Right of Entry: Refusal Risks 

| July 23, 2025

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 (‘CEPU v Elecnor’), the Court confirmed that, when exercising right of entry to hold discussions, a union permit holder does not need to prove that eligible employees are physically present on a worksite in order to lawfully enter it. 

Background of the Case 

The Fair Work Act 2009 (Cth) (‘FW Act’)¹ allows a permit holder to enter a workplace if they have a genuine purpose of holding discussions with employees: 

• who perform work on the premises 
• whose industrial interests the union is entitled to represent 
• and who wish to participate in the discussions 

On 9 and 10 May 2023, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’) official Mr Murphy attempted to enter the Buronga Camp site to hold discussions with lineworkers supplied by Catalpa Energy.  

Elecnor, the principal contractor, refused Mr Murphy access. The three key aspects to the refusal were that:  

1. there were no eligible employees present on site 
2. the union lacked representational entitlement (i.e. the workers did not fall within union coverage) 
3. the Buronga Camp was used for residential purposes. 

The union brought proceedings alleging that Elecnor’s refusal constituted a contravention of the FW Act.² 

FCA Findings: Why Entry Was Lawful

Actual Presence on Site  

The Court confirmed that a union permit holder does not need to prove that eligible employees are physically present on a worksite in order to lawfully enter it. The permit holder must only show that they had a genuine and relevant purpose which, in this case, was that they believed that eligible employees worked at the premises. As Justice Wigney noted, “How would a permit holder be able to demonstrate … that there are in fact employees on the premises who wish to participate in discussions?”.³ Imposing that requirement on permit holders would make the right of entry unworkable in practice. 

Did the workers fall within Union Coverage? 

Under rule 2.1 of the union’s rules, CEPU coverage includes employees engaged or usually engaged as linesmen or in callings peculiar to the electrical industry. The Court confirmed that this must be assessed in a practical and common-sense way, focusing on the work performed. 

Justice Wigney relied on several key facts: 

• The workers’ contracts described them as “linesmen” or “lineworkers” 

• Their duties included erecting transmission towers, installing insulators and earthing equipment 

• Their roles involved electrical hazards and proximity to high-voltage infrastructure 

• Each held a subclass 482 visa, classified as Electrical Linesworker – 342211 under the Australian and New Zealand Standard Classification of Occupations 

• Catalpa promoted itself as a specialist in electrical transmission work 

The Court accepted that these roles were typical of electrical linework. Arguments that the workers were simply riggers or fell under another union’s coverage were rejected. 

Justice Wigney concluded that the Catalpa workers were eligible to become CEPU members and that the union was entitled to represent their industrial interests. 

Residential Purposes 

Elecnor argued that union officials could not lawfully enter the Buronga Camp as it was used mainly for residential purposes, entry to which is prohibited under the FW Act.⁴ The Court rejected this argument. 

Justice Wigney found that although the camp included residential areas, the union officials never sought to access those parts. They intended to enter the project offices to speak with workers, which was a purpose clearly set out in their entry notice and confirmed in evidence. The Court also noted that the officials were stopped at the front gate, well before reaching any residential area. 

Justice Wigney concluded that the “residential purposes” exclusion did not apply and could not be used to block lawful entry to the work-related parts of a mixed-use site. 

Valid Entry  

In light of the above findings, and having determined that Mr Murphy held a valid entry permit and had issued compliant entry notices, the court determined that Mr Murphy’s entry to hold discussions was lawful and that, in refusing entry, Catalpa had breached the FW Act.⁵  

Key Takeaways

1. Entry rights are based on purpose, not presence 
   Permit holders do not need to prove that relevant employees are on site. They only need to show they had a genuine intention to hold discussions with eligible workers. 

2. Subjective intent is what matters 
   The Court adopted a purpose-based approach, consistent with earlier cases. A mistaken belief does not cancel out a valid entry right. 

3. Refusal carries risk 
   Arguments about who is on site or whether workers want to participate are unlikely to justify refusal. If the purpose is genuine, the entry is likely valid. 

Final Thoughts

This case reinforces that employers must tread carefully when refusing union right of entry. A refusal based on incorrect assumptions about employee presence or union coverage can lead to a breach. 

If your business receives an entry notice and you are unsure how to respond, IRiQ Law can help. We support employers to manage right of entry lawfully and strategically. Contact our team today.

Footnotes

¹ FW Act s 484 

² FW Act s 501 

³ CEPU v Elecnor at 108 

⁴ FW Act s 493 

⁵ FW Act s 501