The Fair Work Act 2009 (Cth) (FW Act) sets out the union right of entry to entitlements and requirements. The right of entry provisions are intended to draw a balance between the right of organisations to represent their members and the right of employers and occupiers to operate without undue inconvenience.
Under the FW Act, an entry permit holder has the right to enter premises for the purpose of investigating a suspected contravention and a person must not refuse or delay entry or hinder or obstruct a union official from exercising the right of entry.
In Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees' Union [2024] FCA 259, the Federal Court of Australia (FCA) dismissed the employer’s appeal against a decision which found it had breached sections 501 and 502 of the FW Act by refusing entry to a union official and preventing him from exercising their right of entry because he sought to enter with a mobile phone.
The employer operates meat processing facilities at Beenleigh in Queensland. The employer had a policy which prohibited image recording devices, including mobile phones from being brought onto its sites. In particular, mobile phones were banned from production areas due to health and safety risks and food hygiene and safety reasons. The policy applied to employees who were expected to leave their mobile phones in their lockers. Permission to bring mobile phones on site by visitors was subject to approval. Signs indicating the prohibition of mobile phones were placed at entry points to sites.
On 17 August 2021, a union official of the Australasian Meat Industry Employees’ Union (AMEIU) sought to enter the employer’s premises, exercising a right of entry as a permit holder under section 484 of the FW Act to hold discussions with employees. Before entering, a manager of the employer advised the AMEIU official that he could not take his mobile phone on site and that he could leave it in his car or in a locked box at security. The AMEIU official maintained that he needed his phone as part of his job. The AMEIU official returned to his car and left the employer’s premises.
The AMEIU lodged an application with the Federal Circuit and Family Court of Australia (FCCA) seeking declarations that the employer had breached the FW Act by refusing a permit holder entry and that its employee hindered and obstructed entry to the premises. It also sought an order for penalties to be imposed for the breaches.
The employer argued that permit holders were required to comply with any reasonable request of the occupier to comply with a health and safety requirement which applied to the premises. It also relied upon the occupiers right to impose conditions on entering premises, and submitted that mobile phones were dangerous items in meat works operations.
The AMEIU argued that the restriction was not reasonable and that the policy was applied inconsistently and to its disadvantage. It submitted that mobile phones were required and used by union officials to access information to provide advice to employees, to record conversations and details with members and to make calendar entries.
At first instance, the FCCA found that the employer’s request not to enter with his mobile phone as not a reasonable request and in doing so, refused entry to the AMEIU official. The FCCA heard evidence that the policy had not been applied consistently and that the true purpose of the policy was to protect its confidentiality and reputation, rather than health and safety. The employer also conceded that there was no general prohibition against mobile phones being brought onto site. The FCCA found that there were no safety concerns with union officials using their mobile phones in a lunchroom where they would hold discussions with employees after following the designated route.
The FCCA held that the employer intentionally hindered and obstructed the AMEIU official from exercising their rights to hold discussions with employees. It found that use of a mobile phone was necessary, and the refusal made it more difficult for the AMEIU official to meet with employees and ensure that their rights were met, and they received information at work.
The FCCA ordered the employer to pay a penalty of $30,000 payable to the AMEIU.
Appeal decision
The employer appealed to the FCA submitted that the judge fell into error. One of the grounds of appeal was that the judge fell into error as not permitting a mobile phone on site could not be hindering or obstructing a right of entry.
The FCA dismissed the appeal. The FCA held that the trial judge was entitled to conclude that the AMEIU official was hindered or obstructed on the evidence.
The FCA was of the view that the right to hold discussions included the ability to bring reference materials for the purpose of discussions and that a mobile phone might be used for discussions as “[i]n the digital age, a convenient repository of documents, and of accessing documents, is a mobile telephone.” The FCA was also satisfied that the breaches occurred when the employer sought to impose an unreasonable qualification on the right of entry.
The FCA also considered that the penalty imposed was reasonable.
Employers should be prepared for union right of entry visits and be informed of their obligations when a right of entry is sought to be exercised the rights that maybe exercised by permit holders.
As demonstrated by this case, significant penalties of up to $18,780 for individuals and $93,900 for corporations may apply for hindering or obstructing permit holders and not refuse or delay entry for a permit holder.
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