Federal Court rejects employer’s ban on union possessing mobile phone during right of entry

Federal Court rejects employer’s ban on union possessing mobile phone during right of entry

The Federal Court has determined that an employer’s decision to refuse to allow a union official to possess their mobile phone during a workplace right of entry was unreasonable. Further, the court determined that, in doing so, the employer differentiated against union officials on no rational basis.

The employer, Teys Australia Pty Ltd (Teys), operates meat processing facilities at 14 sites across Australia, employing approximately 4,150 employees. The right of entry issue related to a meat processing facility at Beenleigh on the southern outskirts of Brisbane.

On 17 August 2021, Mr Journeaux, the State Secretary of the Australian Meat Industry Employees Union (AMIEU), attended the Beenleigh site to undertake a right of entry. There was no dispute that he held a permit issued under s 512 of the Fair Work Act 2009 (the FW Act) and that he had given Teys the required statutory notice to attend the site. He had also attended the site on previous occasions.

When he attended the site, he was informed by a management representative of Teys that he could not enter the premises while in possession of his mobile phone. Teys suggested the official could either leave his phone in his vehicle or place it in a locked box at the security gate. After some discussion, Mr Journeaux did not enter the premises, returned to his vehicle, and left the site.

In evidence before Justice Amanda Tonkin, Mr Journeaux acknowledged he was aware of rules at the site which prohibited mobile phones from production areas due to health and safety risks. However, he said that the path he took from the site entrance to the lunchroom, where he met with employees to hold discussions, did not allow him to access production areas, and he also acknowledged that union officials did not have the right to access production areas.

Under cross-examination, Mr Journeaux stated that he required his mobile phone to access the site’s EBA, the award and other documents, access member’s files electronically, as well as allowing him to respond to any urgent enquiries and receive phone calls from other members in other workplaces, that required an immediate response. On many previous occasions, he and other officials had entered the site without their possession of mobile phones being challenged.

There was evidence that employees, contractors and delivery drivers were all free to carry their mobile phones on-site in all approved areas.

In her judgement affirming the right of a union official to possess a phone on the site, Justice Tonkin noted,

“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”.

Justice Tonkin further noted,

“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”.

Moreover, Justice Tonkin determined that Teys’ actions in the matter intentionally hindered or obstructed the officials’ entry to the premises in contravention of section 502 of the FW Act.

Written submissions have been requested of the AMIEU within seven days on the issue of appropriate penalties to be imposed on Teys for the contraventions.

Workforce Advisory can assist with the introduction of mobile phone restrictions that must be consistently applied to all visitors or persons attending a worksite.

Australasian Meat Industry Employees’ Union v Teys Australia Beenleigh Pty Ltd [2022] FedCFamC2G 782 (19 September 2022)

For queries about unions, right of entry, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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