Australasian Meat Industry Employees' Union v Teys Australia Beenleigh Pty Ltd - [2022] FedCFamC2G 782

Federal Circuit and Family Court of Australia
(DIVISION 2)
Australasian Meat Industry Employees' Union v Teys Australia Beenleigh Pty Ltd [2022] FedCFamC2G 782

File number(s): BRG 367 of 2021

Judgment of: JUDGE TONKIN

Date of judgment: 19 September 2022

Catchwords: INDUSTRIAL LAW right of entry – Fair Work Act 2009 (Cth) – whether the respondent contravened sections 501 and 502 Fair Work Act 2009 (Cth) – whether the applicant was refused entry to the respondent’s premises – whether the respondent’s request of the permit holder was reasonable – contraventions established – penalties imposed

Legislation: Fair Work Act 2009 (Cth)

Cases cited:
AMIEU v Fair Work Australia (2012) FCAFC 85

Application / Notification by The Australasian Meat Industry Employees Union [2015] FWCFB 5228

Australasian Meat Industry Employees Union [2015] FWCFB 5228

Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85

Application/Notification by BPL Aelaide Pty Ltd [2015] FWC 3905

Darlaston v Parker [2010] 189 FCR 1

Lane v Arrowcrest Group Pty Limited(1990) 27 FCR 427

Division: Division 2 General Federal Law

Number of paragraphs: 142

Date of last submission/s: 15 August 2022

Date of hearing: 2 April 2022 & 27 June 2022

Place: Brisbane

Counsel for the Applicant: Mr O’Brien

Solicitor for the Applicant: Australasian Meat Industry Employee’s Union

Counsel for the Respondent: Mr Millar

Solicitor for the Respondent: Law on Lydiard Lawyers
ORDERS

BRG 367 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Applicant

AND:
TEYS AUSTRALIA BEENLEIGH PTY LTD

Respondent

order made by:

JUDGE TONKIN

DATE OF ORDER:

19 September 2022

DECLARATION:
1.It is declared that:
(a)on 17 August 2021 the respondent contravened section 501 of the Fair Work Act 2009 (Cth); and
(b)on 17 August 2021 the respondent contravened section 502 of the Fair Work Act 2009 (Cth).

THE COURT ORDERS:
2.Within 7 days the respondent file written submissions as to appropriate penalties to be imposed.
3.Within a further 7 days the applicant file written submissions in reply.
4.Judgment with respect to penalty is reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN

By application filed on 19 August 2021 the applicant Australasian Meat Industry Employees' Union (“the Union”) alleges that the respondent Teys Australia Beenleigh Pty Ltd (“Teys”) contravened section 501 of the Fair Work Act 2009 (Cth) (“FW Act”) on 17 August 2021 in refusing a permit holder Mr Journeaux entry to the respondents meat processing premises pursuant to section 484 of the FW Act and further alleges that on 17 August 2021 Mr Allan Platter an employee of the respondent contravened section 502 of the FW Act in hindering and obstructing the permit holder’s entry to those premises. The applicant seeks declarations and an order for penalties to be imposed on the respondent. The matter was heard on 7 April 2022, 25 May 2022 and briefly on 27 June 2022. Judgment was reserved.
Documents relied on
The applicant relied on affidavits filed by Matthew Journeaux on 19 August 2021 and Mr Cottrell – Dormer on y data outline of submissions filed 15 March 2021, submissions filed on 1 July 2022 and submissions in reply filed
The respondent relied on affidavits filed by Adam Matthews filed 13 January 2022 and Allan Platten filed on 13 January 2022, 25 January 2022, outline of submissions filed 23 March 2021 and further submissions filed 8 July 2022.
Background
Teys Australia Pty Ltd is the parent company of the respondent and operates meat processing facilities at 14 sites across Australia employing approximately 4,150 employees. The respondent Teys Australia Beenleigh Pty Ltd (“Teys”) operates a meat processing facility at Beenleigh Queensland.
The applicant AMIEU is a trade union (“union”) which represents employees in the meat industry. The union is a registered industrial organisation under the FW Act and is entitled to represent the interests of its members who are employed by the respondent.
The FW Act authorises officials of industrial organisations to enter business premises for the purpose of holding discussions with one or more employees or TCF award workers who perform work on the premises and whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in discussions.[1]
[1] Section 484 of FW Act
Matthew Journeaux the State Secretary of the Union (AMIEU) is the holder of a permit issued under section 512 of the FW Act. As an official of the union and permit holder he had a right of entry under the FW Act.[2] There is no dispute that the applicant had given the respondent the required statutory notice regarding the applicant’s intention to exercise a right of entry.
[2] Section 512 of FW Act
Section 480 of the FW Act establishes a framework for officials of organisations to enter premises that balances:
(a)the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the FW Act and FW Instruments and OH&S laws of States or Territories; and
(b)the right of employees and TCF award workers to receive at work, information and representation from officials of organisations; and
(c)the right of occupiers of premises and employers to go about their business without undue inconvenience.”
The right of entry provisions under the FW Act are designated as civil remedy provisions pursuant to section 539 of the FW Act. If it is established that a person has breached a permit holder’s right of entry that breach will attract a penalty.
On 17 August 2021 Mr Journeaux attended upon the premises of the respondent, for the purpose of entering the premises to hold discussions with employees.
Mr Journeaux was met by Mr Al Platten, a management employee of the respondent. Mr Platten informed Mr Journeaux that he (Mr Journeaux) was not permitted to bring his mobile phone onto the respondent’s premises, and that he could not enter the premises while in possession of his mobile phone.
After some discussion Mr Journeaux did not enter the premises and returned to his vehicle and left the respondent’s site.
The applicant alleges that the respondent contravened sections 501 and 502 of the FW Act. The respondent denies any breach of the FW Act.
Issues
Whether the conduct of the respondent including its employee Mr Platten amounted to:
(a)Refusing or unreasonably delaying entry to Mr Journeaux in contravention of section 501 of the FW Act; or
(b)Intentionally hindering or obstructing Mr Journeaux’s entry to the premises in contravention of section 502 of the FW Act.
Applicant’s evidence
Matthew Journeaux has been a union official with the AMIEU since 2002 and on 17 August 2021 held the position of State Secretary of the Union. Prior to his employment with the AMIEU he worked as a boner in meat processing establishments and a butcher in retail establishments. Throughout his employment as a union official he has been the holder of a right of entry permit under the FW Act and from 25 February 2019 until 17 August 2021 (and continuing) held a right of entry permit RE2019/108.
A number of Teys employees who worked on the Teys Beenleigh site (or premises) are members of the AMIEU. Union officials routinely exercise a right of entry on meat processing establishments about a range of matters including holding discussions with employees eligible to join the union, encouraging employees to become members, discussing with union members issues affecting their employment, entitlements and workplace rights. According to Mr Journeaux employees at times raise issues about whether they have been paid correctly or other work related grievances about which they seek his advice. In addition enquiries are sometimes made by employees about health and safety issues. Mr Journeaux has exercised his right of entry during his employment with the AMIEU on more than one hundred occasions.
Notice was given on 16 August 2021 to the respondent that Mr Journeaux intended to exercise a right of entry in accordance with section 484 of the FW Act. The entry notice was emailed to the respondent’s email address in accordance with the FW Act. No issue was taken by the respondent with any technical requirements with respect to the entry notice given by the permit holder.
17 August 2021
Mr Journeaux arrived at the Teys Beenleigh premises at 8 a.m. on 17 August 2021 and went to the security gate. On arrival he confirmed with the security guard that he had attended the site before and believed he completed the “site induction” training but could not recall when. The security guard checked his details and told him he had “completed a ‘visitor’s induction’ back in 2019 but had not completed the induction for ‘contractors’” and handed him paperwork to read. Mr Journeaux signed an acknowledgement that he had read the paperwork. He provided his Q Fever card to the security guard on request and the guard then handed him a “contractor’s certificate” and informed him he would need to produce that document on future visits. The security guard called “Al” and Allan Platten arrived at 8.15 a.m.
Mr Journeaux and Mr Platten exchanged greetings and Mr Journeaux was asked questions by Mr Platten who carried a clipboard with a document attached (AP 5). Mr Platten asked to see Mr Journeaux’s entry permit which was provided. As the pair were known to each other no other identification was required by Mr Platten. The following exchange took place:
Mr Platten       “What are we going to do about your mobile phone?
Mr Journeaux   “What do you mean?
Mr Platten told Mr Journeaux he could not take his mobile phone on site. He said “you can either leave it in your car or there is a locked box in security where you can have a key to store it.”
Mr Journeaux   “I cannot do that I am secretary of the union I need to be able to be contacted….All these other contractors that are going in, do they have to give up their mobile phone?”
