BPL Adelaide Pty Ltd v National Union of Workers

[2015] FWC 3905

[2015] FWC 3905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

BPL Adelaide Pty Ltd
v
National Union of Workers
(RE2015/397)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 18 JUNE 2015

Alleged dispute concerning acting in an improper manner on premises - rights of entry - restrictions on rights - access policies.

[1] On 12 March 2015 BPL Adelaide Pty Ltd (BPL) lodged an application pursuant to s.505 of the Fair Work Act 2009 (the FW Act), through which it sought an order imposing a condition upon entry rights of officials of the National Union of Workers (the NUW) who attended the BPL premises, such that they cannot bring onto those premises, or use whilst on those premises, mobile phones, cameras, i-pads or recording devices.

[2] The determination of the matter was deferred to enable the parties an extended opportunity to attempt to achieve an agreed position. When those discussions did not resolve the matter, it was the subject of a hearing in Adelaide on 26 May 2015. At this hearing, BPL was represented by Mr Short, of counsel, pursuant to an unopposed grant of permission made under s.596(2)(a). The NUW was represented by Mr Snowball.

[3] In terms of the background to the application, there is no dispute that BPL operates a substantial poultry processing and packaging facility at two interconnected facilities at Wingfield. BPL employ over 600 employees at these sites. A significant proportion of these employees come from non-English speaking backgrounds and, of those, a significant proportion do not speak English.

[4] BPL is part of the Baiada Group of Companies. That Group has a national policy requirement which limits the areas in which mobile telephones and cameras may be operated 1 BPL has a Visitors and Contractors policy which relevantly includes the following requirements:

“IMAGING POLICY:

ADELAIDE POULTRY SITE POLICY DOES NOT ALLOW MOBILE PHONES, IPADS, CAMERAS OR ANY DEVICE CAPABLE OF TAKING OR RECORDING IMAGES TO BE BROUGHT ONTO THE SITE WHILE PRODUCTION IS OCCURRING.

PLEASE SECURE THESE ITEMS IN YOUR VEHICLE OR LEAVE THEM WITH SECURITY.

FAILURE TO FOLLOW THIS POLICY IS A SEVERE BREACH OF SECURITY AND MAY RESULT IN EXPULSION FROM THE SITE ON A TEMPORARY OR PERMANENT BASIS AND MAY INCLUDE LEGAL ACTION.

IF YOU NEED PHOTOS AS PART OF YOUR TASK YOUR BAIADA CONTRACT MANAGER MUST BE ADVISED, SECURITY CAN ARRANGE A COMPANY CAMERA UPON REQUEST AND WITH THE APPROVAL OF MANAGEMENT.” 2

[5] For ease of description in this decision I have referred to these devices generally as “imaging capable devices”.

[6] On 13 April 2015 the parties both agreed that the issue for the FWC to determine in this matter was appropriately described in the following terms: “Whether BPL Adelaide Pty Ltd has the capacity to insist on persons exercising right of entry pursuant to section 484 of the Fair Work Act 2009 (Cth) on its site not to bring in mobile phones or other electronic devices”. 3

[7] As will become clear later in this decision, I have taken it that this description defines the issue to be addressed in this decision and have noted that the material put to me relates to this issue rather than to a broader approach toward issues which might otherwise be addressed through s.505 of the FW Act.

[8] The BPL application is made on the basis that it asserts that the NUW has not complied with and has not agreed to comply with this policy requirement.

[9] The NUW position is that BPL does not have the capacity to insist that persons exercising rights of entry pursuant to s.484 of the FW Act, not bring in mobile phones or other electronic devices, including imaging capable devices.

[10] I have set out the contentions of the parties and summarised the evidence before me below.

