A recent decision of the Federal Circuit and Family Court of Australia examined whether an employer’s condition of entry for a permit-holder – to not carry a mobile phone – was an unreasonable interference with the permit-holder’s rights of entry.

What are a union permit-holder’s rights of entry?

The Fair Work Act 2009 (Cth) (FW Act) provides for rights for union permit-holders to enter work premises to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the FW Act. The FW Act seeks to balance these rights with the employer’s right to go about its business without undue inconvenience.

The FW Act prohibits a person from intentionally hindering or obstructing a permit-holder exercising rights of entry. Any non-accidental action by the employer that makes it more difficult (in an appreciable sense) for the permit-holder to discharge their functions is prohibited.

The FW Act provides that a permit-holder must comply with any reasonable request by the employer for the permit-holder to comply with an occupational health and safety requirement that applies to the premises.

One of the objects of the entry rights given by the FW Act is to give effect to the rights of employees to receive information from union officials at work. This right includes facilitating the provision of written material when holding discussions, and 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.

Another purpose for rights of entry under the FW Act is for a union permit-holder to hold discussions with one or more employees who perform work on the premises, who are eligible to join the union and who wish to participate in those discussions.

The exercise of this right of entry was the subject of a recent decision of the Federal Circuit and Family Court of Australia.

Can entry be conditional on not carrying a mobile phone?

In Australasian Meat Industry Employees’ Union v Teys Australia Beenleigh Pty Ltd (2022), the employer had made the exercise of the right of entry conditional upon the official not bringing his mobile phone with him.

The Court ruled this was unreasonable interference with the permit-holder’s rights of entry and therefore the employer had contravened the FW Act.

The Court noted the pandemic has 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.

The Court was satisfied that to give effect to the FW Act right of union members to receive information from officials at work, it was necessary for the official to be able to provide information to employees by accessing information stored in digital form through a mobile phone device.

It was more than mere convenience that the official in this case 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. The use made of their mobile phones included:

• referring to enterprise agreements on the Fair Work websites;
• entering details of members concerns into the mobile phone;
• scheduling further appointments to follow up concerns;
• responding to urgent enquiries that required reference to existing awards;
• providing information about pay rates, and terms and conditions;
• sharing emails and other business records with employees; and
• receiving urgent calls while on site and providing an immediate response to those calls.

The official made it plain 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. The Court was satisfied the official had been hindered or obstructed in the performance of his duty.

The Court rejected the employer’s attempt to justify the phone prohibition on safety grounds, noting the official was holding discussions in the lunchroom in the presence of an employee manager, giving rise to no safety risks.