Mr Platten       “Matt you can’t take your mobile phone on site”
Mr Journeaux   “Well Al I need it, it’s part of my job
Mr Platten       “Well we can’t help you today.”
Mr Journeaux   “What do you mean by you can’t help me.
Mr Platten       “You can’t come on site with your phone it either has to be left in your car or in a locked box at security
Mr Journeaux   “So you’re denying my right of entry”
Mr Platten       “No you’re welcome to come on site but your mobile phone isn’t.
Mr Journeaux   “You’re really wasting my time this morning Al”
Mr Platten       “Well I am not too happy having to stand up here and discuss this with you either.
Mr Journeaux   “No but you didn’t have to drive from Woodford did you?
Mr Journeaux returned to his car and left the premises. His version of events largely accords with what Mr Platten said occurred on that day.
Mr Journeaux was aware that the respondent had adopted a policy that AMIEU permit holders were not permitted to bring a mobile phone onto the Teys Beenleigh site. In the past when on site he had regularly made use of his mobile phone when holding discussions with individual workers and used his phone to access information available on the internet, to record members conversations or details and make calendar entries. On occasion he had been required to phone the AMIEU industrial officer to give an employee immediate advice. He gave evidence that it was impracticable to be without a mobile phone given that as a union official he at times received a large volume of phone calls from union members during the course of their employment on any given day. Other permit holders made similar use of their mobile phones when on site at meat processing establishments.
Mr Journeaux was aware that mobile phones were prohibited from production areas due to health and safety risks particularly where employees work with knives in close proximity to each other and may be distracted if access to a mobile phone is allowed. He accepted there were a number of trip and slip hazards within the production areas and that food hygiene and safety in the production areas were important considerations. He was aware that all meat processing establishments ban loose items including mobile phones from production areas.
He said from the entrance to the Teys Beenleigh premises along the route to the lunch room (meal areas) where discussions with employees take place there is no immediate access to any production areas. He agreed that union officials have no right to enter any production areas. On occasion with the express permission of management he has been permitted to enter a production area for the express purpose of viewing or observing work being performed where an employee has raised a specific workplace concern. In those circumstances he removed all loose items including his mobile phone before entering the production area.
Other than Teys Beenleigh no meat processing establishment has ever sought to prevent him bringing his mobile phone onto the site when he entered the premises for the purpose of discussing matters with employees. As secretary of the AMIEU other union officials who are permit holders report back to the Secretary any issues they encounter during visits to meat processing establishments. No reports had been made to him from other union officials that they have been prevented from bringing a mobile phone onto the site when entering the premises for the purpose of discussing matters with employees.
At all other premises when undertaking duties in accordance with his Fair Work entry permit for the purpose of holding discussions with employees he has been permitted by management or the employer to bring his mobile phone with him. He was prepared on behalf of the AMIEU to give the respondent an undertaking that AMIEU permit holders attending Teys Beenleigh would not use their mobile phones to take footage of any kind nor use their mobile phones to take photographs other than photographs of documents (pay slips, letters etc) that individual employees provide to the permit holder for the purpose of obtaining advice.
When cross examined Mr Journeaux agreed with Counsel for the respondent that Mr Platten had given him the option of leaving his mobile phone in his car or in the locked box at security. He was asked whether there was anything stopping him from gaining entry to the site once he complied with the request. He said he was not sure. He agreed Mr Platten told him he was welcome on site but his mobile phone was not.
Counsel suggested he didn’t need to have his mobile phone with him to have discussions with employees. He said it depended on the content of the discussions. He agreed he could “make a note” but said some questions asked of him required an immediate response.[3] In some circumstances he would be required to check the terms of an Enterprise Agreement and needed to access those documents stored in electronic form on his mobile phone or accessed via the internet. As Secretary of the AMIEU he often visited multiple sites and it was difficult to bring along multiple hard copies of legislation which may or may not refer back to an Award and other documents. He used his mobile phone to make entries including employees’ details, the nature of a member’s enquiry and organising further appointment times as he had access to an electronic diary on his mobile phone. In addition the device was useful as there were limited opportunities to discuss matters with employees due to their employment commitments. In some cases he was required to deal with an urgent health and safety issue that required an immediate response “for example where an ammonia leak has occurred on another site and workers have been instructed to continue to work in an unsafe environment.” In those cases there may be a significant delay in responding to an employee if he had no access to his mobile phone given he sometimes spent long hours on a particular site. On one occasion he spent 13 and a half hours on site. He argued that it was impractical to attend the site without his mobile phone. He had no issue with the fact that loose items including mobile phones were banned from production areas because some parts of those areas presented hazards and may be a safety risk.
[3] Transcript 7 April 2022 p.7 ln 20 - 26
He was aware that employees were permitted to use their mobile phones in the lunch room (or meal area). He accepted that some employees had been through a Teys induction program. He had also been through the Teys induction program and had OH&S training and “did an induction for a contractor’s entry.”
He agreed that Teys could take disciplinary action against an employee in the event of misuse of a mobile phone but accepted he would not be subject to Teys internal disciplinary processes. Though he was not subject to the control and direction of the employer Mr Journeaux said he had offered to provide the respondent with an undertaking that union officials not use their mobile phones to take video footage of any kind other than photographs of documents such as pay slips, letters etc that individual employees provide to the union for the purpose of obtaining the permit holder’s advice.[4] He agreed he wanted liberty to use his mobile phone in the course of his role as a union official and said he would restrict that use “to the lunchroom, not onsite.” He denied he did not need his mobile phone. He said an employee may not have facilities to be able to copy a document and send it by email and matters may be urgent requiring an immediate response.
[4] Transcript 7 April 2022 p. 12
When re-examined he said the lunchroom at Teys was no different to any other workplace lunchroom being a large space with cooking facilities, pie warming facilities, a kitchen sink, washing facilities and was no different to a lunchroom in a manufacturing establishment. On one occasion he was “locked out of the lunchroom and the respondent made him use a small training room as a right of entry point to hold discussions with members and 300 members tried to attend that area at one point. He said he took a photo of the congestion in the area.”[5]
[5] Transcript 7 April 2022 p.14 ln 5 - 10
He had visited the Teys site more than 100 times and actually organised the site for 12 years depending on what occurred for example if there were Enterprise Bargaining Agreement negotiations taking place he may be on site every day for a few weeks with members and then perhaps every two weeks or monthly.
James Cottrell - Dormer
James Cottrell – Dormer is the Acting Assistant Branch Secretary of the Queensland Branch of the AMIEU. From November 2011 he was employed by AMIEU as a Supermarkets Field Officer, then Branch Organiser. Between 2011 and 2017 he was responsible for organising and representing AMIEU members in supermarket meat departments and retail butcher shops. He has attended workplaces and held discussions with employees.
From May 2017 he had been responsible for recruiting, organising and representing establishments at a number of abattoirs operated by the respondent at Beenleigh, Cannon Hill, a meat wholesaler at Ormeau and Burleigh. He holds a right of entry permit RE2020/952 and a Work Health and Safety permit issued on 6 August 2019 under the WHS Act. His duties include attending and entering premises of meat processing and industry establishments to hold discussions with employees involving collective issues affecting members or the site and discussing individual members’ issues. He was the permit holder who would normally attend the respondent’s premises at Teys Beenleigh however as he lived in NSW in a Covid19 Hotspot this prevented him from travelling. In August 2021 he was not permitted to enter Queensland due to border restrictions.