[11] The BPL position is that, as the employer and property owner, it has the capacity to insist that persons entering its Wingfield sites not bring imaging capable devices onto those sites and that this capacity includes persons exercising entry rights pursuant to s.484 of the FW Act. BPL advised that the policy is enforced to ensure that sensitive or confidential information is not compromised by images being taken of equipment, processes or plant designs. 4 Further, that the policy ensures the protection of the privacy of employees.5 BPL advise that the policy is also applied for the reasons of work health and safety in that the use of electronic devices in areas where high-risk machinery is operating represents a safety risk.6 Finally, BPL advise that:

“Another rationale for BPL Adelaide implementing and maintaining the VC Procedure arises because of the historical conduct of union officials of the Respondent have previously been found to have engaged in covert filming while exercising right of entry. In more recent times, I have witnessed and also been made aware of breaches of the VC Procedure by union officials of the Respondent using electronic devices on site, even after they were made aware of and did not object to the VC Procedure.” 7

[12] BPL asserts that it consistently applies its policy restrictions in this respect. BPL asserts that the NUW officials exercising entry rights represent a significant contribution to the high number of daily visits by contractors and visitors generally. BPL assert that, since January 2014, NUW officials have exercised rights of entry to the Wingfield sites on 400 occasions. BPL advise that NUW officials are required to comply with the same clearly outlined instructions regarding the implementation of the policy as other visitors. Further, that NUW officials have elected to meet with employees in lunch rooms and are escorted to the relevant lunch rooms for those discussions which occur during work breaks.

[13] BPL advise that employees, including employees of labour hire companies, are permitted to use mobile phones including imaging capable devices in lunch rooms. BPL differentiates between its employees and visitors and contractors on the basis that it advises that employees, including employees of labour hire companies undergo a more substantial induction process, are subject to greater control and disciplinary measures, and permit a higher level of trust. Employees generally keep imaging capable devices in their lockers.

[14] In terms of the NUW right of entry visits, BPL advised of the reasons why it lacked confidence in the behaviour of officials. BPL referred to the 2010 instance of covert filming addressed in my decision of 29 August 2011. 8 Additionally, BPL referred to the following more recent instances:

● Ms Ricketts, a NUW official using her i-pad in a BPL lunchroom in March 2014. That incident was recorded on CCTV film
● Mr Deng, a NUW official refused to leave his mobile telephone with security personnel or in his car, when requested to do so, in September 2014
● Mr Snowball used his mobile telephone in the lunchroom and refused to stop using it despite being asked to do so, in February 2015
● Mr Deng was identified by BPL security personnel in March 2015 as being in a restricted production area without approval or a security escort and without the requisite protective clothing.

[15] In terms of the Order sought, BPL assert that its policy is lawful and reasonable. It asserts that the application of that policy to NUW officials does not restrict those officials from exercising the rights established under the FW Act to hold discussions. BPL advise that it remains prepared to advise NUW officials of any urgent telephone messages and to permit them to access BPL land line telephone facilities. In response to a specific proposition put to the parties, BPL advised that it was prepared to consider permitting NUW officials to bring onto the site, mobile telephones which did not have camera or recording capabilities. Because of its concerns specific to the NUW, BPL does not accept that undertakings relative to the use of imaging capable devices can be relied upon.

[16] Mr Hu is the BPL General Manager. His evidence addressed the circumstances under which he understood Mr Snowball utilised his mobile telephone on 17 February 2015 in the course of a ballot being overseen by a Member of the FWC on the site. Mr Hu detailed the BPL policy on electronic devices and the basis for that policy.

[17] Mr Markou was employed as the BPL Operations Manager until the end of 2014. His evidence went to the consistency of application of the BPL policy in relation to imaging capable devices. His evidence also went to an issue involving Ms Ricketts’ use of her i-Pad in the production lunchroom and to his limited awareness of another occasion when Mr Deng insisted on taking his mobile phone with him on the site.

[18] Mr Filipou is a security officer at the BPL premises. His evidence went to the events of 17 February 2015 where Mr Snowball entered the site with other NUW officials but was later seen to be utilising his mobile telephone. Mr Filopou’s evidence went to the request he made that Mr Snowball leave his phone in his car.

[19] Mr Malchow operates the contract security service for BPL and also undertakes work in that function. His evidence went to the usual process whereby visitors and contractors are required to sign in at the security hut and are made aware of the requirement that they not bring onto that site mobile phones, i-pads, cameras or any other electronic recording devices. Mr Malchow’s evidence went to the general application of the BPL policy in this regard. He advised that officials of the NUW had not been given permission to photograph or record whilst they were on the premises and that these officials previously signed to record their agreement with the entry conditions but, of more recent times, did not do so. Mr Malchow’s evidence went to his direct involvement in the March 2014 incident involving Ms Ricketts, the September 2014 incident involving Mr Deng’s refusal to leave his telephone in the security hut or in his car. His evidence also went to an incident in March 2015 when he was alerted to Mr Deng being in an operational area without an escort, or approval or the appropriate safety footwear.

