMEU had coverage at the Enco site and had the right to enter under the WHS Act.