Between 8 February 2019 and 24 February 2020 he entered the Teys Beenleigh premises on numerous occasions for the purpose of holding discussions with members. When visiting Teys Beenleigh his usual practice was to park his car and go to the security gate and notify the security guard of his attendance. He completed paperwork and the security guard would contact someone from Human Resources to escort him to the security gate. The manager or other HR representative would then escort him to the main meals area to meet members. On occasion he has been escorted to a smaller lunchroom to hold discussions with members. He agreed he had no right to enter the production areas.
On each occasion he attended he observed many employees who were members had their mobile phones with them in the lunchroom during discussions. He has been permitted to bring his mobile phone with him and has used it to refer to industrial instruments such as EBA’s, to enter details of members into his phone, to update his calendar, share emails and documents with members, respond to any urgent inquiry and receive phone calls from other members in other workplaces that require an immediate response. Prior to Covid19 he would take documents with him but due to health concerns he changed that practice and would only take his mobile phone with him. He has never used his phone while on Teys premises to take a photo or video however on one occasion when exercising a right of entry under WHS legislation he took a photo of business records provided to him at reception.
Prior to 25 June 2020 he had never been requested by the respondent to surrender his mobile phone when entering the respondent’s premise nor requested to leave his phone outside. On all occasions he had entered the site with his mobile phone without any objection from management representatives. He has used his mobile phone openly in the lunchroom and observed that a Human Resources employee is almost always been present in the lunchroom when he has attended and the respondent is aware of this.
He said no meat industry establishment has ever sought to prevent him bringing his mobile phone onto the site when entering the premises for the purpose of discussing matters with employees nor was he aware of any other meat industry employer in Queensland (other than Teys Beenleigh) who has sought to prevent a permit holder from bringing his mobile phone onto the site when entering the premises for the purpose of discussing matters with employees. He agreed that mobile phones were prohibited from production areas for health and safety reasons and that the devices present as a hazard in that environment and are excluded for that purpose. He had no issue with that and accepted that practice was appropriate.
On 3 April 2020 he attempted to exercise a right of entry to Teys Beenleigh as the permit holder and the respondent’s management staff “refused him entry because of coronavirus risks claiming the risk related to Mr Cottrell – Dormer having travelled overseas in January 2020.” An application was made by AMIEU to the Fair Work Commission which resulted in arbitration. The Commission determined that the applicant’s offer to provide an undertaking was acceptable.[6]
[6] Affidavit of James Cottrell – Dormer filed 17 December 2021 [31]
He was prepared on behalf of the AMIEU to give the respondent an undertaking that when on the respondent’s premises he would not use his mobile phone (or any other device capable of recording images) to take photographs or record any image or video and would undertake when on the respondent’s premises not to take a mobile phone (or any other device capable of recording images) into any production areas provided that the respondent made available a convenient safe receptacle in which the device could be securely stored.
Mr Cottrell – Dormer in his affidavit filed on 4 February 2022 disputed that the respondent’s Mobile Phone Policy applied to all visitors. He said from mid - 2017 and prior to 2020 no person from Teys Beenleigh ever requested Mr Cottrell – Dormer to surrender his mobile phone nor requested that he leave his phone outside the plant nor was he denied entry on the basis that he would not surrender his mobile phone.
When cross examined Mr Cottrell – Dormer agreed he was not present on 17 August 2021 when Mr Journeaux attended the respondent’s premises. He had attempted to enter the Teys site on a number of occasions in June 2020, September 2020 and February 2021 and agreed that on those occasions he had been asked “to leave my phone at the gate or hand over my phone sometimes was the language I think.” Counsel suggested that at that point he decided not to seek entry. He disagreed. He said he had been willing to abide by any reasonable occupational health and safety requirement but was denied entry.[7] On one occasion he had the following exchange with Daniel Cornellison:
Daniel: “You’re not going to enter the site with your phone”
James: “Well I’m not going to give you my phone but I expect to enter the site. Are you going to deny me that entry?”
Daniel: “I’ll never deny you entry”
James: “Well let’s go then let’s enter the site”
Mr Cottrell – Dormer said Daniel would not allow him to enter the site. Other than forcing entry he said “I don’t see how I could have got in. So I was denied entry.”
[7] Transcript 7 April 2022 p.20
Mr Cottrell – Dormer was shown an affidavit filed by Allan Platten on 12 May 2020 in earlier proceedings regarding the events of 26 June 2020 and he agreed that on that occasion he met Mr Platten at the front gate. He showed Mr Platten his right of entry permit. He agreed he was told about conditions of entry including a requirement to wear PPE gear which was provided by Mr Platten. It was suggested that Mr Platten told him he would need to leave his mobile phone in his car and Mr Cottrell – Dormer objected to this and said he needed his phone for work. He disagreed and said he was told to leave his phone at the gate or maybe in the car. He could not recall the details otherwise. He said he did not think this request was reasonable and asked specifically what the workplace health and safety reason was that prevented him bringing his mobile phone on site. He agreed he did not request to see the general manager and left the site.
There were two further visits on 16 September 2020 and 23 February 2021. He agreed Mr Platten asked him where he had driven from given concerns about border restrictions and the impact of Covid19. He completed a Covid19 declaration required of all visitors. He was told he would not be permitted to enter with his mobile phone and could leave his phone in his car or a box in security. He denied he was not refused entry by Mr Platten and said he believed the restriction regarding the mobile phone was unreasonable. The condition imposed by Mr Platten that he not enter the site with his mobile phone resulted in him not being able to do his job while on the premises. He said “I took that as a refusal.” He observed it was common for people to have their mobile phones with them in the Teys lunchroom and some of those people were not Teys employees but third party labour hire employees and representatives from superannuation funds. Some of his members phoned him to ask why superannuation representatives were allowed onsite with all their equipment when union officials were not. He had previously been permitted to use his mobile phone in the lunchroom for years and observed “David” the superannuation representative use his computer and mobile phone in the lunchroom on numerous occasions. That was prior to 24 February 2020.
He was shown an email from Sean Crabb to David Ashton dated 1 June 2021 advising Mr Ashton he was required to follow the visitor policy including the mobile phone policy. He said he had never received any email direction from Sean Crabb in those terms. Mr Ashton told him there was an incident with Teys about his mobile phone which he had with him on site between 5 and 8 October 2021. Mr Cottrell – Dormer asked him how he managed to do that however Mr Ashton did not elaborate.
He had been through the Teys Induction Program but was unclear whether that was the program for visitors or contractors. He denied he had been told about the mobile phone policy at that time. He did the program years ago and has done it several times since and it hasn’t changed.
He is aware there is signage about photographs and image recording devices. There was a sign at the gate that makes it clear that no image recording equipment including mobile phones are allowed in the production areas. No other mobile phone policy has ever been enforced previously. He agreed Teys could not take disciplinary action against him but could take action against any employee that breached Teys policies.
He discussed the use he made of his mobile phone in detail and was cross examined at length on that issue. He said he avoided bringing paper onto the site during Covid19 and had adapted to managing his business duties and responsibilities digitally through the use of his mobile phone. It was impractical for him to rely on paper to do his job. He was asked about the undertaking he was prepared to give that he would not use his mobile phone to take photographs while on the premises or record any image or video but confirmed he needed to use his mobile phone in his role as union official providing information to employees.
Respondent’s evidence
Allan Platten
Allan Platten is employed by Teys Australia Beenleigh Pty Ltd, as a Shift Manager, at its meat processing facility situated at Logan Road, Beenleigh, Queensland. He supervises operations on the day shift at the site. His role involves the supervision of approximately 450 workers and he has held that position for about 22 years and has been otherwise employed at the Teys site for 42 years.
He is aware that Teys has a policy in place preventing image recording devices, including mobile telephones, being brought onto Teys sites. The current policy was introduced in or about December 2015 as the “Photography, Image Recording & Mobile Device Use Policy” (“the policy”). The policy “forms part of the induction process for new employees, who sign off on the policy in acknowledgement” and is well known to all employees. He said it was “applied to all persons entering the site.” Some senior employees (himself included) who need to be contactable for operational reasons have company issued mobile phones but generally “all employees are expected to leave their mobile phones in their lockers.” Visitors either leave their phone in their car, or give it to the person hosting their visit. For some contractors there may be a legitimate need to bring their mobile phone with them on site to take photographs of machinery or parts for maintenance purposes but such cases are subject to approval by the General Manager on site.
Signs are placed on site at the entrance to the production areas reminding employees and visitors that mobile phones are not permitted in production areas. A similar sign is also in place at the front gate.
In relation to the visit by Matthew Journeaux on 17 August 2021 he took no issue with Mr Journeaux’s version of events. When contacted by the security guard he told him he would come to the gate and proposed to take Mr Journeaux onto the site to take him to the lunch room for his proposed discussions. Ahead of this visit to the site the respondent had an area set up for the purposes of his discussions with employees.
When he arrived at the gate, Mr Journeaux completed the COVID-19 declaration currently “required of all visitors.” Mr Platten had a checklist of the matters that needed to be completed before Mr Journeaux could enter the site. He told Mr Journeaux that he would need to leave his mobile phone in his car or in the locked box at the security gate. He said “Mr Journeaux declined my request.” In the course of discussion Mr Journeaux said he had a legal right of entry. Mr Platten said he told him “'I can't let you come on with your mobile phone” and “You are welcome on site, but your mobile phone is not.” Mr Platten denied that he refused Mr Journeaux entry to the site, but made it clear that he could not bring his mobile phone with him. He said following this discussion Mr Journeaux did not exercise his right of entry and left the site. He would have been free to enter provided he did not bring his mobile phone with him.
Regarding Mr James Cottrell-Dormer’s claim that he had “not been permitted to enter the Respondent's Beenleigh premises to hold discussions with employees since 24 February 2020” he said that incorrect. On several occasions after that date Mr Cottrell-Dormer had attended the site to exercise his right of entry but has decided against doing so after being told he could not bring his mobile phone with him. He was personally involved in discussions with Mr Cottrell Dormer on proposed entries to the site on 26 June 2020, 16 September 2020 and 23 February 2021.On each occasion he left the site without exercising his right of entry after it was explained to him that he could not bring his mobile phone with him. He denied that Mr Cottrell-Dormer had been refused access to the site on any occasion noting that the applicant had commenced proceedings previously with respect to this issue and had discontinued those proceedings.
Mr Platten has worked for Teys for over 40 years and had never had a problem taking his mobile phone on site, it was a company issued phone. He said he had known Mr Journeaux for a long time. He agreed the procedure at the site was to meet the union official at the security gate and escort them to the door to enter the building and then escort them to the lunch room. He denied there was no safety risk in someone having their mobile phone at this point. He said there were trip hazards and a person may be distracted. He was unsure if there was any risk if the person had their mobile in their pocket, he thought a mobile phone might vibrate in the person’s pocket. He was not the author of the policy.[8]
[8] Photography, Image Recording & Mobile Device Use Policy
He accepted Mr Journeaux had visited the site about 100 times and said he had never escorted him to the lunch room before although he had assumed that role in part over the last two years and was designated the host of union officials. He was unsure whether there had been a union visit since that time. He had never escorted Mr Cottrell – Dormer from the security gate to the lunch room someone from HR would have performed that task. He was the shift manager and agreed that if there was a union visit he would be made aware of it. The union officials have visited but have never come onto the plant. He agreed that when a union official visits the site they sit in the lunch room and don’t leave that area and a person from HR remains in the lunch room while the union official is there. He was unaware if a union official had ever left the lunch room without the HR persons knowledge he is usually told when the official leaves the premises.
In his affidavit he stated “For many years, the respondent has had a policy in place preventing image recording devices, including mobile phones, being brought onto the respondent’s sites.” He agreed there was no mention of “safety” in that statement. He was asked about photos (AP2) and confirmed that the sign on the front door said “No image recording equipment, including mobile phones, are allowed in the production areas.” Counsel suggested the policy was confined to mobile phones in the production areas. He disagreed. He agreed that the sign said nothing about having mobile phones not being allowed on site and agreed that employees had their mobile phones with them in the lunch room and were permitted to use their phones there.
He was asked about the statement “Visitors either leave their phone in the car –or give it to the person hosting their visit.” He agreed that truck drivers took their mobile phones with them and denied they were “visitors.” He said they were like everyday employees and “have set areas to go to and must remain in the vehicle.” He agreed they go into production areas but said “not inside they remain outside.” He agreed that they go into the storage and packing area but denied that was a “production area.”
He had no involvement when David Ashton on 5 to 8 October 2021 visited on behalf of the AMIST super fund. He accepted that if Mr Ashton had his phone with him in the lunch room during those dates he could not have been asked to hand his phone over before entering the site.
When Mr Journeaux attempted to enter the site on 17 August 2021 he went through a checklist with him (AP5). He agreed that the checklist was only used for union officials and no checklist was used for anyone else. He had not seen a copy of the checklist before 7 July 2021 and accepted it was created on that date.
When contractors come onto site to perform work it is up to the general manager whether they are allowed to keep their mobile phones with them. They have a lot of different contractors that come onto the site and they are classed as “employees” so they are bound by the respondent’s disciplinary requirements. He agreed that Mr Journeaux had completed the contractor’s induction training which is the same process completed by contractors that come on site. Mr Platten had never received any training (himself) about the use of mobile phones on site and agreed that the “load out” area was classed as a production area. He agreed that as such truck drivers were permitted to go into production areas.
Mr Platten agreed a union official was escorted to the lunch room and could not get from the lunch room to the production area without going through the sterilising area which requires gum boots. He agreed that a union official had never entered the production area without authorisation. He claimed he didn’t know if on 17 August 2021 Mr Journeaux would try and leave the lunch room and enter the production areas. He agreed with the proposition that there were no serious health and safety concerns regarding a union official sitting in the lunch room with a mobile phone.
Adam Matthews
Adam Matthews is employed by Teys and has held the position of Group Training Manager for about three years. He works from Teys head office in Eight Mile Plains. Overall he has worked in various positions for Teys for about 17 years including in Human Resources and training capacities. He holds an Advanced Diploma of Management (Human Resources) from Churchill Education. He is responsible for developing and implementing policies for Teys.
Mr Matthews said that Teys has had policies in place over an extended period restricting the ability of employees or visitors to bring image recording devices on site. Experience has shown that photographs and videos from meat production facilities can be published unlawfully, particularly via social media, to cause distress and damage to those in the meat industry. Teys is anxious to protect the privacy of its employees and not allow photographs of its employees to be taken or used without consent. There are also significant factors in leading to restrictions on image recording devices on site. Almost all mobile phones incorporate a digital camera, the restrictions on image recording devices necessarily extends to include mobile telephones. Teys is concerned about its privacy and the potential for harm with respect to issues such as animal welfare and intellectual property.
He said “in addition the use of mobile telephones on site represents a significant safety risk, given the dangers posed by persons who are distracted by the use of mobile phones being potentially in proximity to dangerous equipment.”
The current policy on mobile telephones “Photography, Image Recording and Mobile Telephone Use' (the Mobile Phone Policy)” had been in place since December 2015. He was involved in the preparation of the policy which replaced a similar policy in place in January 2012. The policy includes a definition of “image recording equipment” which expressly extends to include mobile phones. The policy is made known to all employees on site through being posted on notice boards and administered during induction processes and training.