[20] Mr Patel is the Distribution Manager for BPL. His evidence went to the advice he provided to visitors generally to the effect that if they had electronic devices with them he asked them to leave that device in either the vehicle or with him, for safekeeping in a lockable cupboard. Mr Patel’s evidence went to his discussions with Mr Deng on 30 September 2014 when he reminded Mr Deng of the imaging capable devices policy. Mr Deng advised him that he needed his mobile phone for his personal safety. Mr Patel recalled that Mr Malchow became involved in that discussion but that Mr Deng refused to comply with the policy requirement. Mr Deng then left the site.

[21] The NUW position is that the application of the BPL policy means that access to the site is conditional upon permit holders abiding by that policy and that at least one official has been prevented from accessing the site on that basis. The NUW assert that the application of the policy is unclear in that a number of workers are engaged by Labour hire companies or contractors and do not appear to be subject to the policy. The NUW submits that the policy is primarily applied to NUW officials.

[22] The NUW referred me to the objects of Part 3-4 of the FW Act and the provisions of s.484 and submitted that BPL was not entitled to require persons accessing sites to comply with this policy. The NUW particularly referred to limitations on a permit holders right of entry specified in ss.491 and 492A which related to reasonable requests relative to Occupational Health & Safety requirements and the route permit holders take to reach the area where discussions are to occur respectively. The NUW position was that the FW Act makes no other provision for an employer to place any further limitations or conditions on a permit holder’s exercise of entry rights. In this respect it referred to the Full Bench decision in ANZ Banking Group Limited v Finance Sector Union 9, and the position had been adopted by Williams C in CFMEU v BCG Australia Pty Ltd10consistent with that approach.

[23] Consequently, the NUW position was that BPL did not have a general right to impose conditions on permit holders that went beyond those which are specified in the FW Act. Further, that the BPL policy went beyond the scope of limitations that the Act allows an employer to place on a permit holder.

[24] In the alternative, the NUW argued that if BPL had a general right to place restrictions or conditions on permit holders exercising rights of entry, those conditions must be reasonable in the circumstances. In this regard the NUW assert that the assertion that the policy is required to protect commercially sensitive information is not sustainable with respect to entry rights as permit holders are only permitted to access lunchroom’s and are not permitted to enter production or operational areas. They are escorted when travelling to and from lunchrooms and hence could not use electronic equipment to disclose confidential or sensitive information.

[25] In terms of the privacy basis upon which the BPL policy is founded, the NUW advised that officials exercising entry rights do not have access to documents information that could compromise a person’s privacy. No such material is available or accessible in the lunchrooms. In terms of health and safety issues, the NUW asserts that, because access is limited to lunchrooms and officials are escorted, there is no access to any areas containing heavy, noisy or fast moving machinery and hence no capacity for the use of imaging devices in a manner which could compromise workplace health or safety.

[26] In terms of the past conduct of NUW officials, the NUW advised that the circumstances addressed in 2010 are not now relevant and that steps were subsequently taken to ensure that such an incident did not recur. The NUW is not aware of any instances since 2010 where an official has taken any videos or photographs whilst exercising entry rights at BPL and has indicated that it is prepared to provide BPL with written undertakings that NUW officials exercising rights of entry will refrain from taking any images or video on the BPL premises.

[27] The NUW advised that the use of mobile phones and or tablets is crucial to an official’s ability to hold discussions with employees. Those mobile phones and/or tablets are used to:

● ascertain whether employees are members of the NUW
● allow employees to join the NUW
● see whether certain employees are financial members of the NUW or if their union dues are in arrears
● update member information on the NUW database
● provide translated information to employees who are not able to communicate properly in English
● access awards, agreements and legislation
● contact other NUW officials in order to assist employees.

[28] Accordingly, the NUW asserted that the BPL policy represents a restriction on its officials which limits their ability to hold discussions with employees, and that this restriction may be in breach of s.502 of the FW Act.

[29] The NUW also advised that at least two of its officials who regularly exercise entry rights at the BPL premises have caring responsibilities for young children and that, in the event that these officials could not be contacted whilst on the site, this poses a significant risk to health and safety.

