What's your name? Full name only

By Jennifer Wyborn, Nathan Moy and Liam Meagher

06 Jul 2017

Hot development in right of entry: if this decision is endorsed by superior courts it will have widespread implications for the legality of entry notices and, potentially, entry permits on a national level. 

Right of entry has been a complex issue for employers, particularly construction sites, since the introduction of the Fair Work Act in 2009 and the subsequent lunchroom changes. Understanding of obligations in this space is clouded by misinformation from third parties that represent that a particular approach is or is not required. In order to get it right, when considering how to behave when entry is requested, it is critical to go back to the legislation and understand what it actually says.

The importance of this back-to basics approach has been highlighted in the recent decision of Ramsay v Menso [2017] FCCA 1416. It may seem obvious but this case reminds us that a legislative requirement that a full name be used requires just that, a full name - middle names and all.

Ms Menso says "no"

Ms Menso was the sole director of the building company Z Group Pty Ltd, which was in charge of a building site in Queensland. 

Two CFMEU officials attended this building site after they received pictures on Facebook that showed potential safety issues. On coming to the site, the CFMEU officials said that they were entering to investigate the suspected safety contraventions. The CFMEU officials attempted to hand Ms Menso an entry notice that they had completed while sitting in their car outside the site. 

Ms Menso refused them entry. She had a long and heated argument with the CFMEU officials in the process. Despite repeated attempts by the CFMEU officials to give or show the entry notice, Ms Menso refused to look at it. 

Ultimately, the CFMEU officials did not enter the site. 

The CFMEU officials subsequently sued Ms Menso for refusing entry and intentionally hindering and obstructing the union officials.  

It's all in the name 

There was no dispute that the CFMEU officials held WHS permits. Nor was there any dispute that they sought to enter the site to investigate suspected safety contraventions. 

During the proceedings it became apparent, however, that the entry notice the CFMEU officials relied on to enter the site that day did not include their middle name. This was despite both union officials giving evidence in the proceedings that they had a middle name. 

The Court had to consider whether this meant that they had no lawful right to enter the site, even if all the other requirements for entry were met. 

The Court held that the entry notice was not valid and that as a consequence the CFMEU officials had no lawful right of entry. 

As a consequence, the case against Ms Menso failed; although not without some observations from the Court about the conduct of Ms Menso, with the Court noting that but for the issue with the middle name, she would have been penalised $18,500 for her poor conduct which included singing non-stop in the face of the union members. 

What it means for you

Occupiers of building sites are obliged to allow union officials onto their sites where the union officials have a reasonable suspicion of safety contraventions, hold the relevant permits, and otherwise comply with the requirement to provide a valid notice.

The Court has, however, confirmed that strict compliance is required, and entry notices will be invalid if the full name is not included. This interpretation of the legislation, is likely to also apply to WHS permits that do not display the permit holder's full name.

If you operate or control a building site, now is the time to check that your employees are familiar with the requirements for right of entry. For safety though, until a superior court endorse this decision, if you think you have a valid ground to deny entry for lack of a full name, it would be best practice to seek legal advice before doing so.

We will have to wait and see whether the CFMEU appeals this decision; for the time being, at least, the law is that middle names matter.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.