Teys employees “are generally expected to leave their mobile phones in their lockers.” Although mobile phone use is generally permitted within lunch room facilities, employees are strictly prohibited from mobile phone use in production areas. The only exceptions are for supervisory or managerial employees who need to be contactable for operational reasons. Contractors who need to have a mobile phone or camera device with them for example if they need to photograph equipment on-site need to seek approval from the relevant General Manager. The policy for visitors to Teys sites is that visitors are not permitted to have any form of image recording equipment, including mobile phones, in their possession beyond the initial entry point.
The Mobile Phone Policy in its operation to visitors to the site is also reflected by the Teys Policy on “Visitor Site Conditions.”[9] That policy has been in place since 14 April 2013 (and was last amended on 21 January 2018) and includes a series of express conditions for visitors to Teys sites. Included in that list of conditions, at point 12, is a prohibition on bringing any image recording equipment, including mobile phones, onto the site. That policy is “uniformly applied to all visitors to Teys sites” with the exception of delivery drivers who would not be expected to leave the loading bay area.
[9] 'SMS 6.01.2 Visitor Site Conditions - Release Indemnity Form'.(para 12)
The onset of the COVID-19 pandemic necessitated a review of all policies and procedures to ensure all possible steps were taken to protect employee health and safety, the integrity of product and the continuation of operation in what is an essential business. As a consequence of that review, all existing policies were strictly enforced across all sites around the country, particularly concerning conditions of entry onto the sites. Policies pertaining to mobile phones and other image recording devices are enforced.
He referred to correspondence in his possession between Teys and the meat industry superannuation fund, AMIST Super (Australian Meat Industry Superannuation Trust), concerning requirements for site visits which include a requirement to leave any mobile phone in the visitor's car or at security in locked storage. The email advice to AMIST was sent on 1 June 2021 at 12.11 pm. When he became aware that an AMIST representative had been in possession of a mobile phone when visiting the site, a letter was sent on 25 October 2021 seeking an explanation and temporarily suspension of AMIST's permission to enter any Teys facility. AMIST replied by letter dated 26 October 2021, providing an explanation and apologising for the incident.
He was not involved in applying the Mobile Phone Policy to the proposed visit by Mr Journeaux on 17 August 2021 but under that policy Mr Journeaux would not have been permitted to enter the site with his mobile phone.
He had viewed two YouTube videos posted on the internet in October 2021 by Mr James Cottrell-Dormer, on behalf of the applicant. The videos are presented as briefings for the applicant's members concerning the recent enterprise bargaining negotiations at the Teys Beenleigh site. The first video “Teys EBA update 13 October 2021” is publicly available on YouTube. In the first 30 seconds Mr Cottrell – Dormer states:
G'day members. I just wanted to provide a brief video update, I thought as a way of communicating with you. As you know, Teys has denied the union access to the site and put unreasonable, and in our view unlawful, restrictions on our entry. So, and while that matter is before the court, we are going to have trouble communicating with you.
The second video posted to You Tube titled “Teys update 28 October 2021” is publicly available and in the first 13 seconds Mr Cottrell – Dormer states:
As you know, we're still locked out of the Beenleigh site. The company has been denying our entry. They'll conflate the issue and say 'it's only the union official's mobile phone'. There is limited truth in the way that they convey their messaging to you. The fact is they're trying to put unreasonable demands on the union and our conduct when we're on site and making it really impossible for us to do our jobs while we're there with you and limiting our access to you and limiting our ability to advise you while we're there.
Those things have got to stop and the only way we're going to stop them is unfortunately, through a legal process. We have an upcoming Federal Court injunction that we are seeking and I very much hope that that matter settles soon so that I can come back out and see you in my capacity as your union official, as we should be able to do. And we need to try and stop these right of entry issues that Teys keeps throwing in front of us, once and for all. And the only way we're going to do that is to get a legal decision.
Mr Matthews argued that Teys did not deny the applicant entry to its site and said the You Tube videos were intended to mislead the viewers. Neither Mr Cottrell Dormer, nor Mr Journeaux, nor any other official of the applicant were denied a right of entry but rather Teys applied its Mobile Phone Policy to prevent unauthorised mobile telephones being brought onto the site, without refusing entry to any union official.
He was aware that Mr Cottrell-Dormer, in the course of recent enterprise bargaining negotiations, claimed Teys had restricted the union access to the Beenleigh site. In an email exchange between Mr Cottrell-Dormer and Teys bargaining representative, David Bates of Workplace Engagement Solutions, on 24 September 2021, in which Mr Cottrell-Dormer claimed Teys had restricted access to the site Mr Bates replied on behalf of Teys that “the restriction relates only to bringing mobile phones into the plant - the officials themselves continue to be more than welcome to enter the plant and speak to employees.”
When cross examined Mr Matthews said he had worked for Teys for 18 years primarily in HR and training and formerly held an OH&S licence but that is no longer required. He was aware that an employee Daniel Cornellison is the site’s workplace health and safety officer at Teys Beenleigh. He was involved in drafting the Mobile Phone policy (Exhibit A1) and enforcing compliance. He agreed the object of the policy was to protect the intellectual property, confidentiality and accessibility and competitive advantage to documents, machinery and methods of operation within the company and to ensure privacy which requires consent for recording personal images.[10] He agreed there was nothing in the policy that made any reference to OH&S issues and OH&S was not “stipulated in the policy.” He agreed that the policy had “nothing to do with occupational health and safety” and said “not this policy.”[11]
[10] Transcript 7 April 2022 p.57
[11] Transcript 7 April 2022 p.58
Regarding procedure on arrival a union official first presents at the security gate and then someone from Teys management meets the union official and escort’s them to the lunch room and the union official sits in the lunch room and at the end of the visit someone from Teys management escorts the union official back to the security gate. He claimed that there could be a security risk if a person has with them a mobile phone when the union official is being escorted from the security gate to the lunch room. He accepted there had never been an incident such as a person tripping over during that journey nor any other incident involving a mobile phone.
He accepted there were people walking around the premises with a mobile phone in their pocket and said this was a potential security risk but no incident had occurred. He claimed there was a “serious safety risk if a visitor had possession of a mobile phone on site.” He agreed that contractors carried their mobile phones on site with them and that a lorry driver was likely to be at risk of distraction rather than a pedestrian. He said their phones are not removed “because they’re only expected to be in the loading bay areas.[12] They drive their lorries through the site and have possession of their mobile phones.” He said that did concern him. He was asked when the respondent intended to remove mobile phones from lorry drivers. He said “that’s a safety requirement and that’s not part of my requirements.”[13] Counsel suggested that he was the person who gave advice to the respondent about occupational health and safety issues. He said he would “do something about it when he returned to the office.”
[12] Transcript 7 April 2022 p.61
[13] Transcript 7 April 2022 p.62
He agreed that employees were permitted to keep their mobile phones in their pockets when they enter the site. He was comfortable with the employees walking from the security gate to the lunch room with their mobile phones in their pockets. He justified that on the basis that they had been through a full safety induction process.[14] When asked if a union official had been through a safety induction process whether he would still be concerned and said “it depends as a visitor I don’t know whether they will comply with our safety requirements because they are not employees and have not been sufficiently trained and they have no control over them.” The only option they had with visitors was to request they had over their mobile phone at the security gate. Regarding the induction process with respect to safety issues about mobile phones he said that training took one to one and half hours. He was asked if a union official undertook 60 to 90 minutes of training regarding issues of safety around mobile phones would he accept that. He said “if that was the decision the business adopted.” He agreed he could put that advice forward to management.
[14] Transcript 7 April 2022 p.62 ln 20 - 27
He said the policy [15]commenced on 8 January 2019 and was being implemented from that date. He was not aware that Mr Cottrell – Dorman attended the site on 8 February 2019 with his mobile phone and was not asked to hand over his mobile phone. He agreed it was his job to enforce a breach of policy and said it was not reported to him.
[15]
On 26 March 2019 Mr Cottrell – Dorman attended the site and entered with his mobile phone. Counsel suggested the policy was not being enforced. Mr Matthews said no report was made to him of any breach. He claimed that Mr Cottrell – Dorman was aware of the policy and failed to offer his phone when he attended at the security gate. Mr Cottrell – Dorman gave evidence that he attended the site on 20 occasions between 8 January 2019 and 24 February 2020 and on none of those occasions was he requested not to enter with his mobile phone and he did in fact enter with his mobile phone.[16]
[16] Transcript 7 April 2022 p.65 ln 1 - 10
Counsel suggested that union officials were not “visitors” as they had a statutory right to enter. Mr Matthews said they were classified “visitors.” He agreed contractors are permitted to take their mobile phones with them on site. He said they go through a safety induction process. He agreed that there would be no safety risk if a union official had been through the induction program and had possession of their mobile phone while carrying out work and it was not being used for any other purpose other than what is required of them to perform their job.[17] He agreed there was no safety risk for a union member sitting in the lunch room reading an enterprise agreement on his mobile phone and no problem with an employee giving the union official his or her mobile phone number or other details that the official required to follow up on an employee’s behalf. Similarly there were no safety concerns if the union official entered a date into his calendar, spoke on the phone or exchanged emails with an employee while sitting in the lunch room. He agreed that employees while in the lunch room regularly made use of their mobile phones.
[17] Transcript 7 April 2022 p.65 ln 40 - 45
He said the employees were subject to confidentiality and privacy agreements and he was concerned about an employee passing information onto a union official. It was suggested that the respondent did not want the applicant to have access to his mobile phone because there were ongoing negotiations between the employer and employees over an enterprise agreement and the respondent was aware that the union was involved on behalf of employees with those negotiations. He denied that the respondent he did not want union officials talking with employees for that reason.
He accepted that a HR employee often sat in the lunch room while a union official was present and that person was there on the 20 visits Mr Cottrell – Dormer had his mobile phone with him. No calls were made to Mr Matthews about that.
He was asked about the incident with David Ashton from AMIST and the letter advising AMIST that Mr Ashton had his mobile phone in the lunch room with him. He agreed he received a letter dated 26 October 2021 (AM 3) where the national client services manager from AMIST wrote “having spoken to David this was simply an oversight due to force of habit as we have always carried our mobile phones onsite for the last 10 years.”[18] Counsel suggested that evidence (they had used their mobile phone on the site for the last 10 years) was not contradicted by the respondent and in fact the Mobile Phone policy had not been enforced. He disagreed and claimed that the “policy had still been enforced.” He said it was possible Mr Ashton was not asked to hand over his phone at the security gate. He agreed that Mr Ashton may have been treated differently to Mr Journeaux. He denied the reason for the different treatment was because Mr Journeaux was the union official. He persisted in claiming that the two persons were NOT treated differently with respect to entry to the site.
[18] Transcript 7 April 2022 p.68 ln 35
He agreed he would not be concerned that a union official could leave the lunch room without authorisation. He agreed taking a mobile phone into the production areas was a safety risk and accepted that to enter the production room a person must “walk through 8 inches of water first and you can’t enter the production room without gum boots and no gum boots were provided to Mr Journeaux.”
Counsel suggested that the first time Mr Cottrell – Dormer was asked to hand over his mobile phone was after the parties were before the Fair Work Commission on 25 May 2020. On 25 June 2020 Mr Cottrell – Dormer was for the first time requested not to bring his mobile phone onto the site. He was asked whether he accepted that the reason the mobile phone policy was enforced after 25 May 2020 was because the respondent “could no longer rely on the Covid19 policy to stop union officials entering the premises.” He denied that. He agreed the AMIST superannuation representatives had no right of entry and attended the premises by invitation. He did not accept that Mr Ashton had brought his laptop computer on site on any occasion.
He was asked about the “visitor site conditions release and indemnity form” and denied that the policy did not apply to every visitor. He accepted that some visitors were permitted to bring their phones on the premises it “depends on the subject of their visit and what they are there for.”[19] He denied that the policy was “not applied to every visitor equally.”
[19] Transcript 7 April 2022 p.75 ln 40 - 42
He agreed he would not ask a Workplace Health and Safety Officer to hand over their mobile phone at the entry site. He said “they have a requirement of entry especially if they are investigating.” He said they are a government official and have power under the Workplace OH&S Act to enter the premises “they have requirements that need to be performed as part of their role for being there.” They are permitted to make phone calls if they are not in the production areas and to read relevant legislation from their phone. He agreed there were security cameras in the lunch room and accepted that if someone was doing something they were not permitted to do it would be caught on security camera. He agreed there were security cameras throughout the premises.
In re-examination he was asked about the safety induction program and said the program for employees differs as it can extend for two or three days. The group safety manager and a number of SLT members ultimately make the decision about whether a union official can bring their mobile phone onto the premises though he agreed he would discuss the issue regarding what training would be required before an official could bring their mobile phone on site. He was not authorised however to make any decision in that regard.[20]
[20] An email was sent to the AMIEU by Mr Matthews on 8 April 2022 discussing the issue though nothing was resolved (Exhibit A1 24 June 2022)
Respondent’s argument
The respondent argued that the respondent could lawfully prohibit a permit holder bringing a mobile phone onto its premises as (a) occupier of the premises and (b) as a reasonable request to comply with an occupational health and safety requirement under section 491 of the FW Act. As the occupier of the premises the respondent was entitled to set conditions of entry for visitors no different from any other occupier which sets conditions of entry for access to premises. The fact that Mr Journeaux had a right of entry under the FW Act did not negate the occupier’s rights. In support of that argument the respondent relied on the decision in AMIEU v Fair Work Australia (2012) FCAFC 85 Flick J with Jessup and Tracey JJ said at [56] – 59]:“The right of entry conferred under section 484 of the FW Act is not an untrammelled right. It is subject to both express and implied constraints.” Express constraints include that the right of a permit holder must be exercised for one or other of the “purposes” set out in section 484, the right of entry is subject to any “reasonable request” that may be made by the occupier of the premises. Further express constraints limit discussion to meal and lunch breaks and an implied constraint is that the right of the permit holder must be exercised so as to promote the object of Part 3 – 4 as set out in section 480.
In AMIEU v Fair Work Australia (ibid) at [63] Flick J said
there is much to be said for the view that the statutory right of entry conferred on a permit holder by section 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier on this approach are only to be diminished to the extent absolutely necessary to give effect to the right conferred.
The respondent relied on the decision in BPL Adelaide Pty Ltd v NUW[21] where Senior Deputy President O’Callaghan found “
I consider that the generally applied restriction on taking imaging capable devices onto the BPL site does not stop NUW permit holders from entering premises for the purpose of holding discussions with employees who work on those premises whose industrial interests the NUW is entitled to represent and who wish to participate in those discussions. It may make those discussions less efficient than they could otherwise have been and it may mean that the union needs to attend the site more frequently but it does not contradict the rights established under Part 3 -4.
[21] [2015] FWC 3905
The respondent contends that the right of entry under the FW Act does not render “absolutely necessary” the need to permit Mr Journeaux to bring his mobile phone with him. He could visit the site and conduct his discussions with members without carrying a mobile phone. As the lawful occupier of the site the respondent was entitled to set conditions of entry applicable to permit holders and other visitors alike.
With respect to whether the request was reasonable the respondent argued that there were reasonable grounds for the respondent imposing restrictions on mobile phones as explained by Mr Matthews[22] that “Teys has had policies in place over an extended period which restrict the ability of employees and visitors to bring image recording devices on site….” The policy was framed against the risks involved in the use of improperly obtaining images[23] and safety risks.
[22] Affidavit of Mr Matthews [6] and [7]
[23] ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; Re Fair Work Australia [2011] FWA 4096