[30] Mr Whenan is an Organiser with the NUW and holds a right of entry permit. His evidence went to his experience of visiting the BPL site. Mr Whenan advised that he had never been shown the BPL Visitors and Contractors policy statement 11 at the BPL premises. He advised that BPL security personnel used to provide, or read to him its written instruction regarding the exercise of entry rights12 which specified the entry arrangements and expressly prohibited electronic recordings or photography, but that, of more recent times, the security personnel would merely ask if he was aware of the document. He advised that he was aware of this policy requirement.

[31] Mr Whenan’s evidence was that he had witnessed persons who worked for subcontractors or labour hire companies entering the BPL site with imaging capable devices and using mobile telephones in the lunchroom. Mr Whenan’s evidence went to the restrictions limiting NUW official’s movement around the BPL site and the extent to which there was no access to any production areas. He advised that NUW officials accessing the BPL site use mobile telephones and tablets as part of their normal duties associated with checking union membership arrangements, translation and access to regulatory information. Further, that not having access to mobile telephones or i-pads whilst at BPL, limited his ability to have effective discussions and to provide advice and assistance to employees.

[32] Mr Whenan advised that he was concerned that, given that he had two young children, he needed access to his mobile telephone so as to be contactable at all times. Mr Whenan was aware of the right of entry training arrangements implemented by the NUW for officials after the 2010 incidence of covert filming and was not aware of any official who had, since that time, used an electronic device to take videos or photographs whilst exercising entry rights on the BPL premises. Notwithstanding this, Mr Whenan confirmed that he had taken his mobile phone onto the BPL premises.

Findings

[33] Before setting out my conclusions relative to the operation of the FW Act, I have summarised the conclusions I have reached about the various issues of fact which are in dispute between the parties.

[34] I have concluded that BPL generally applies its policy which requires that all visitors or contractors entering the Wingfield sites not bring onto those sites imaging capable devices. The evidence before me does not establish that this policy is selectively applied to NUW officials. The evidence before me confirms that BPL has a different set of requirements for employees and persons who work under a labour hire contracting arrangement. These persons are permitted to bring imaging capable devices onto the BPL site and use those devices in the lunchrooms.

[35] The evidence before me establishes that, apart from the issue of the application of the policy in question, BPL has not sought to limit or restrict NUW officials from exercising entry rights consistent with the provisions of the FW Act.

[36] I have concluded that the lunchrooms do not contain commercially sensitive information and that operational facilities can only be obliquely observed from certain parts of the lunchrooms and/or toilet facilities. 13

[37] I have concluded that, notwithstanding differences in the evidence about just what information was provided to NUW officials about the BPL policy as they entered the site, the officials were in no doubt that they were not permitted to enter the site with imaging capable devices. It is equally clear that the NUW officials regularly disputed this requirement. For example, Mr Whenan was in no doubt that he was not permitted to bring his mobile onto the site but nevertheless did so. 14 There was no dispute that Mr Snowball refused to cease using his phone on 17 February 2015 whilst an FWC Commissioner was on the site conducting a majority support determination ballot. I have also accepted that Mr Deng disputed the mobile phone policy when he insisted on bringing his mobile phone on site on 30 September 2014.

[38] I have also accepted that, with the exception of Mr Deng’s behaviour in March 2015 when he was found outside, unescorted, in a production area, there is no evidence that NUW officials have breached the BPL instructions relating to where they were permitted to go whilst on the BPL sites. There is evidence of the NUW officials 15 using mobile phones in lunchrooms, as do employees.

[39] I have also accepted the evidence of Mr Whenan, to the effect that the use of mobile phones and i-pads significantly increases the efficiency of meetings between NUW officials and members or employees considered to be members. I have accepted that this extends to checking membership details, joining employees up as members and checking entitlements. In reaching this conclusion I have accepted the submissions of Mr Snowball and the evidence of Mr Whenan.

[40] Finally, the evidence before me does not permit any conclusion relative to the repetition of behaviour of the nature considered in my 2011 decision. 16

[41] The application is made pursuant to s.505 of the FW Act which states:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

[42] Given the agreed characterisation of the dispute whereby the parties have both agreed that the issue to be determined goes to the capacity of BPL to insist on persons exercising entry rights pursuant to s.484 of the FW Act, not bring onto its site mobile phones or other electronic devices, I have initially considered the extent to which that policy requirement contravenes the entry rights established under Part 3-4 of the FW Act.

