Kirby v JKC Australia LNG Pty Ltd (2015)

Facts

The Communications, Electrical and Plumbing Union (CEPU) and three of its union organisers commenced proceedings against JKC Australia LNG Pty Ltd (JKC).

The CEPU alleged that JKC refused, delayed or obstructed their entry onto the Ichthys Onshore Construction Project (the Project), where JKC was a principal contractor, in contravention of the Fair Work Act 2009 (Cth) (FW Act).

The union sought declarations and penalties against JKC, and also sought the following injunctions:

• a right of entry injunction – restraining JKC from refusing the union organisers entry to the Project’s premises after the union organisers provide a notice specifying those premises and a day of entry in accordance with the FW Act;
• a camera injunction – restraining JKC from prohibiting union organisers using a camera to document health and safety concerns at the premises while exercising a right of entry; and
• a hindering injunction – restraining JKC from hindering or delaying the union organisers entry to the premises while exercising a right of entry.

Judgment

The Federal Court granted the right of entry injunction, but refused both the camera and the hindering injunction.

The Court noted that under section 518 of the FW Act, there was a requirement for all entry notices to specify:

(a) the premises proposed to be entered;

(b) the day of entry; and

(c) the union organisation that the entry permit holder is an official of.

The Court considered whether it was sufficient for an entry notice to specify the overall premises to be entered (as the union had done) or whether it must specify the particular part of those premises that the permit holder proposes to visit (as JKC asserted must be done, but wasn’t in this instance).

The Court noted that section 518 requires only that an entry notice specify “the premises” at which entry is proposed, and not the particular part of the premises that the permit holder intends to enter.

The Court rejected JKC’s submission that they were inconvenienced by the union identifying the overall premises and not the particular areas on the premises they intended to visit.

Lessons

This case demonstrates the caution you should exercise if you seek to refuse entry to unions on the grounds that the description of the premises is too broad. In this case, the Court found that the underlying policy of the right of entry scheme may cause some inconvenience to businesses, but that this is overridden by the purpose of the scheme.

The case emphasises that your business needs to:

• have clear processes in place for dealing with rights of entry; and
• ensure that your workers are trained in and understand your business’s rights and obligations in relation to rights of entry.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.