Australasian Meat Industry Employees' Union v S&D Logistics Pty Ltd [2025] FedCFamC2G 1649

(a) whether to make a declaration of the respondent's contravention;

(b) whether to make an order imposing a penalty upon the respondent, and if so, the quantum of any such penalty; and

(c) whether an order for costs should be made in the applicant's favour pursuant to s 570 of the Act.

1. Those matters are addressed in turn below under the heading "Consideration".

1. The applicant commenced the proceeding by filing, on 22 November 2023, an originating application supported by a statement of claim. The statement of claim originally alleged contraventions of both ss 501 and 502 of the Act. The applicant amended the statement of claim in April 2024, abandoning the allegation of contravention of s 501 of the Act.
2. On 6 March 2025, the applicant filed the FASOC.
3. On 17 March 2025, the respondent filed a defence to the FASOC (the defence), indicating its admission of the alleged contravention of s 502 of the Act but opposing two of the orders sought therein, being orders for the imposition of a civil penalty and for costs. The opposition to the penalty seemed formal only, in that the respondent did not seriously advance any argument that the Court should decline to impose a penalty. The respondent indicated that it did not object to the third order sought by the applicant, namely, an order that any pecuniary penalty imposed upon the respondent be paid to the applicant.
4. The matter was heard on 29 April 2025 (the hearing).
5. The parties agreed to a number of facts pursuant to s 191 of the Evidence Act 1995 (Cth) (Evidence Act). Those facts were contained in a "Statement of Agreed Facts and Issues" dated 25 March 2025 which was contained in the court book prepared by the parties. As that document had not been signed by the parties as contemplated in s 191(3)(a) of the Evidence Act, the Court gave leave, pursuant to s 191(3)(b) of the Evidence Act to the statement of the agreed facts contained therein.
6. At the hearing, the applicant read and relied on the following evidence:

(1) Affidavit of Jason Schultz affirmed on 22 August 2024. Mr Schultz's affidavit recited the events of 20 October 2023; and

(2) Affidavit of Diana Sully sworn on 21 August 2024.

1. Neither witness was required for cross-examination by the respondent.
2. The respondent read and relied on the following evidence:

(1) Affidavit of Benjamin Wade affirmed on 25 October 2024, and exhibit BW-1 to that affidavit;

(2) Affidavit of Benjamin Wade affirmed on 11 April 2025;

(3) Affidavit of Isabella Rose Panzarino affirmed on 11 April 2025; and

(4) Affidavit of Stephen Donaldson affirmed on 11 April 2025.

1. The applicant cross-examined Mr Donaldson, a director and holder of a half share of the respondent company (Mr Donaldson's wife, Dawn, owned the other half). Mr Donaldson was involved in the respondent company's management. The applicant also cross-examined Mr Wade, the general manager of the respondent.
2. Although Mr Wade presented as reliable, Mr Donaldson did not impress as a witness.
3. In Mr Donaldson's evidence he appeared to lack recall or knowledge of matters when confronted with difficult questions, such as when he was asked to explain the respondent's denial by its earlier defence of any intent to hinder or obstruct the union, or when he was asked whether he had had discussions with Mr Schultz about the meal room. At one point, Mr Donaldson proffered a diagnosis of early dementia as a possible explanation for his lack of recall. It is difficult to reconcile that claim with his continuing role in the respondent's facility and the choice by the respondent to call him as one of its witnesses at the penalty stage. Mr Donaldson's lack of recall on matters that reflected unfavourably upon the respondent, contrasted with his recalling and volunteering the detail of other matters, ostensibly favourable to the respondent, when it appeared that he had been caught in an inconsistency. For example, although Mr Donaldson initially denied having recall of any discussion with Mr Schultz about the lunchroom, he later volunteered that Mr Schultz had threatened to go to the lunchroom regardless of the direction Mr Donaldson had given him not to do so. The claim that Mr Schultz made such a threat had not been put to Mr Schultz in cross-examination and is in stark contrast to the terms of Mr Schultz's emails on the day, which threaten legal action, not defiance. Mr Donaldson also volunteered in cross-examination that he had been given advice by a solicitor (who was not identified) to threaten to call the police. That was not supported by any record of the advice, nor did that claim feature in the respondent's affidavit evidence when, if such advice had been given, it may well have sounded in mitigation of the contravention.
4. Mr Donaldson also made the following statement in his affidavit:

I acknowledge that it was inappropriate to allow the Applicant access solely to the smoking area, and not the lunchroom, on 20 October 2023.