On 17 August 2021 a policy titled “Photography, Image Recording & Mobile Device Use Policy” was in place that provided as follows:
Photography, Image Recording & Mobile Device Use Policy
Purpose of the policy
To protect the intellectual property, confidentiality, accessibility, and competitive advantage relating to documents, machinery, and methods of operation which the company requires such protection as well as comply with any Privacy Laws requiring employee consent for recording or personal images being taken.
Scope of Policy
This policy applies to all Teys Australia employees, contractors and their employees, consultants and visitors to any company’s location
Definition
"Image recording equipment" means and includes video recorders, cameras, mobile phones, iPod's, iPads, tablets and any other tool or piece of equipment which has the capability to record, store, print, publish or replay either static or motion images.
Policy
Other than as approved by the CEO, Group General Manager of Operations, General Manager Corporate Services or site General Manager in accordance with this policy, or as required by law no image recording equipment shall enter or be used at any of the company's locations
Process
General
Subject to the limitations and exemptions outlined below, only company issued image recording equipment is to use within the confines of each plant and only those images which have the specific prior approval of the relevant General Manager shall be permitted to be recorded.
CCTV
CCTV or other monitoring systems may be used by Teys Australia if considered necessary or an improvement to security. The use of other photographic or recording technology shall be restricted to use, authorised by a senior manager of the Vendor and be legally compliant.
Employees
Employees are not permitted to have any form of privately owned image recording device in their possession unless in the area of employee amenities, canteen and/or lunch rooms.
Any deviation from this policy will result in disciplinary action which may include suspension and or termination of employment as per the Counselling & Discipline policy.
Employees must not have any device in their possession (including company and street clothing pockets) whilst in production areas including stockyards, pens, race, dry landing and knocking areas. These restrictions coincide with the company's loose item and glass policy and will be monitored accordingly
Employees exempt from this requirement are only those who due to the nature of their duties and responsibilities are required to use communication and recording tools including ,but not necessarily limited to -
CEO & Senior Leadership Team
General Manager Operations (group and site)
Where WHS or Environmental compliance requirements determine image recording necessary for the purposes of investigation
Where customer claims have been received and investigation to determine compliance with company and customer specifications
Where approval has been sort to prepare training materials to support the ongoing development of Teys Australia employees
Where possible, the relevant employees should be supplied with Company issued communication tools which do not have image recording capability and are supplied solely for business use.
Employees must be informed at induction of the existence of this policy, that it will be strictly enforced, and that any breach of it will be viewed very seriously and could lead to termination of employment.
Visitors
Visitors are not permitted to have any form of privately owned image recording equipment in their possession outside of the area where they initially enter the plant (i.e. front office or front gate security). The relevant Teys Australia staff member responsible for the visitors is to ensure that all such visitor personal equipment is securely stowed before the visitors enter the plant.
Contractors and Contractor Employees
Contractors and their employees are subject to the standard site conditions for contractors in force at each site, Those site conditions are to generally prescribe that no form of image recording equipment is to be allowed on site other than that owned and possessed by the senior contractor representative and where it is demonstrated to Teys Australia that the possession of such equipment on site is necessary for the contractor to conduct essential business This is subject to approval from the relevant site General Manager
Signage
The relevant General Manager is responsible for ensuring that adequate and relevant signage reflecting the intent of this policy is erected and maintained and information regarding this policy is included into all induction materials
The respondent denied that the union had been singled out for differential treatment and claimed that the policy was similarly applied to commercial visitors.[24] The union’s reliance on the fact that delivery drivers did not need to surrender their phones before entry is readily answered by the fact that the drivers were not expected to leave the loading bay area.
[24] Affidavit of Mr Matthews [14]
The respondent argued that mobile phones were dangerous items in a meatworks and meatworks “are manifestly dangerous places with equipment and activities which are inherently hazardous.” Teys is vigilant on occupational health and safety matters and the policy is integral to the company’s maintaining a safe working environment. The respondent argued that the request was reasonable and the policy applied to the premises. The respondent was lawfully permitted to make that request based on the rights of property owner entitled to place conditions of entry onto its site. The fact that a person has a statutory right to enter did not mean those conditions are rendered null and void. Further it was not necessary to achieve the statutory objective of facilitating discussions between the union and its members to give the union a right to bring a mobile phone onto the premises as discussions take place face to face and do not involve the need for a mobile phone. The fact that bringing a mobile phone on site is convenient and would assist the union as the most efficient manner of managing their business to have access to a mobile phone did not make it necessary for the applicant to have access to a mobile phone. The respondent denied any contravention of section 501 and section 502 of the FW Act.
Applicant’s argument
The applicant argued that the respondent did not have the right to determine that a permit holder must comply with whatever pre-conditions it may determine without restriction. Section 486 expressly provides that a permit holder’s right to enter premises is contingent upon compliance with a reasonable request made by an occupier of premises to comply with an occupational health and safety requirement under section 491 of the FW Act. The applicant contends that given the detail of the statutory framework it would be expected that if the legislature intended a permit holder’s right to enter premises to be contingent upon compliance with other categories of request from an occupier then section 486 would have made express provision for such requirements.
The applicant argued that the respondent’s request was not reasonable in the circumstances. Union officials were escorted by an employee manager from the entry and internally on the respondent’s premises at all times.[25] There was no evidence that a union official had entered or would enter production areas. There was no access to production areas from the lunch room where discussions took place. Employees were free to use their mobile phones in the lunch room and an employee manager remains in the lunch room at all times while the union official holds discussions with members. The premises is monitored via CCTV. Further the policy relied on[26] no connection with occupational health and safety issues. Mr Matthews agreed that the policy had “nothing to do with occupational health and safety.[27] There had never been any safety breach relating to a mobile phone in a permit holder’s pocket[28] and a union official on site with a mobile phone would be just as safe as an employee if the union official had undergone training[29] as Mr Journeaux had. Contractors were permitted to enter the site with their mobile phones and Mr Matthews was unable to point to any safety risk with respect to the manner in which a union official conducted business. Mr Matthews agreed there was no safety risk in a union official sitting in the lunch room using a mobile phone[30] and there were no concerns that a union official would leave the lunch room without permission.[31]
[25] Transcript 7 April 2022 p. 59 ln 19
[26] Photography, Image Recording & Mobile Device Use Policy
[27] Transcript 7 April 2022 p. 58 ln 34 - 38
[28] Transcript 7 April 2022 p. 60 ln 45
[29] Transcript 7 April 2022 p. 63 ln 19
[30] Transcript 7 April 2022 p. 66 ln 11, p.67 ln 1 - 12
[31] Transcript 7 April 2022 p. 71 ln 44
The applicant observed that Mr Platten’s evidence about safety issues was consistent with Mr Matthews evidence, the sign above the door on site did not state that mobile phones could not be brought onto the site[32] and there were no safety concerns with a union official sitting in the lunch room with a mobile phone.[33] On the respondent’s own evidence the policy related to the respondent’s concerns regarding commercial confidentiality and protection of its commercial interests and reputation from those who would seek to harm it.[34] The only reference in the respondent’s policy where reference is made to any occupational health and safety is as follows:
Employees must not have any device in their possession (including company and street clothing pockets) whilst in production areas including stockyards, pens, race, dry landing and knocking areas. These restrictions coincide with the company’s loose item and glass policy and will be monitored accordingly.[35]
[32] Transcript 7 April 2022 p. 100 ln 40
[33] Transcript 7 April 2022 p. 106 ln 21
[34] Mr Matthews affidavit [6] Exhibit AM - 1
[35] Op cit p.2
The applicant argued that assuming the respondent’s request related to occupational health and safety requirements the request was not reasonable nor did the request apply “to the premises.” Mr Matthews said people walk around with mobile phones in their pockets;[36] lorry drivers take their mobile phones on site;[37] employees take their mobile phones on site;[38] contractors take their mobile phones on site;[39] and government inspectors are not required to hand over their phones before entry onto the site.[40] Mr Platten said he had never had a problem taking his mobile phone on site in 40 years of employment;[41] truck drivers take their mobile phones on site;[42] Mr Ashton was not asked to hand over his mobile phone before coming onto the site;[43] the checklist at Annexure AP 5 is only used of union officials;[44] Mr Journeaux had been through the same process as contractors before coming onto site;[45] there are no checklists for visitors other than union officials;[46] and truck drivers go to the load out area which is a production area.[47] Nothing is said to truck drivers on entry to the site about their mobile phones.[48]
[36] Transcript 7 April 2022 p.60 ln 34
[37] Transcript 7 April 2022 p.61 ln 21
[38] Transcript 7 April 2022 p.62 ln 18
[39] Transcript 7 April 2022 p.65 ln 36
[40] Transcript 7 April 2022 p.76 ln 8
[41] Transcript 7 April 2022 p.96 ln 24
[42] Transcript 7 April 2022 p.101 ln 16
[43] Transcript 7 April 2022 p. 102 ln 13
[44] Transcript 7 April 2022 p.102 ln 22
[45] Transcript 7 April 2022 p103 ln 10
[46] Transcript 7 April 2022 p.108 ln 16
[47] Transcript 7 April 2022 p.104 ln 32
[48] Transcript 7 April 2022 p.110 ln 44
The applicant contends that the requirement to surrender a mobile phone only applies to union officials. The only basis for differentiation is that Mr Journeaux was and remains a union official and the checklist created on 7 July 2021 and relied on by Mr Platten on 17 August 2021 only applies to union officials. It cannot be said that the request to surrender a mobile phone was a reasonable occupational health and safety requirement within the meaning of section 491 of the FW Act. If an occupational health and safety requirement is to differentiate between categories of persons (such that compliance with the policy is to be demanded of some people and not others) that requirement would only be reasonable if there is a rational or reasonable basis for the differentiation. No such rational or reasonable basis for the differentiation was advanced. No logical or rational reason was offered for suggesting that Mr Journeaux or Mr Cottrell – Dormer’s possession of a mobile phone in the lunch room or on site posed any or any greater occupational health and safety risk than the possession of those devices by an employee using the same area.
As the respondent conceded its policy was not applied to delivery drivers[49] such a differentiation may be appropriate if aimed at preventing visitors from taking photographs of production or images of production areas but was not a rational distinction in terms of occupational health and safety requirements. If the occupational health and safety concern is expressed as the potential for a mobile phone to cause distraction[50]a delivery driver in a loading bay could be distracted by using his mobile phone just as easily as an employee in another part of the premises.
[49] Affidavit of Matthews [13]
[50] Affidavit of Matthews [7]
The applicant contends that the Court should accept that the “real” reason for demanding that a union official hand over their mobile phones on entry to the premises is to frustrate union officials exercising a right of entry and as a consequence the respondent contravened section 501 of the FW Act.
Further in prohibiting the permit holder to enter with a mobile phone that conduct hindered the applicant’s performance of its task in holding discussions and exercising rights under the FW Act. The prohibition on taking a mobile phone onto the premises made it more difficult for the permit holder to exercise his rights due to lack of access to the mobile phone which affects the permit holder’s ability to conduct discussions with employees. Further the requirement to access a mobile phone outside the premises diminished the amount of time available for discussion. In making it more difficult for Mr Journeaux to discharge his functions under the FW Act amounts to intentionally hindering or obstructing the statutory permit holder and as such the respondent contravened section 502 of the FW Act.
Consideration
Part 3-4 of the FW Act contains a detailed legislative scheme regulating the entry of permit holders to the premises of employers and/or occupiers. The legislative scheme contains provisions which regulate:
(a)Who can apply for a right of entry permit, and the criteria for the issue of such permits (Division 6, Subdivision A);
(b)The circumstances in which a permit holder has the right to enter premises and the times at which such entry rights may be exercised (Division 2, Subdivisions A, AA and B and Division 3);
(c)Requirements to give notice prior to entering premises and the times at which such entry rights may be exercised (Division 2, Subdivision C);
(d)The rights that a permit holder may exercise when the permit holder is on the premises (sections 482, 483B); and
(e)Conduct that amounts to prohibited conduct (Division 4 sections 500 to 504)
The Objects of Part 3 -4 are set out in section 480 in the following terms:
s. 480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
In this matter the occupier of the premises sought to prohibit a union official from entering its premises with a mobile phone. Section 480 of the FW requires a balance between the occupier’s right to go about its business without undue inconvenience with the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions. It was not contended for that Mr Journeaux bringing a mobile phone onto the premises would cause any undue inconvenience to the respondent. On the contrary Mr Platten gave evidence that procedures had been put in place to accommodate the union official on 17 August 2021.
Section 484 of the FW Act provides:
“s. 484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
As indicated above in Australasian Meat Industry Employees’ Union v Fair Work Australia and Another (supra) the Court said:
[57] Like other rights of entry conferred by the Fair Work Act (cf. Darlaston v Parker [2010] FCA 771 at [36] to [38][2010] FCA 771; [2010] FCA 771; 189 FCR 1 at 11), s 484 is a statutory right which diminishes the common law rights of an occupier.
…
[59] Sections 484 and 492 of the Fair Work Act thus presumably reflect the balance sought to be struck by the Legislature between the common law rights of an occupier and the rights of entry necessary to promote the objects of Part 3-4. Attempts to strike a balance between potentially competing rights have frequently arisen in an industrial law context.”
…
[63] …. the statutory right of entry conferred on a permit holder by section 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier on this approach are only to be diminished to the extent absolutely necessary to give effect to the right conferred.
In Lane v Arrowcrest Group Pty Limited(1990) 27 FCR 427 at 439 to 440 von Doussa J observed:
[60] The interests which must be taken into account when forming a view as to whether a “request” made by an “occupier” is “reasonable”, however, are not self-evident. Questions arise as to whether the reasonableness of a “request” of an occupier can be dictated exclusively by the proprietary self-interests of the occupier; or whether an occupier must only make a “request” which attempts to “balance” the matters set forth in s 480.
Mr Journeaux and Mr Cottrell – Dormer both union officials gave evidence that each official relied on their mobile phone to ensure that the employees’ rights under section 480 (b) of the FW Act were given effect to enable an employee to receive, at work, information and representation from officials and organisations. As a result of the restrictions imposed through the Covid19 pandemic and safety concerns arising from handling written material and more efficient management of large volumes of written material both officials placed heavy reliance on accessing relevant information stored digitally and accessed readily through their mobile phones. The use made of their mobile phones included being able to refer to industrial instruments such as EBA’s maintained electronically through business records or relevant websites, the ability to enter details of members concerns into the mobile phone and schedule further appointments to follow up those concerns, to respond to urgent inquiries that required reference to existing Awards, to provide information about pay rates and terms and conditions, to share emails and other business records with employees and to receive urgent calls while on site and provide an immediate response to those calls. The applicant argued that it was necessary to have access to a mobile phone to enable an employee to receive relevant information at work from the union official consistent with an employee’s right.

