Federal Court of Australia

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2024] FCA 259

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On the morning of 17 August 2021, the then State Secretary of the Australasian Meat Industry Employees’ Union (the union), Mr Matthew Journeaux, attended at the security gate of the premises of Teys Australia Beenleigh Pty Ltd (Teys) at Beenleigh in Queensland. Initially, Mr Journeaux had a conversation with a security guard at the gate. That conversation concerned a visitors’ induction. It also entailed Mr Journeaux furnishing the security guard with a Q-Fever card. The guard provided Mr Journeaux with a “contractor certificate” and informed him that he would need to produce that document on future visits. The security guard then called a Mr Allan Platten. Mr Platten was a manager in the employ of Teys.

2    Shortly afterwards, at about 8.15am, Mr Platten arrived at the security gate. Mr Platten and Mr Journeaux were known to each other. They exchanged greetings. Mr Platten asked to see Mr Journeaux’s entry permit. This was provided to him by Mr Journeaux. The following exchange then took place between them, as found by the primary judge, at [19] of Australasian Meat Industry Employees’ Union v Teys Australia Beenleigh Pty Ltd [2022] FedCFamC2G 782:

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?”

In the upshot, Mr Journeaux returned to his car and left the premises.

3    At the time, Teys had a policy that union permit holders were not permitted to bring a mobile phone onto its Beenleigh premises. The primary judge accepted evidence given by Mr Journeaux that it was impractical for him 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.

4    Situated at the premises was a large meatworks. Mr Journeaux was aware that mobile phones were prohibited from production areas at the meatworks for health and safety reasons. Employees, though prohibited from having a mobile phone in production areas, were allowed to bring mobile phones onto the site and to use them in their lunch or “crib” room. These facts were not controversial.

5    In the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) against those facts, the learned primary judge upheld a case brought by the union against Teys that, on 17 August 2021, Teys had contravened s 501 of the Fair Work Act 2009 (Cth) (the Act) and, also on that date, had contravened s 502 of the Act: see Australasian Meat Industry Employees’ Union v Teys Australia Beenleigh Pty Ltd [2022] FedCFamC2G 782. Thereafter, the primary judge imposed a pecuniary penalty of $30,000 in respect of those contraventions: see Australasian Meat Industry Employees’ Union v Teys Australia Beenleigh Pty Ltd (No 2) [2022] FedCFamC2G 933.

6    Teys has appealed to this Court against both the order declaring that it had contravened the Act in the way indicated as well as against the order imposing the pecuniary penalty. The notice of appeal is, with all due respect to its author, prolix. The grounds as stated are as follows:

Grounds of appeal

1.    The learned trial judge erred in her finding at [43] that ‘Mr Platten hindered or obstructed Mr Journeaux’s right of entry’ as not permitting a mobile phone on site cannot be regarded as hindering or obstructing a right of entry.

2.    The learned trial judge erred at [45] in failing to consider the Appellant’s alternative argument that relied on the Appellant’s rights as occupier of the site rather than section 491 of the Fair Work Act 2009 (Cth) (FW Act).

3.    The learned trial judge erred at [46] in her approach on ‘reasonableness’, as

(a)    ‘reasonableness’ is not a requirement for a refusal to allow a mobile phone on site based on the Appellant’s rights as occupier of the site; and

(b)     to the extent that ‘reasonableness’ of a request forms a part of the test to satisfy section 491 of the FW Act, the evidence before the Court was sufficient to satisfy the test.

4.    The learned trial judge erred:

(a)    in her finding at [45] that a ‘superannuation representative was not asked to hand over his mobile phone before coming onto the site’ as there was no evidence, or insufficient evidence, to make out that contention, and the finding was contrary to such evidence as was before the Court; and

(b)    in that even if the relevant policy of the Appellant had been applied inconsistently, it did not mean that there had been a contravention of the FW Act.