1. I asked Mr Donaldson to explain what he meant by "inappropriate", expecting that, as the respondent's directing mind, he would explain the respondent's view of its contravening conduct and may thereby demonstrate any contrition or remorse. He replied, after what appeared to be a puzzled look at the affidavit: "I don't know". Whatever had led to the inclusion of that phrase at the time of averring the affidavit, it eluded Mr Donaldson at the hearing. He made no attempt to extemporise an explanation about what he had regarded as wrong about the contravening conduct in which he had been the principal protagonist. I could give that language no meaning in the circumstances.
2. After he was excused from the witness box, Mr Donaldson stood up and paused before returning to his seat in the body of the Court and announced that this was the first time in 72 years that he had been in a witness box, and it had been good. He gave the impression that he had found the entire exercise amusing.
3. The latter two events gave the impression that Mr Donaldson did not regard the contravening conduct, or the fact that the respondent was before the Court to have a penalty imposed upon it for that conduct, as at all troubling. Despite expressing, in his affidavit "sincere regret for the circumstances that gave rise to the initiation of the proceedings", he gave no indication of any remorse, contrition or even concern about the contravening conduct. He presented as unbothered by the conduct and its consequences.

1. The Act imposes a requirement that a person must not intentionally hinder or obstruct a permit holder from exercising rights conferred upon them by the Act. Section 502 of the Act relevantly provides:

502 Person must not hinder or obstruct permit holder etc.

(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part, or otherwise act in an improper manner.

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 conduct referred to in subsection (1).

(3) Without limiting subsection (1), that subsection extends to conduct that occurs after an entry notice is given but before a permit holder enters premises.

1. The term 'permit holder' is defined in s 12 of the Act as a person who holds an entry permit. There was no dispute that Mr Schultz was a permit holder within the meaning of the Act, and that the respondent had, through its agents, refused Mr Schultz access to the respondent's lunchroom thereby contravening s 502 of the Act, the circumstances of which will be discussed below.
2. Section 502 of the Act is a civil remedy provision, and the Court may order a person to pay a pecuniary penalty if satisfied the person has contravened that section. There was no dispute that the applicant had the standing to bring its application for such orders.
3. Section 546 of the Act empowers the Court to make orders for the payment of a pecuniary penalty where satisfied as to the contravention of a civil remedy provision. It provides:

(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note 1: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).

Determining amount of pecuniary penalty

(2) Subject to this section, the pecuniary penalty must not be more than:

(a) if the person is an individual--the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b) if the person is a body corporate--5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

(2A) Despite paragraph (2)(b) and subsection (2AA), if:

(a) the civil remedy provision is a selected civil remedy provision; and

(b) the person is a body corporate; and

(c) when the application for the order is made, the person is not a small business employer; and

(d) the contravention is associated with an underpayment amount; and

(e) the application specifies that the applicant wants the maximum penalty to be calculated based on a multiple of the underpayment amount; and

(f) the person is not taken to have contravened the civil remedy provision under section 550 (person involved in a contravention);

the pecuniary penalty must not be more than the greater of the following:

(g) the amount worked out in accordance with subsection (2AA);

(h) 3 times the underpayment amount.

Note: For when contravention of a civil remedy provision is associated with an underpayment amount, see section 546A.

(a) the civil remedy provision is a selected civil remedy provision; and

(b) the person is a body corporate; and

(c) when the application for the order is made, the person is not a small business employer;

the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).

Payment of penalty

(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

(c) a particular person.

Recovery of penalty

(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

1. The applicant is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). It is entitled to represent the industrial interests of persons who work at the facility. It has members who are employed by the respondent at the facility.
2. The applicant's organisers had entered the facility on occasion since around 2019. Mr Donaldson agreed that the union was a frequent visitor to the site. Mr Wade gave evidence of numerous entries by the union over that period.
3. Mr Schultz was (and remains) the holder of a right of entry permit issued pursuant to s 512 of the Act (the permit holder). As such, he was entitled pursuant to s 484 of the Act to enter the premises of an employer to hold discussions with employees whose industrial interests the union was entitled to represent. Section 487 of the Act requires permit holders to give a written notice of their intention to exercise such powers to enter premises at least 24 hours before such an entry.
4. It was an agreed fact that:

Access to both the Respondent's lunchroom and smoking area (another location where the Respondent's employees typically take their lunch breaks) had been granted to the Applicant on numerous occasions both prior to and following the contravention on 20 October 2023.