In Australasian Meat Industry Employees Union [2015] FWCFB 5228 the Full Bench of the Fair Work Commission discussed the right of organisations to represent their members in the workplace and “hold discussions” and said:
It seems plain that the ordinary meaning of discussion includes one that is conducted in writing or that includes writing. We do not consider there is anything in the text of section 484 or in Part 3 -4 of the FW Act which suggests the word “discussions” should carry a more narrow meaning confined wholly to oral communication….The application of the ordinary meaning which would permit ‘discussions’ to include or be facilitated by the provision of written material is consistent with the object under Part 3 – 4 in section 480 in particular that part of the object under section 480 (b) which refers to the right of employees to receive at work “information” from officials or organisations. In our view had Parliament intended to limit the right to hold discussions with relevant employees to oral communication it could have easily done so by drafting s 484 of the Act so as to provide the permit holder with a right to enter for the purposes of speaking with relevant employees.
The entry rights prescribed by Part 3 -4 establish a capacity for permit holders to enter premises for the purposes specified in the FW Act including pursuant to section 480 (b) the employees had a right to receive at work “information” from officials or organisations. “Information” is defined as “what is conveyed or represented by a particular arrangement or sequence of things.” Information may be conveyed orally, audibly and/or in written form whether contained in a paper document or stored digitally on a data base or storage facility such as a hard drive or iCloud and accessible electronically via a mobile phone or computer. The Covid19 pandemic accelerated reliance on digital forms of communication and the accessing of information stored digitally in circumstances where significant restrictions were imposed on movement. The Court itself was required to adapt to communicating electronically and access information in digital form and operate its business virtually in cyberspace. Such a requirement rather than being convenient has become a necessary feature of conducting business.
Consistent with the reasoning in Australasian Meat Industry Employees Union (supra) the object under section 480 (b) which refers to the right of employees to receive at work “information” from officials including facilitating the provision of written material when holding discussions, by extension should include facilitating access to written material held in digital form. An official performing that task is unlikely to cause any undue inconvenience to an employer.
I am satisfied that to achieve the statutory objective it was necessary for the applicant to be able to provide information to employees “who had a right to receive at work information from officials or organisations” by accessing information stored in digital form through a mobile phone device. Mr Journeaux sought to rely on his mobile phone for that purpose in seeking permission to enter the premises with his mobile phone. It was more than mere convenience that he sought to enter with his mobile phone but rather to fulfil his statutory function of ensuring an employee was able to receive at work relevant information. There was no dispute between the parties regarding the respondent’s strict prohibition on taking photographs in production areas and/or using an image recording device including a mobile device to take photographs. Nor had there ever been a concern that a union official had offended in that manner.
Was the respondent’s request reasonable?
Section 491 of the Act imposes an obligation on a permit holder to “comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.”
Reliance was placed by the respondent on an occupier’s right to impose conditions on entering the premises. The respondent argued that mobile phones were dangerous items in a meatworks and meatworks “are manifestly dangerous places with equipment and activities which are inherently hazardous” though the respondent not enforce any policy prohibiting persons (other than union officials) from entering the premises with mobile phones. Though the prohibition was purported to comply with an occupational health and safety requirement to the premises Mr Matthews[51] acknowledged that the policy was framed against the risks involved in the use of improperly obtaining images[52] and “safety risks.”
[51] Affidavit of Mr Matthews [6] and [7]
[52] ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; Re Fair Work Australia [2011] FWA 4096
I reject Mr Platten’s claim that the request made of Mr Journeaux not to bring his mobile phone onto the premises was a reasonable request based on policy considerations. Contrary to his evidence I find that the policy had not been enforced consistently and uniformly since its inception in December 2015. I accept Mr Cottrell – Dormer’s evidence that from mid - 2017 and prior to 25 June 2020 no person from Teys Beenleigh had ever requested that Mr Cottrell – Dormer (the permit holder visiting the site at the relevant time) surrender his mobile phone at the security gate or leave it in his car or outside the plant nor was he denied entry on the basis that he was not permitted to bring his mobile phone onto the premises. On the contrary he had regularly prior to 2020 brought his mobile phone onto the premises and used his mobile phone in the lunch room when holding discussions with employees.
David Ashton an employee for AMIST superannuation fund had his mobile phone with him from 5 to 8 October 2021 in the lunch room when he visited the site to hold discussions with employees. Mr Matthews accepted that Mr Ashton could not have been requested to surrender his mobile phone at the entry nor been prohibited from entering the site with his mobile phone. Mr Ashton was not a statutory permit holder but a visitor. In accordance with policy “V “Visitors are not permitted to have any form of privately owned image recording equipment in their possession outside of the area where they initially enter the plant.” When questioned about the visitor site conditions release and indemnity form Mr Platten denied that the policy did not apply to every visitor. He accepted that some visitors were permitted to bring their phones onto the premises it “depends on the subject of their visit and what they are there for.”[53] He denied that the policy was “not applied to every visitor equally.”
[53] Transcript 7 April 2022 p.75 ln 40 - 42
The respondent claimed that a reason for prohibiting the applicant from entering the premises with a mobile phone was because a union official was not subject to employee disciplinary procedures. Mr Ashton would not have been subject to the respondent’s disciplinary procedures however he (or a representative from AMIST) had entered the respondent’s premises with mobile phones “for the past ten years.” [54] Both Mr Journeaux and Mr Cottrell – Dormer indicated had offered an undertaking not to use their mobile phone to take photographs (other than documents provided by employees) or record any image or video.
[54] The national service manager from AMIST responded to a letter sent by the respondent on 26 October 2021 claiming a breach of conditions when visiting the site that the superannuation visitor to the site “had always carried their mobile phones on site with them for the past 10 years.”
The evidence revealed that lorry drivers were permitted to take their mobile phones on site.[55] Contractors were permitted to take their mobile phones on site.[56] Employees were permitted to take their mobile phones on site and use their phones in the lunch room.[57] Fair Work inspectors were not required to surrender their mobile phones at the entry to the premises and were permitted to take their mobile phones on site.[58] People walked around the site with their mobile phones in their pockets save that they did not enter any production areas with mobile phones without specific authorisation.[59] Mr Platten had entered the site for 40 years with his mobile phone without any difficulty. Truck drivers took their mobile phones on site including into the “load out” which was a production area.[60] Mr Ashton had taken his mobile phone on site as recently as October 2021 on more than one occasion and had not been requested to surrender his mobile phone.[61] Mr Journeaux had completed the same induction process as contractors who were permitted to bring their mobile phones on site.[62] Union officials were required to complete a checklist (AP 5) before entering the site. The checklist was created on 7 July 2021 and did not apply to any visitors other than union officials.[63] No explanation was provided why a checklist of conditions were imposed on union officials and no other person seeking to enter the premises. I find that the policy was not uniformly enforced and differentiated against union officials.
[55] Transcript 7 April 2021 p.61 ln 21
[56] Transcript 7 April 2021 p.65 ln 36
[57] Transcript 7 April 2021 p.62 ln 18
[58] Transcript 7 April 2021 p.76 ln 8
[59] Transcript 7 April 2021 p.60 ln 34
[60]Transcript 7 April 2021 p.104 ln 32
[61] Transcript 7 April 2021 p.102 ln 13
[62] Transcript 7 April 2021 p.103 ln 10
[63] Transcript 7 April 2021 p.102 ln 22
It is common ground that union officials (permit holders) were routinely escorted from the entry site to the lunch room and escorted from the lunch room to the entry site at the conclusion of discussions with employees. Both employees and the union official remained in the lunch room while the union official held discussions with employees and no production areas were visible from either the route taken to the lunch room nor from the lunch room. There was no ready access to the production areas and no gum boots were provided to any union official a requirement for accessing the production area through 8 inches of sterile water. CCTV operated throughout the site including in the lunch room.
The respondent argued that the request made of Mr Journeaux regarding his mobile phone was a request to comply with an occupational health and safety requirement that applied to the premises. Mr Matthews agreed that the policy[64] “had nothing to do with occupational health and safety …not this policy.”[65] He said a union official on site with a mobile phone would be just as safe as an employee if the union official had undertaken 60 to 90 minutes of training.[66] Mr Journeaux had completed the induction training for contractors who were permitted to bring their mobile phones onto the site. Mr Matthews had no knowledge of any breach relating to a mobile phone in his 17 year employment with Teys. There was no safety risk in a union official sitting in the lunch room using a mobile phone.[67] Employees were free to use their mobile phones in the lunch room. There was no concern that a union official would leave the lunch room without permission. A union official who entered the premises was escorted by a manager at all times.[68] Mr Matthews claimed that walking with a mobile phone along the route to the lunch room was a safety risk based on the fact that the phone might vibrate. I reject that evidence and note there had never been an incident with a mobile phone (at least for the last 17 years). I find that the request made of Mr Journeaux to surrender his mobile phone at the entry site had little or no connection to any occupational health and safety requirement and did not apply to the premises. Furthermore Danny Cornellison was employed as the Site Workplace Health and Safety Officer at Teys Beenleigh by the respondent.[69] He was not called by the respondent to explain the occupational health a safety requirement that prohibited a union official (and not other persons) from bringing a mobile phone onto the premises. I accept the applicant’s submission that his evidence would not have assisted the respondent’s case.[70]
[64] Photography, Image Recording & Mobile Device Use Policy
[65] Transcript 7 April 2022 p.58 ln 34 - 38
[66] Transcript 7 April 2022 p.63 ln 19
[67] Transcript 7 April 2022 p.66 ln 11 and p.67 ln 1 - 12
[68] Transcript 7 April 2022 p59 ln 19
[69] Transcript 7 April 2022 p57 ln 1
[70] Jones v Dunkel 101 CLR 298
I am satisfied that the respondent differentiated against union officials on no rational basis. Mr Ashton was not asked to hand over his mobile phone before coming onto the site;[71] the checklist at Annexure AP 5 is only used of union officials;[72] Mr Journeaux had been through the same process as contractors before coming onto site;[73] there are no checklists for visitors other than union officials;[74] and truck drivers go to the load out area which is a production area.[75] Nothing is said to truck drivers on entry to the site about their mobile phones.[76]
[71] Transcript 7 April 2022 p. 102 ln 13
[72] Transcript 7 April 2022 p.102 ln 22
[73] Transcript 7 April 2022 p103 ln 10
[74] Transcript 7 April 2022 p.108 ln 16
[75] Transcript 7 April 2022 p.104 ln 32
[76] Transcript 7 April 2022 p.110 ln 44
Mr Platten accepted there was no safety risk should the union official carry with him a mobile phone along a specified route under escort though Mr Matthews said it was possibility should a phone vibrate (which I reject). Mr Matthews said people walk around with mobile phones in their pockets;[77] lorry drivers take their mobile phones on site;[78] employees take their mobile phones on site;[79] contractors take their mobile phones on site;[80] and government inspectors are not required to hand over their phones before entry onto the site.[81] Mr Platten said he had never had a problem taking his mobile phone on site in 40 years of employment;[82] truck drivers take their mobile phones on site;[83]
[77] Transcript 7 April 2022 p.60 ln 34
[78] Transcript 7 April 2022 p.61 ln 21
[79] Transcript 7 April 2022 p.62 ln 18
[80] Transcript 7 April 2022 p.65 ln 36
[81] Transcript 7 April 2022 p.76 ln 8
[82] Transcript 7 April 2022 p.96 ln 24
[83] Transcript 7 April 2022 p.101 ln 16
Discussions were held in the lunch room in the presence of an employee manager and those conditions had never been contravened. There were no safety issues with union officials accessing their mobile phones in the lunch room just as employees freely accessed their mobile phones in the lunch room. Regarding any significant safety risks or occupational health and safety requirements the applicant did not take issue with the respondent’s policy that mobile phones were prohibited from production areas and in that respect the policy was an appropriate occupational health and safety requirement even though it appeared that truck drivers had mobile phones in their possession in production areas. Nor was there any issue with respect to a prohibition on persons on site taking any photographs or images of the premises or work occurring in production areas. In the event there was a work related issue in a production area involving an employee a union official required express permission from the general manager to enter the production area and to photograph a work site if permitted to do so.
Mr Platten’s evidence about safety issues was consistent with Mr Matthew’s evidence. The sign above the door at the entry to the premises did not state that mobile phones could not be brought onto the site.[84] On the respondent’s own evidence the policy related to the respondent’s concerns regarding commercial confidentiality and protection of its commercial interests and reputation from those who would seek to harm it.[85]
[84] Transcript 7 April 2022 p. 100 ln 40
[85] Mr Matthews affidavit [6] Exhibit AM - 1
There was nothing unique that distinguished a union official on health and safety grounds from any other individual be they an employee, contractor or truck driver such that the respondent could justify imposing the pre-condition as a reasonable requirement. The requirement to surrender a mobile phone only applied to union officials. The only basis for differentiation appeared to be that Mr Journeaux was and remains a union official. If an occupational health and safety requirement is to differentiate between categories of persons (such that compliance with the policy is to be demanded of some people and not others) that requirement would only be reasonable if there is a rational or reasonable basis for the differentiation. No such rational or reasonable basis for the differentiation was advanced. No logical or rational reason was offered for suggesting that Mr Journeaux or Mr Cottrell – Dormer’s possession of a mobile phone on site posed any or any greater occupational health and safety risk than the possession of those devices by any other person. Such differentiation may be appropriate if aimed at preventing visitors from taking photographs of production or images of production areas but it is not a rational distinction in terms of occupational health and safety requirements. If the occupational health and safety concern is expressed as the potential for a mobile phone to cause distraction[86] a delivery driver in a loading bay could be distracted by using his mobile phone just as easily as an employee in another part of the premises. I am satisfied that the “Photography, Image Recording & Mobile Device Use Policy” had little or no connection with occupational health and safety issues and did not generally apply to the premises. Mr Platten’s evidence summarised the position the respondent took when he said that some visitors were permitted to bring their mobile phones onto the premises it “depends on the subject of their visit and what they are there for.”[87] I accept that the likely reason for prohibiting Mr Journeaux from bringing his mobile phone onto the premises was due to the fact that he was a union official.
[86] Affidavit of Matthews [7]
[87] Transcript 7 April 2022 p.75 ln 40 - 42
The respondent urged the Court to follow the decision in BPL Adelaide Pty Ltd v NUW[88] where Senior Deputy President O’Callaghan found “I consider that the generally applied restriction on taking imaging capable devices onto the BPL site does not stop NUW permit holders from entering premises for the purpose of holding discussions with employees who work on those premises whose industrial interests the NUW is entitled to represent and who wish to participate in those discussions. It may make those discussions less efficient than they could otherwise have been and it may mean that the union needs to attend the site more frequently but it does not contradict the rights established under Part 3 -4.”
[88] [2015] FWC 3905
140. Regarding the conclusion reached in BPL Adelaide Pty Ltd v NUW (supra) Senior Deputy President O’Callaghan said:
[59] Had it been the case that the policy was exclusively directed at the NUW and that other visitors to the site were able to bring onto the site and use imaging capable devices without restriction, BPL’s capacity to rely on its ownership rights would have been compromised. In this event, an alternative conclusion would have been open to me.” However, on the information before me, I am satisfied that BPL is within its rights as an employer and property owner to insist that site visitors not bring imaging capable devices onto its sites so as to protect its intellectual property, the privacy of its personnel and to support its workplace health and safety obligations. It may be the case that BPL is being overly cautious but it is nevertheless acting within its rights.
I am satisfied that the request made of Mr Journeaux was not a reasonable request. I find that the respondent contravened section 501 of the FW Act by effectively refusing a permit holder entry to the premises.
Did the respondent intentionally hinder and obstruct a permit holder exercising rights