5.    The learned trial judge erred in her findings at [47] in that:

(a)    the right contemplated by section 480(b) of the FW Act, for employees to receive information at work, does not prevent a ban on mobile phones being brought on site; and

(b)    a right to bring a mobile phone on site, if such a right exists, does not extend to a right to bring image recording equipment on site.

6.    The learned trial judge erred in her reliance at [47] on the evidence of Mr Cottrell-Dormer, as such evidence ought not to have been admitted at trial as he was not present at the site on the date of the alleged contravention and his evidence was of no relevance.

7.    The learned trial judge erred in her finding at [50] that the Appellant had contravened the FW Act given the finding in the preceding sentence that ‘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’.

8.    The learned trial judge erred in her conclusion at [53] of the Final Judgment in the imposition of a penalty which was manifestly excessive.

9.    The learned trial judge erred in that the Final Judgment was based on findings of liability in [2022] FedCFamC2G 782 (the Liability Judgment) which were in error, as:

(a)    the learned trial judge, at [141] of the Liability Judgment, erred in concluding that preventing Mr Journeaux bringing a mobile phone on site ‘made it more difficult for him to perform his task’ and that this constituted hindering or obstructing Mr Journeaux’s entry to the site (being the error specified in appeal ground 1 above);

(b)    the learned trial judge, at [117] to [132] of the Liability Judgment, failed to give separate consideration to the Appellant’s rights as occupier in determining conditions of entry onto the site (being the error specified in appeal ground 2 above);

(c)    the learned trial judge, at [132] of the Liability Judgment, imposed a condition of reasonableness from section 491 of the FW Act which is not applicable to the defence based on the Appellant’s rights as occupier (being the error specified in appeal ground 3 above);

(d)    the learned trial judge, at [119] to [122] of the Liability Judgment, erred in finding that there had been inconsistent application of the Appellant’s policy, as there was no evidence, or insufficient evidence, in support of that proposition, and even if it were true, it does not mean that there is an enforceable right to disregard the policy (being the error specified in appeal ground 4 above);

(e)    the learned trial judge has erred in finding a right to have a mobile phone as meaning a person has a right to bring image recording equipment on site (being the error specified in appeal ground 5 above);

(f)    the learned trial judge was in error at [32] to [47] of the Liability Judgment in admitting the evidence of Mr Cottrell-Dormer (being the error specified in appeal ground 6 above);

(g)    the learned trial judge was in error at [114] of the Liability Judgment in taking into account the effect of COVID-19 on accelerating reliance on digital forms of communication, which was an irrelevant consideration in determining whether the Appellant had breached the FW Act;

(h)    the learned trial judge erred in the finding at [124] of the Liability Judgment that a Jones v Dunkel inference was available concerning the absence of Mr Cornellison, when he was not present for the alleged contravention and the basis for such an inference was not made out; and

(i)    the learned trial judge erred at [115] and [140] in misconstruing the Full Bench decision in Application by AMIEU [2015] FWCFB 5228, as that decision does not find that no ‘proprietary right’ exists, and in that case the ‘discussions’ concerned were in written form.

[emphasis in original]

7    For all its prolixity in relation to whether or not there was error in respect of the primary judge’s conclusions as to Teys having committed contraventions of s 501 and s 502, at the heart of the challenge was a very particular proposition. This formed the centrepiece of submissions on the appeal.

8    The inspiration for and essence of the submission was found in the following observation made by Flick J in Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389 (AMIEU v FWA), at [63]. His Honour stated:

… There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 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. Subject only to the requirement that an occupier make a “reasonable request”, the balance that the Legislature has sought to achieve between granting a statutory right of access and the consequent diminution of common law rights of an occupier is thereby struck. An occupier, on this approach, need not be further involved itself in promoting or accommodating the interests of those seeking entry.

[emphasis added]

9    Understanding that observation, together with the contraventions found to have occurred, requires that the following provisions of the Act be set out:

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.

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.

501    Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

Note:    This section is a civil remedy provision (see Part 4-1).

502    Person must not hinder or obstruct permit holder

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(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.