1. The respondent is a family-owned company which carries on the business of refrigeration, warehousing, storage and handling of cold goods at the facility. Mr Donaldson and his wife, Mrs Donaldson, are the owners of the company.
2. The facility is on a site of some 17,115 square metres of land, irregularly shaped, on which are situated five buildings including two warehouses, each with five loading docks, and an office building. A demountable building serves as an area for staff to clock in and out.
3. From the plan of the premises which was tendered into evidence, it appears that the two warehouses are about 96 metres long and 53 metres long respectively. They contain a number of freezer areas, as well as a chiller space, and an ambient space. They are located on opposite sides of an open area (presumably a concrete apron) adjacent to the street entry to the site which permits vehicle access to the loading docks. The five loading docks of each warehouse face onto that open area. The open area includes marked zones for pedestrian access.
4. The respondent stores both raw materials and processed food products at the facility, including fruit, vegetables, poultry, meat, and seafood.
5. The main office and a "smoko" area (also referred to as the smoking area) are situated at the front of the premises, that is, near the boundary of the premises fronting onto the street where there is a vehicle entry. About 35 out of 55 employees of the respondent regularly had their break in the smoking area.
6. The lunchroom used by the workers is located against the rear wall of the premises, at the rear of the smaller of the two warehouses.
7. The respondent is subject to biosecurity restrictions in the operation of its business. Those restrictions prevent unauthorised access to goods subject to biosecurity control. The respondent contends that access to the lunchroom may only be obtained by walking through various docks and dock staging areas of one of the warehouses the subject of biosecurity control. Mr Donaldson's evidence was that the respondent, to ensure its compliance with those requirements, would accompany any visitor who went onto the site.

1. Some of the relevant industrial history of the site as at the date of the contravention appears in the decision of the Fair Work Commission dated 24 January 2024: Re S & D Logistics Pty Ltd [2024] FWC 203 (the first FWC decision), which was annexed to Mr Schultz's affidavit. In that decision, Deputy President Slevin was dealing with an application by the respondent for approval of an enterprise agreement that was made, that is, voted upon, on 21 October 2023, the day after the alleged contravention. The union disputed that the requirements for approval had been satisfied.
2. The history set out in the first FWC decision includes that in March 2023, the respondent agreed to bargain with the union for a proposed enterprise agreement, giving the employees the required notice of their rights in that process. Between March 2023 and 17 July 2023, the union and the respondent met four times, with the union contending that on the latter date an in-principle agreement had been reached.
3. Mr Schultz's affidavit annexes an email to him dated 28 August 2023 from Mrs Donaldson, who is described in her email signature as "Managing Director". That email bears the subject heading "enterprise bargaining" and refers to a "current document" which is shortly to be provided to the union. Mrs Donaldson goes on to say in that email that "there has been a concern raised within members of the board that the current in-principle agreement would put S & D in a position that is not sustainable moving forward". Mrs Donaldson then refers to the need to find alternative representation and advises "we have all intention of continuing to negotiate the agreement in good faith".
4. The FWC decision recites (at [8]) that in correspondence sent in early September 2023, the respondent's solicitor, in contrast with Mrs Donaldson's email above, denied that any in-principle agreement had been reached. That claim was contested, and the union made an application to the Fair Work Commission for it to deal with a bargaining dispute pursuant to s 240 of the Act. On 28 September 2023, the union made an application to the Fair Work Commission pursuant to s 448 of the Act for a protected action ballot order, that is, for the holding of a ballot of its members to authorise the taking of protected industrial action in support of claims made in the course of enterprise bargaining. An order was issued on 3 October 2023, with the ballot to take place in November 2023.
5. On 6 October 2023, the respondent circulated to employees its proposed agreement. However, the respondent did not advise employees of the day, time, and method by which the agreement would be voted on at that time. On 10 October 2023, the union lodged an application with the Fair Work Commission pursuant to s 240 of the Act. Although Mr Schultz's affidavit refers to this date as 10 October 2024, I infer that the reference to the year is a typographical error. Mr Schultz' affidavit was made on 22 August 2024.
6. The respondent did not give employees notification of the date, time, and method the ballot was to occur until 20 October 2023. It told employees the ballot was to occur the following day on 21 October 2023. The Deputy President found that the respondent had, by giving notice of the time and place of the vote and the voting method on the day prior to the vote, failed to comply with the requirement in s 180(3) of the Act. He concluded that the agreement was not genuinely made within the meaning of s 188(1) of the Act.
7. The Deputy President did not regard the failure to notify employees of the time and place of the vote and the voting method by the start of the "access period" (or the period of seven days prior to the vote) as a minor or technical failure. The Deputy President observed at [39] - [40] of the decision that:

...It was instead a significant error that deprived the employees an opportunity to properly participate in the vote. As the Full Bench in McColl's Operations Pty Ltd v Transport Workers' Union of Australia observed, participation in the voting process contemplated by the Act involves more than simply casting a vote. Employees may, for example, confer amongst themselves and influence each other's views. By being denied time to engage in such activity the employees were unable to fully participate in the vote.

Further, employees may also wish to consult their union...

1. That history of the events leading up to the time of the contravention, and the Deputy President's observation about the significance of employee interaction at that time in the enterprise bargaining process, informs the Court's view of the character and seriousness of the contravention.
2. Mr Donaldson accepted in cross-examination that at the time of the contravention the union was a frequent visitor to the site, that he was aware the union opposed the respondent's (proposed) agreement, that he did not want the union encouraging the workers to reject the proposed agreement, and that he sought to limit the union's access to workers to limit its capacity to campaign against the agreement.
3. Mr Donaldson accepted that after 20 October 2023, he had allowed the union to access the lunchroom. He also accepted that if Mr Schultz was accompanied to the lunchroom that would not involve any contravention of the site's traffic management plan, nor would it require Mr Schultz to traverse any biohazard or controlled areas. Those concessions meant that there was no legitimate reason based in any safety concern for denying Mr Schultz access to the lunchroom on 20 October 2023.
4. Mr Donaldson claimed that he did not know the vote on the enterprise agreement was to occur the following day (that is, on 21 October 2023). I do not accept that evidence. Mr Donaldson was an owner and director of the respondent and engaged with Mr Schultz on behalf of the respondent on 20 October 2023. He took the action that is central to the contravention, namely, denying Mr Schultz access to the meal room. He took the lead on behalf of S & D in dealing with the union on 20 October 2023. I do not accept that he was unaware of something as significant as the date for a vote on an enterprise agreement the respondent was proposing. I do not accept, where the vote on the enterprise agreement occurred on 21 October 2023, that such vote was not already within the knowledge of Mr Donaldson as at 20 October 2023, even if (as the FWC decision records) notice of that vote was only given to employees on 20 October 2023. The FWC decision refers to a letter from "CiVS" (an independent voting service engaged to conduct the ballot) dated 18 October 2023 referring to the time and date of the vote, and giving instructions concerning voting on the proposed agreement, which letter was sent to employees under cover of a letter from the respondent dated 20 October 2023. Even if there was some doubt as to whether the respondent would proceed with a vote on 21 October 2023, the prospect that it would be conducted on that day must have been firmly in Mr Donaldson's sights on 20 October 2023. S & D had circulated the proposed agreement and a ballot was in prospect in the short term.