Section 502 of the FW Act provides:
“s.502 (1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
…
(3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.”
In Darlaston v Parker [2010] 189 FCR 1 Flick J held that the reference to
intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions other than an act or conduct that is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act or even an act which could not reasonably be regarded as an obstruction or interference would not fall within the section.
The respondent contends it was not “absolutely necessary” to permit Mr Journeaux to bring his mobile phone onto the site with him for holding discussions with employees but accepted it may have been more convenient and made the union officials task more efficient.
The applicant argued that the prohibition in bringing a mobile phone onto the premises for the purpose of holding discussions hindered the applicant’s performance of its task and the exercise of rights under the FW Act in particular the ability of an employee to receive information at work.
Both witnesses for the applicant gave sound reasons (discussed above) why a mobile phone was necessary for the effective performance of their role as statutory permit holder. When holding discussions a permit holder often requires access to digital records accessible by mobile phone. Both Mr Journeaux and Mr Cottrell – Dormer said:
During discussions some questions require an immediate response such as whether a request to work overtime can be refused;[89]
Urgent matters require immediate responses including addressing health and safety issues;[90]
There is insufficient time to go outside and make a phone call and then return to the site;[91]
Mobile phones are used to make copies of documents;[92]
[89] Transcript 7 April 2022 p.7 ln 21
[90] Transcript 7 April 2022 p8 ln 9
[91] Transcript 7 April 2022 p.8 ln 25
[92] Transcript 7 April 2022 p.12 ln 6
Mr Matthews evidence that the policy restricting persons entering the premises with a mobile phone had been “enforced” for four years[93] was demonstrably false. Union officials were differentiated from other visitors both in being requested to surrender their mobile phones before entering the site and being subjected to conditions not uniformly imposed on other visitors or other statutory permit holders. That limitation ran counter to the specific rights established under Part 3 -4 of the FW Act.
[93] Transcript 7 April 2022 p.63 ln 1
With respect to the issue of the mobile phone Mr Journeaux, told Mr Platten on 17 August 2021 that “I need it. It’s part of my job.” He made it plain to Mr Platten that he could not effectively hold discussions and ensure employees received information at work without his mobile phone and it was necessary for him to bring his mobile phone onto the premises. I am satisfied that Mr Platten hindered or obstructed Mr Journeaux (the statutory permit holder) in the performance of his duty. Mr Platten’s prohibition on Mr Journeaux entering with his mobile phone would make the performance of his task more difficult.
A similar argument was brought by the same Respondent in Application / Notification by The Australasian Meat Industry Employees Union [2015] FWCFB 5228 who argued in that matter that the respondent could prevent a union official from bringing documents onto the site, as part of a purported “propriety right”. The full bench of the Commission found (at [29]) that no such right exists and officials of the Applicant union could bring documents onto the Teys Beenleigh site to facilitate discussions.
I am satisfied that Mr Platten hindered or obstructed Mr Journeaux’s entry to the premises in prohibiting him from entering with a mobile phone. Mr Journeaux’s mobile phone was necessary to be used in the course of business and the refusal by Mr Platten to allow Mr Journeaux to enter with his mobile phone made it more difficult for him to perform his task and ensure the rights of employees were met in particular ensure that an employee received information at work. Mr Journeaux indicated that the time employees had available to participate in discussions was often restricted and it was both difficult and impractical to be required to exit the premises to access a mobile phone on each occasion that was necessary. Employees freely accessed mobile phones in the lunch room and there was no safety risk should a union official also access their mobile phone in the lunch room. Access to a mobile phone in the lunch room would ensure that any request for information made by an employee at work could be readily acceded to through provision of information accessed via a mobile phone. I am satisfied that Mr Platten intentionally hindered or obstructed Mr Journeaux’s entry to the premises in contravention of section 502 of the FW Act.
Penalties
The applicant is seeking penalties be imposed on the respondent for contravention of sections 501 and 502 of the FW Act and any pecuniary penalty imposed be paid to the applicant. Not having heard argument regarding penalty I intend to order that the respondent file written submissions within 7 days on the issue of penalty. In the event that the respondent fails or neglects to file written submissions within the time specified the Court will determine the appropriate penalty and deliver judgment which is otherwise reserved.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.
Associate:
Dated: 19 September 2022