10    Later judgments of the Full Court have cited Flick J’s observations in AMIEU v FWA with approval. In some instances the Full Court has discerned agreement by Tracey J with Flick J’s observations: see Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15, at [15]. In another, there has been discerned agreement also by the other judge who constituted the Court in that case, Jessup J, as well as Tracey J: see Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Cross River Rail Appeal) [2024] FCAFC 1, at [38].

11    It is not necessary today to delve into whether there is to be discerned in AMIEU v FWA agreement by each of Jessup and Tracey JJ with his Honour’s observations. It suffices, for present purposes, to recognise that Flick J’s observations have received the endorsement of successive full courts of this Court.

12    One might, with great respect, question the emphatic quality of the adjective “absolutely” employed by his Honour. That may also be nothing more than a particular way of emphasising a proposition long ago made in relation to a statutory right of entry in another Act, the then s 263 of the Income Tax Assessment Act 1936 (Cth) (1936 Act) by Mason J in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 (FCT v ANZ), at 535, where his Honour observed of that section:

It makes lawful that which otherwise would be unlawful, eg, entry upon premises, the examination of a document.

13    Flick J’s observations were preceded by a recollection by his Honour of particular rights enjoyed at common law by the occupiers of land, but his Honour’s observation, as, with respect, it had to, also recognises that those common law rights have been qualified by statute.

14    There was never any question in this case that Mr Journeaux was seeking to exercise the right conferred by s 484 of the Act. It was accepted that he was seeking to exercise that right for the statutory purposes specified in s 484. The question for determination was, therefore, whether, in the events which transpired at the security gate that day, s 501 and s 502 of the Act were contravened?

15    Teys conducted its case both, in the Circuit Court as well as on appeal in this Court, on what might be termed an “all or nothing” basis. In other words, the submission which I have recited was not said to resonate in any different way as between s 501 and s 502 of the Act. Nor, before the primary judge or on appeal, was there any exploring of the differences, if any, in terms of proscribed conduct as between s 501 and s 502 of the Act.

16    The primary judge found, at [132], that she was “satisfied that the request made of Mr Journeaux was not a reasonable request.” Her Honour found that “the respondent contravened s 501 of the Act by, effectively, refusing a permit holder entry to the premises.” As to s 502, her Honour noted a submission made by Teys, which was repeated on the appeal, that it was not “absolutely necessary” to permit Mr Journeaux to bring his mobile phone onto the site with him for holding discussions with employees. As to this submission, the primary judge stated, at [140]:

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 not prevent a union official from bringing documents onto the site, as part of a purported “proprietary 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.

17    Her Honour’s conclusion, at [141], was that Mr Platten had hindered or obstructed Mr Journeaux’s entry to the premises in prohibiting him from entering with a mobile phone. Her Honour stated:

… 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 …

18    It is clear enough also from this paragraph in her Honour’s judgment that she accepted evidence given by Mr Journeaux that the time employees had available to participate in discussions was often restricted, and that it was both difficult and impractical to be required to exit the premises to access a mobile on each occasion that was necessary.

19    In O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 (O’Reilly), the High Court had occasion to consider, materially, the meaning and effect of the then s 263 of the 1936 Act. The conclusion reached by the Court was that that section did not oblige any person to take positive steps to enable the Commissioner to more easily or effectively enjoy the statutory right of access, conferred by s 263. In relation to that subject, two separate joint judgments were delivered. The proposition which I have just voiced, as to the ratio of the s 263 part of the case (there were other issues), emerges from a statement made by Gibbs CJ, and Wilson and Dawson JJ, in their joint judgment, at 41. Also in that judgment, at 43, their Honours having referred to s 232 of the 1936 Act, which provided:

Any person who obstructs or hinders any officer acting in the discharge of his duty under this Act or the regulations shall be guilty of an offence.