1. On 18 October 2023, Mr Schultz caused an entry notice to be sent to the respondent by email, advising of his intention to enter the facility premises on 20 October 2023. The email referred to s 484 of the Act, which permitted Mr Schultz to enter the site to hold discussions with employees. The impetus for Mr Schultz's visit was that he did not want workers to vote in favour of the enterprise agreement that had been proposed by the respondent, which he considered offered significantly worse terms and conditions than the in-principle agreement reached in July 2023. Mr Schultz wanted to hold discussions with members and potential members of the union about the proposed enterprise agreement and to provide them with information about the proposed agreement from the union's perspective.
2. Mr Schultz attended the premises on the date specified in the entry notice, being 20 October 2023, arriving at about 9:00am.
3. Mr Clark, another representative of the union who had visited the site prior to 20 October 2023, had already arrived at the site. He was in the smoko area when Mr Wade, the General Manager, arrived at 7:44am. Shortly after he arrived, Mr Clark raised with Mr Wade the union's desire to go to the lunchroom. Mr Wade responded that he would need to be accompanied by a manager. When Mr Clark raised the issue again, Mr Wade said that he would speak to the owners. Mr Wade then spoke with Mr and Mrs Donaldson as they were on their way to the facility and told them that the union wished to access the lunchroom.
4. Mr Donaldson accepted in cross-examination that in that conversation, Mr Wade did not tell him that the union had agreed to stay in the smoko area.
5. Mr Schultz's evidence about what then occurred was not challenged by any cross-examination.
6. Mr Schultz said he arrived at the premises at 9:00am (although Mr Wade referred to a record of Mr Schultz signing in to the premises at 8:22am). Mr Schultz asked to speak with Mr Donaldson. While Mr Schultz was waiting, Mr Clark (who had arrived earlier) joined him and advised that he had been refused permission by Mr Wade to go to the other meal room. That refusal does not form a part of the admitted contravention.
7. When Mr Donaldson arrived (at about 9:10am), Mr Schultz asked Mr Donaldson about the meal room "up the back" and asked for access to that room. Mr Donaldson told Mr Schultz that there was such a room, and that the workers had their breaks and meals in the room, but that Mr Schultz would not be permitted to go there. Mr Schultz asserted that he had a right to go there (that is, to the meal room up the back) and asked Mr Donaldson whether he understood that he (Mr Schultz) would "file now for a contravention". Mr Donaldson maintained that Mr Schultz would only have access to the smoking area at the front of the premises and did not resile from that position. When Mr Schultz' account of that conversation was put to Mr Donaldson, he said that he did not recall the conversation. When that answer was challenged, Mr Donaldson said that he had been diagnosed with early-stage dementia. Mr Donaldson's lack of recall of the conversation does not cause me to doubt Mr Schultz' evidence.
8. Mr Schultz remained on the premises. After seeking advice from the union's legal officer, at 10:37am he sent Mr Donaldson, Mrs Donaldson, and Mr Wade an email which drew their attention to s 492 of the Act, and in particular to s 492(3) of the Act. That subsection, as Mr Schultz correctly observed in his email, applies where there is no agreement on the room or area in which the discussions will be held. It provides as follows:

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

1. In the email, Mr Schultz recited his discussion with Mr Donaldson (at about 9:00am, which is set out above) and advised that Mr Donaldson's behaviour was in contravention of the right of entry provisions in the Act, and that Mr Donaldson had hindered or obstructed a permit holder from exercising rights. Mr Schultz sought that the situation be "corrected immediately by allowing permit holders to exercise their right to hold discussions in areas that are allowed under the Fair Work Act". Mr Schultz conveyed his expectation that he would be permitted to access such area within 10 minutes of receipt of the email. He advised that the company and a person "can be liable in any proceedings".
2. Although the email referred to "permit holders" (plural) the facts the subject of the present matter concern only Mr Schultz.
3. At 11:05am, Mr Donaldson approached Mr Schultz and yelled:

"I've just been instructed if you go anywhere else, I'm calling the police and marching you off the premises ok, and that will go into the Commission."

1. Mr Donaldson then had an exchange with the workplace delegate of the applicant, before a further exchange in which Mr Schultz asked again if Mr Donaldson was refusing Mr Schultz permission to go to the meal room. Mr Donaldson argued that "this is the area where he has always been". I infer that the Mr Donaldson was referring to another officer of the union with whom he was familiar who had previously attended the site. Mr Schultz persisted, arguing that the other room was a meal room and calling in aid the legislation. In reply, Mr Schultz claims Mr Donaldson said:

"I don't give a shit about the legislation. Take it up with the Commission...if you move, I will call the police".

1. Mr Schultz had a further discussion with the union's legal officer following which he sent an email to Mr Donaldson, Mrs Donaldson, and Mr Wade at 12:28pm, in which he alleged that Mr Donaldson's conduct was "threatening behaviour and continued contravention of s 502 of the Act." He recited Mr Donaldson's threat to call the police, and alleged that Mr Donaldson said: "I don't care about the legislation, and take me to court".
2. Mr Schultz' email recites Mr Donaldson's parting words in slightly different language than the account of that exchange in the body of his affidavit. Nothing of significance, either to Mr Schultz's credit, nor as to the character of Mr Donaldson's conduct, flows from the slight difference in accounts. Mr Donaldson was, on either account, neither of which were challenged, firmly disavowing any concern about the operation of the legislation in the circumstances and suggesting that Mr Schultz take up any issue he had regarding his lack of access to the meal room with another authority.
3. The email further characterises Mr Donaldson's behaviour as threatening, unacceptable, and deliberate.
4. Mr Schultz left the site after sending the latter email.

(1) whether the Court should make a declaration of the contravention;

(2) the appropriate penalty (if any) in respect of the respondent's contravention of s 502 of the Act; and

(3) whether any order for costs should be made in the applicant's favour.