File number(s):	BRG 367 of 2021
Judgment of:	JUDGE TONKIN
Date of judgment:	19 September 2022
Catchwords:	INDUSTRIAL LAW right of entry – Fair Work Act 2009 (Cth) – whether the respondent contravened sections 501 and 502 Fair Work Act 2009 (Cth) – whether the applicant was refused entry to the respondent’s premises – whether the respondent’s request of the permit holder was reasonable – contraventions established – penalties imposed
Legislation:	Fair Work Act 2009 (Cth)
Cases cited:	AMIEU v Fair Work Australia (2012) FCAFC 85 Application / Notification by The Australasian Meat Industry Employees Union [2015] FWCFB 5228 Australasian Meat Industry Employees Union [2015] FWCFB 5228 Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 Application/Notification by BPL Aelaide Pty Ltd [2015] FWC 3905 Darlaston v Parker [2010] 189 FCR 1 Lane v Arrowcrest Group Pty Limited(1990) 27 FCR 427
Division:	Division 2 General Federal Law
Number of paragraphs:	142
Date of last submission/s:	15 August 2022
Date of hearing:	2 April 2022 & 27 June 2022
Place:	Brisbane
Counsel for the Applicant:	Mr O’Brien
Solicitor for the Applicant:	Australasian Meat Industry Employee’s Union
Counsel for the Respondent:	Mr Millar
Solicitor for the Respondent:	Law on Lydiard Lawyers

BRG 367 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Applicant
AND:	TEYS AUSTRALIA BEENLEIGH PTY LTD Respondent

order made by:	JUDGE TONKIN
DATE OF ORDER:	19 September 2022