Their Honours stated:

Anyone who obstructed or hindered an officer of the Commissioner who, acting in the discharge of his duty, sought to exercise the right of access conferred by s. 263 would be guilty of an offence against s. 232 of the Act. There is a difference between obstructing or hindering the Commissioner on the one hand, and merely failing to provide active assistance to him on the other. Anyone who took active steps to prevent the Commissioner from entering a building or inspecting documents will be infringing the right given to the Commissioner by s. 263 and would be at the same time guilty of an offence against s. 232. There is no reason in the light of these sections to imply that a person who fails to take active steps to assist the Commissioner to exercise the right of access is guilty of a breach of duty or an offence.

20    The other joint judgment in O’Reilly was that of Mason, Murphy, Brennan and Deane JJ. Their Honours stated, at 48:

Section 263 does not in terms refer to any person other than the Commissioner and an authorized officer. By implication, the provisions of the section affect the rights of others in that they override any rights which, but for the section, others might have had physically to obstruct the full and free access which the section provides the Commissioner and an authorised officer shall have.

I interpolate there that those observations are, with great respect, the source of my reservation as to the adjectival qualification “absolutely” found in Flick J’s judgment. However that may be, their Honours continued in O’Reilly, in their joint judgment, at 48 – 49:

There is, however, nothing in the words of the section which would, as a matter of construction, warrant the implication of a positive duty on the part of any person actively to assist the Commissioner or an authorized officer in obtaining such access. To the contrary, the words of the section are quite inappropriate to impose such a duty in that, apart from failing to mention the duty or its content, they fail to identify the range of persons upon whom such an implied duty would be imposed or the occasion on which any such duty would arise.

21    Also in this joint judgment, at 49 – 50, it was stated that the right nonetheless was not one which might be deliberately frustrated with impunity. Their Honours stated:

As has been said, the provisions of s. 263 override any rights which, but for the section, others might have physically to obstruct the Commissioner or an authorized officer from the access which the section says he shall have. More importantly, s. 232 expressly provides that any person who obstructs or hinders any officer acting in the discharge of his duty under the Act or the regulations made thereunder shall be guilty of an offence. The Commissioner or an authorized officer who seeks access to a place, document or paper pursuant to s. 263, is acting in the discharge of his duty under the Act and to obstruct or hinder him in so acting will constitute an offence under s. 232. Whether the particular conduct amounts to obstructing or hindering an officer acting in the discharge of his duty is a question of fact in the particular case. It is, however relevant to mention that conduct which is essentially negative in character may, in some circumstances, constitute such obstruction or hinderance. For example, the retention of documents, to which it was known the Commissioner sought access under s. 263, in a locked room accompanied by secretion of the key could well constitute such obstruction or hinderance for the reason that the maintenance of a state of affairs may amount to active substruction or hinderance.

[emphasis added]

22    It might be thought, flowing from the passages quoted from O’Reilly, that Teys was under no positive duty to make the right of access for the purposes specified in s 484 more meaningful or effective. In other words, insofar as there was any residual common law right enjoyed by Teys as occupier to impose conditions on entry, that was not affected by s 484 or the relative contravention provisions, s 501 and s 502.

23    A difficulty about that conception is that s 484 must necessarily be construed, not in isolation, but having regard to the objects as stated in s 480. That is not to say that s 480 is a source of any rights. It is to say is that the right which is conferred by s 484 must be construed having regard to the objects of that section.

24    Further, the purpose of the right of access, for the purpose of holding discussions, has itself to be construed, not just in light of s 480, but also in the context of a provision in an Act which makes provision for various activities which may lawfully be undertaken by a registered industrial organisation, such as the union. When Mr Journeaux sought to exercise the statutory right of access, he was doing so as a permit holder and also as someone known to be the union’s State Secretary.

25    Section 501 speaks of refusal or undue delay. Section 502 speaks of hindrance or obstruction. Neither provision is explicitly qualified such that a temporary denial of access on a reasonable ground is exculpatory. It is plain enough from the primary judge’s reasons for judgment that her Honour considered there was such a qualification. That was, in my view, in keeping with the recognition apparent in each of the joint judgments in O’Reilly that whether or not there was hindering or obstruction of a statutory right of access was ultimately a question of fact to be determined in the circumstances of the particular case.