[43] The Objects of this part are set out in s.480 in the following terms:

“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.”

[44] Part 3-4 establishes the various purposes which give rise to entry rights. The only purpose at issue here relates to entries for the purposes of discussions with BPL employees. This purpose is addressed in Subdivision B of Part 3-4. Section 484 states:

“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.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”

[45] Section 486 restricts permit holders to the rights established under this Subdivision. Section 497, 499, 490, 492 and 492A regulate the requirements for entry notices, the production of authority documents and the times and places at which entry rights may be exercised. None of these issues are relevant to the circumstances here.

[46] Section 491 states:

“491 Occupational health and safety requirements

The permit holder must 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.

Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).”

[47] In ANZ Banking Group Ltd v Finance Sector Union 17 a Full Bench considered the extent to which the provisions of the Workplace Relations Act 1996 (the WR Act) permitted the Australian Industrial Relations Commission to make an order which enabled permit holders to “walk through the work site and approach employees at their workstations”.18 In that matter the Full Bench stated:

“[39] It is clear that right of entry under s.285B (or C) of the Act is not at large. It is for specified purposes and subject to specified conditions. In that statutory context, it can be concluded that the conditions or limitations upon the right of entry are specified in the Act. If further conditions or constraints were intended, the Parliament would have identified and specified such further limitations. It follows that there is no warrant for imposing further conditions upon the statutory right of entry. There is also no warrant for inferring a condition that the permit holder identifies the suspected breach to the employer. Nor is there any warrant for importing a condition that the right of entry for the purpose of interviewing employees during working hours may not be at the worksite. With respect, we do not agree with the ANZ's contention that the location of interviews undertaken pursuant to s.285B(3)(c) of the Act is entirely at the employer's prerogative.81 Any additional condition not evident in s.285C of the Act might be seen to detract from the purpose of the provision and exercise of a statutory right of entry.”

[48] The Full Bench continued, to state:

“[47] We note, at a practical level, that the exercise of the right of entry, whether under s.285B or s.285C often involves a level of agreement between the relevant organisation and the relevant employer, directed to the statutory purpose of the right of entry, but in a manner which minimises any disruption to the employer's business and accommodates other obligations upon the employer.85 Indeed, the ANZ and FSU have gone some way to reaching such an accommodation in the circumstances considered by Smith C, in that there is agreement as to the manner of giving effect to the substantive part of any interviews, which minimises any disruption to work or risks of exposure of private information. The parties are apart only in respect of whether or not an approach to employees for the purpose of an initial stage of the interview process ought to occur at the workstations of employees.”

[49] That decision, fundamentally dealt with a dispute about where and when entry rights could be exercised.

[50] Additionally, in CFMEU v BCG Australia Pty Ltd, Commissioner Williams dealt with a dispute about when and where the entry rights could be exercised.

[51] There is a substantial difference between these disputes about where rights could be exercised and the current matter. Not only does that FW Act now specifically deal with where entry rights can be exercised, the issue here relates to the application of a general policy requirement not addressed in the FW Act.

[52] I also note that amongst numerous other decisions, in CFMEU v BCG (Australia) Pty Ltd, Watson SDP dealt with a dispute about entry rights relative to whether and where those rights could be exercised. An appeal against that decision was dismissed. In his decision Watson SDP balanced the interests of the employer and occupier, with those of the employees and the Union and public interest considerations. The Order he ultimately issued went to meeting locations and means of accessing those locations. Whilst the provisions of the then WR Act have since changed in the FW Act, I have accepted that his approach of striking a balance between differing interests remain relevant.

[53] Whilst I note that there are clear similarities between the right of entry provisions in the WR Act and those that now apply in the FW Act, the legislation now prescribes a clearer prescription of what rights may be exercised and where they may occur.