26    As it happens, in the interval between when FCT v ANZ and O’Reilly were decided, a like question fell for determination by Helman DCJ, as his Honour then was, in the Queensland District Court on an appeal from the Magistrates Court against a conviction of a person under s 232 of the 1936 Act for obstructing officers exercising a right of access under the then s 263 of the Act. His Honour’s ultimate conclusion was that a temporary denial of access on reasonable grounds did not constitute obstruction. His Honour stated, see Scanlan v Swan (1982) 61 FLR 468 (Scanlan v Swan), at 473:

The test, albeit a negative one, which I have suggested, is contemplated by the use of the word “obstructs” in s. 232, is then one of reasonableness. The fact that a common law right is relied on may, of course, be most relevant in determining whether the person in question has acted reasonably, but I am not persuaded that the test suggested by Mr Godsall in his submission is correct. In my opinion it is not necessary, as Mr Godsall’s submission may imply, that there is evidence that a common law right was asserted before the issue I have been discussing can be said fairly to have been raised. There clearly could be denials on reasonable grounds which would not involve the assertion of a common law right …

Conversely, there could be cases where the assertion of the common law right is unreasonable and amounts to obstruction. Mr Godsall referred to Fischer v Douglas; ex parte Fischer [1978] Qd. R 27, in which it was said that the right to obtain legal advice is a common law right (per D.M. Campbell J. at p. 31 and per Hoare J. at p 32). Assuming that the right exists it is of course not an absolute right. It may be limited or abrogated by Parliament (per Hoare J.). There could be cases where the assertion of the suggested right is spurious and unreasonable and the conduct of the person asserting it is truly obstructive, just as in Fischer’s case the desire to obtain legal advice was not found to be a “reason of substantial character” for failing to provide a specimen of breath for analysis.

[emphasis added]

27    Scanlan v Swan is also noteworthy for a statement made by Helman DCJ, with which I fully concur, concerning the word “obstructs”. His Honour stated, at 472 – 473:

The word “obstructs” and cognate words appear in the Acts of various Parliaments, and as one might expect many examples may be found in the books of judicial discussion of those words. I do not propose to compile a jejune catalogue of such pronouncements because when all is said and done the conclusion that must be reached on the subject is that of Lord Upjohn in Jenkins v. Allied Ironfounders Ltd (1971) WLR 304, at p. 315: “My Lords, when considering something is an ‘obstruction’ or not, it is no use trying to define by further language what is meant by that word, for it is a word in common and everyday use in the English language and is, in my opinion, thus incapable of further definition. Everyone is agreed that some limitation must be put upon the word but that limitation is itself incapable of definition. All one can do is to suggest tests by which to measure whether something is an obstruction or not.”

28    In circumstances where persons other than union officials were, on the evidence, permitted, albeit for use in particular locales, to bring a mobile telephone onto the site, and irrespective of whatever might be carried in any event with it by s 484, the learned primary judge was, in my view, entitled to conclude on the facts, which materially include the conversation which I have recited, that Mr Journeaux was hindered or obstructed in August 2021 at Teys’ security gate. It was nothing more and nothing less than a conclusion of fact, which flowed from the endeavour, carrying an ordinary article of dress, to enter the site to exercise a particular statutory right.

29    As it happens, there were uses to which a mobile phone might usefully be put in the course of discussions. It is to be remembered that s 484 confers a right which is qualified by particular purposes. In the course of submissions, I put to counsel for Teys whether or not, in lieu of a mobile telephone, Teys might be able to refuse access on the basis of a notebook and pen being carried by the permit holder. It was put in response that such an inhibition was possible, because all that s 484 entailed was discussions, which necessarily meant oral discussions. But a moment’s reflection on the many documentary manifestations of contemporary industrial regulation – be they awards, enterprise agreements, the Act itself, other statutes, other policies – takes one to the proposition that discussions might necessarily entail reference to documents. In the digital age, a convenient repository of documents, and of accessing documents, is a mobile telephone.

30    It seems to me that the reasoning of the Full Bench of the Federal conciliation and arbitration commission, presently termed the Fair Work Commission (Industrial Commission), is not just unremarkable, but correct, in relation to the ability of a permit holder to carry with him for reference particular documentation: The Australasian Meat Industries Employees Union [2015] FWCFB 5228. It would seem to me entirely consistent with that reasoning to regard that as also applicable to documents in digital form.

31    I emphasise, however, that, though I consider s 484 does carry with it an ability to bring onto site for the purpose of discussions reference materials, the contraventions were complete, in my view, just by an unreasonable qualification which Teys sought to impose on the statutory right on the facts of this case.

32    If one looks to meanings one might give “hinder”, one finds that it can be regarded as synonymous with “obstruct”. “Impede” is also a meaning one might give. “Obstruct” can mean interrupt or render more difficult. On the facts, the conclusion reached by the primary judge that there had been a hindering or obstruction was one which fell within the terms of those words in the statute according to their ordinary meaning.

33    As to appeal ground 2, all that need be said, beyond that which I have already, is that Teys was not entitled to seek to qualify a statutory right of access other than on reasonable grounds. Reasonable grounds might have been found in a common law right, although as Helman DCJ demonstrates in Scanlan v Swan, the existence of such a right is not necessary for there to be a reasonable ground. It is just that on the facts of this case no reasonable ground existed.

34    Ground 3 is something of a mystery. The policy concerned did not relate to occupational health and safety.

35    Ground 4 raises no higher than ground 3.

36    Ground 5 is but a rehearsal of ground 2.

37    Ground 6 seems to me to depend on the Teys property rights submission. But as I have already indicated, accepting as I do that reasonable grounds could constitute a basis for exculpation, the facts of this case were such that no reasonable grounds existed.

38    Ground 7 is yet another rehearsal of the property rights argument, which I have rejected.

39    It follows from the foregoing that I see no merit in the challenge to the finding in respect of contraventions made by the primary judge.

40    As to penalty, the reasons of the primary judge reveal an acute awareness of the emphatic pronouncement by the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson) as to the purpose of a civil penalty regime being found in deterrence. Her Honour’s reasons carefully rehearse the submissions in mitigation, such as they were, as well as the union’s submissions.

41    Her Honour was entitled to find, on the evidence, that Teys’ policy had a particular resonance in relation to union officials who, as permit holders, sought to exercise a statutory right of access, which it did not have on other entrants to the site, such as workers or contractors, with respect to the carriage of a mobile telephone. That being so, her Honour was entitled to form a view that the contraventions were of a serious nature.

42    Within any judicial determination of penalty, there is a zone of discretion enjoyed by a primary judge. When all is said and done, the task of imposing a penalty comes down to “intuitive synthesis”. Also flowing from Pattinson, her Honour was entitled to, and did, take into account that the amount of a penalty should be set at such a level as to be beyond a mere cost of doing business. Teys is a large employer. It already had the experience of views expressed by a Full Bench of the Industrial Commission as to the ambit of the right of access. It seems to me that the primary judge did nothing more than reach a conclusion which, for, with respect, well-expressed reasons, was quite reasonably open in terms of penalty. My task is not to express either agreement or disagreement with the penalty imposed, only in the first instance to determine whether or not the penalty imposed was manifestly excessive.

43    The maximum penalty open can be a yardstick. In this instance, her Honour approached penalty on the basis that there had been a course of conduct such that one penalty ought to be imposed. The yardstick to which her Honour looked was evidently the $66,600. I am unable to conclude that the penalty struck by her Honour, $30,000, was an unreasonable one in the circumstances of this case, particularly taking into account the imperative of deterrence and fixing a penalty at a level beyond a cost of doing business.

44    For these reasons, the appeal will be dismissed.

Associate:    

Dated:    19 March 2024