[54] In Australasian Meat Industry Employees’ Union v Fair Work Australia and Another 19 (AMIEU) the Full Federal Court considered the extent to which entry rights under the FW Act, as it then applied, extended to allow a union to insist on meetings with employees to occur in lunchrooms. Again, I note that these provisions have subsequently been amended. Flick J stated:

“56. The right of entry conferred by s 484 is thus not an untrammelled right. It is a right subject to both express and implied constraints. One express constraint is that the right of a permit holder is one that must be exercised for one or other of the “purposes” set forth in s 484. Another express constraint is that the right of entry is subject to any “reasonable request” that may be made by the occupier of the premises that the permit holder seeks to enter. A further express constraint is that contained within s 490(2) limiting discussion to meal and lunch breaks. An implied constraint is that the right must be exercised so as to promote the object of Part 3-4 as set forth in s 480.

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; 189 FCR 1 at 11), s 484 is a statutory right which diminishes the common law rights of an occupier.

58. These rights of an occupier of property have long been cherished. Thus, in Semayne’s Case [1572] EngR 333; (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that:

The house of every one is his castle ...

The Earl of Chatham is reported as saying:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement.

Comparatively (much more) recently, in Entick v Carrington (1765) 19 St Trials 1029 at 1066 Lord Camden LCJ observed that:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him ...

This basic principle has been carried forward in time: e.g., Southam v Smout [1964] 1 QB 308 at 320 per Lord Denning MR. And it is not a principle confined to the history of England – it is a principle which continues to apply with equal force in Australia today: e.g., Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ.

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. Thus, when construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62, Keely, Gray and Ryan JJ observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Limited (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

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.

It may for present purposes be accepted that a “request” which hinders or impedes or frustrates the statutory right of entry conferred by s 484 could well be considered to be a “request” which was not “reasonable”. The Legislature has addressed, at least in part, this question when it provides in s 492(2)(b) that a request is “unreasonable” if made with one or other of the “intentions” there set forth. Presumably it matters not whether the occupier achieves the intended purpose of (for example) “intimidating persons who might participate in the interviews or discussions”.

61. But a “request” which falls short of hindering or impeding or frustrating the right of entry or which is not rendered “unreasonable” by reason of s 492(2) may be “reasonable” from the occupier’s perspective and “unreasonable” from the perspective of the permit holder.”

[55] It seems to me that the entry rights prescribed by Part 3-4 must be seen as establishing a capacity for permit holders to enter premises for the purposes specified in that Part of the FW Act, and to do so in ways which are expressly specified in that Part. I do not consider that there is anything about Part 3-4 that represents such a prescriptive code that the exercise of normal ownership rights is consequently usurped. Were that to be the case, a property owner would not be able to make reasonable requirements which protected its intellectual property and its security. There can be no doubt that if a limitation is placed on a permit holder which runs counter to the specific rights established under Part 3-4, that limitation cannot be sustained under the FW Act. However, if a property owner has in place limitations or restrictions governing behaviour of visitors, generally, those limitations may reflect the application of normal property ownership rights.

[56] Part 3-4 does not operate so as to limit or restrict a property owner or an employer from specifying the ownership rights which are of concern to it and requiring that all visitors to its premises comply with those particular policy requirements. That is, Part 3-4 does not replace property ownership rights. It simply establishes qualified rights on the part of permit holders so as to allow access to employees.

[57] In this case, 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 purposes 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. In terms of those efficiency issues, I note that there are many factors which may contribute to the efficiency of discussions. These range from union membership systems and software to the quality of hardware. Indeed, as technological advances continue, those efficiency opportunities will no doubt become even more pronounced.

[58] As a second issue I have considered whether, on the approach applied by Flick J in AMIEU, a generally and consistently applied policy which has a defensible basis such that compliance with it represents a ‘reasonable request’, 20 is consistent with the objects of this Part of the FW Act. In this instance, the policy is generally applied. Exceptions to it have been made out on sustainable grounds and the central issue goes to whether the NUW should be exempted from the general policy application. I am satisfied that BPL is able to generally implement its policy as the employer/owner and that it is consistent with its objective of protecting its commercial interests, making compliance with the policy a reasonable request.

[59] Had it been the case that the evidence indicated that the BPL 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.

[60] I have considered the extent to which BPL permits its employees, including its labour hire employees, to bring imaging capable devices onto the site and to use these in designated lunchrooms. I am not satisfied that this is fundamentally inconsistent with BPL’s rights as a property owner and an employer. Mr Hu’s evidence was that employees, including labour hire employees, were subject to a far more extensive induction process and to disciplinary actions not available with respect to other visitors to the sites. That explanation identifies factors which distinguish between employees and visitors generally.

[61] Consequently, I have concluded that BPL has the capacity to insist on compliance with its imaging devices policy so long as that policy remains generally applied to site visitors. Consequently, my conclusion relative to the particular issue referred to me is that BPL has the capacity to insist on persons exercising right of entry pursuant to s.484 of the FW Act not to bring in mobile phones or other electric devices.

[62] Notwithstanding this conclusion, it seems to me that the issue which the parties agreed needed determination may not satisfactorily address the concerns of either BPL, or the NUW. Those issues may include matters of visit frequency and the NUW’s desire to maximise the efficiency of its visits. In these respects the issue would then become a question of whether, in all the circumstances, it would be reasonable to exempt NUW officials from the application of the BPL imaging policy In this respect, notwithstanding the more limited question put to me in this matter, I have considered whether s.505 requires a conclusion that NUW officials who have given an undertaking to use imaging capable devices for specified purposes and in specified locations only, should be allowed to do so. This is a different question to the extent to which BPL has the capacity to require enforcement of its imaging devices policy which was the issue the parties agreed would be determined in this decision. Section 505 gives the FWC the jurisdiction to determine a dispute of this extended nature. I have considered whether the information currently before me enables a conclusion about what is reasonable in these circumstances.

[63] A number of factors favour the application of a reasonable conclusion that limited use should be permitted so as to be consistent with the objects of Part 3-4 of the F W Act. These include the extent to which NUW officials meet with employees in lunchrooms and are escorted to and from those lunchrooms, where employees are permitted to use their mobile phones. It is also clear that there is only limited potential for production activities to be observed from those lunchrooms and only limited potential for the use of imaging capable devices to represent a safety risk.

[64] Other factors go against the capacity to establish a reasonable and durable conclusion. These include the extent to which various of the NUW officials have blatantly disregarded the BPL policy instructions. Mr Deng’s behaviour in breaching known instructions relative to requiring an escort and being present in a production area creates a legitimate substantial doubt about the reliability of at least one of the NUW officials.

[65] Other factors represent unknown but potentially relevant considerations. A critical issue in this respect involves the frequency of use of entry rights. The evidence of 400 visits since January 2014, could, of itself, be the subject of disputation. Another unknown factor goes to what, if any penalties the NUW may agree to in the event that an undertaking is breached.

[66] There are numerous commonsense options which might be considered by the parties as an alternative to the current mutually resource intensive practices. Without being at all exhaustive or prescriptive, these include the phones being carried to and from lunch rooms by security staff on the basis of reduced right of entry frequency and a clear undertaking about the loss of that capacity in the event that entry protocols are breached. However, the unknown factors simply do not enable a conclusion based on an assessment of what is reasonable. If the parties both wanted to review their positions in this respect, further consideration of these options could be undertaken.

[67] Consequently, I have determined the issue argued before me on the basis that BPL has the capacity to insist on compliance with its policy restriction on the taking of imaging capable devices onto its sites. I doubt very much that this will resolve, or even improve the working relationship between the NUW and BPL, or the efficiency of their respective resource utilisation. As a result I will relist the matter to give the parties the opportunity to advise whether there is the opportunity to consider alternative solutions to what is a broader issue.

Appearances:

A Short counsel for BPL Adelaide Pty Ltd.

A Snowball for the National Union of Workers.

Hearing details:

2015.

Adelaide:

March 17

May 26.

 1   Exhibit A5, Attachment DH1

 2   Exhibit A5, Attachment DH3

 3   Exhibit A4

 4   Exhibit A5, para 11

 5   Exhibit A5, para 12

 6   Exhibit A5, para 13

 7   Exhibit A5, para 14

 8   [2011] FWA 5824

 9   PR951766

 10   [2008] AIRC 55

 11   Exhibit A7, Attachment GM1

 12   Exhibit A7, Attachment GM2

 13   See the evidence of Mr Hu, Transcript, 25 May 2015, 10.20 am

 14   See Transcript, 25 May 2015, 12.49-12.52 pm

 15   Ms Ricketts, Mr Snowball and Mr Whenan

 16   [2011] FWA 5824

 17   PR951766

 18   PR951766, para [15]

 19 [2012] FCAFC 85

 20   AMIEU, para 56

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