1. The applicant asks the Court to make a declaration in the following terms:

The respondent contravened section 502 of the Fair Work Act 2009 (Cth) at 7 Steel Street, Blacktown, New South Wales on 20 October 2023 in intentionally hindering or obstructing a permit holder exercising powers under Part 3 - 4 of the Fair Work Act 2009 (Cth) in:

1. refusing permission to the Permit holder to enter the lunchroom of the Respondent; and
2. telling the Permit holder that if he was to move anywhere that the police will be called.

1. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113, the Full Court of the Federal Court of Australia said (at [92] - [93]):

The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 437-438 (per Gibbs J, citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448); Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 (per Sheppard J). Before making a declaration, the Court should be satisfied that the question is real, not hypothetical or theoretical, that the applicant has a real interest in raising the issue, and that there is a proper contradictor: Forster at 437-438.

Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court's disapproval of the contravening conduct, vindicate the regulator's claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140 at [6], and the cases there cited; Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [95].

1. There is no contest that the Court has the power to make a declaration about the contravention. This Court has the same power as the Federal Court of Australia to make binding declarations of right, and s 545 of the Act empowers the Court to make any order it considered appropriate if satisfied that a person has contravened a civil remedy provision.
2. It is appropriate to make such a declaration here. The respondent has admitted contravening a civil remedy provision. Declaring such contravention will serve to record the Court's disapproval of the respondent's contravention and, it is hoped, will act to deter others from contravening like provisions.
3. The respondent has not advanced any argument as to why, in the present circumstances it would not be appropriate to make such a declaration, nor has it made any submission about the terms of the declaration sought.
4. The declaration sought will differ in one respect from that sought by the applicant. The declaration sought refers to Mr Donaldson's threat to call the police if Mr Schultz moved (from where he was near the smoking area) as conduct constituting the contravention. Whilst the fact of the threat is admitted by the respondent, at [31] of the FASOC, the applicant pleads that the respondent intentionally hindered or obstructed Mr Schultz in contravention of s 502 of the Act "in refusing access to the lunch room at paragraphs 6 to 30 above". I will not include the second sub-paragraph of the declaration sought.

1. For reasons which become apparent, it is not appropriate in the present matter to decline to impose any penalty upon the respondent. The contravening conduct was deliberate. It should have been apparent that the respondent's conduct was both inconsistent with the rights of Mr Schultz and the union's rights under the Act, and that the contravening conduct was likely to have an adverse impact on the applicant union's legitimate interest in engaging with members and prospective members at a critical point in the enterprise bargaining.
2. The maximum penalty for the contravention of s 502 of the Act is 60 penalty units for an individual, and five times that amount for a corporation (Act ss 539, 546(2)(b)). As at the date of the contravention, the value of a penalty unit, as defined by s 4AA of the Crimes Act 1914 (Cth), was $313. Accordingly, the maximum penalty capable of being imposed for a contravention of a civil remedy provision by a body corporate is $93,900.00. The parties were not in dispute about that amount at hearing.
3. The primary, if not exclusive, objective of imposing a civil penalty for contravention of a civil remedy provision in the Act is the promotion of the public interest in compliance by discouraging, or deterring, future contraventions of the Act of a like kind, both by the instant contravener and by others: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 at [9]) (Pattinson).
4. Whilst the Court in Pattinson eschewed the principle of proportionality, that is, the necessity for the penalty to be proportionate to the objective seriousness of the particular contravention (at [10]), there must nonetheless be 'some reasonable relationship between the theoretical maximum and the final penalty imposed.' For the purposes of s 546 of the Act, a penalty will be appropriately directed to achieve its deterrent effect where the quantum of such penalty is no more than that which is reasonably necessary to deter future contraventions of a similar nature (Pattinson at [10]).
5. Answering the question whether a penalty will be appropriate to achieve its desired deterrent effect will require the Court to consider many factors. The circumstances of the contravener and the circumstances of the contravention itself are both relevant in the assessment of an appropriate penalty (Pattinson at [57]). A greater penalty may be required to achieve deter against a well-resourced contravener than would achieve the same effect against a poorly resourced contravener. A penalty should not be so low as to be capable of being regarded by the contravener as the mere cost of doing business (Pattinson at [17]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62]). Equally, the penalty should not be so great as to be of oppressive severity.
6. The determination of the quantum of the pecuniary penalty to be imposed, with reference to the maximum penalty threshold, calls for the Court to give careful consideration to the circumstances of the case before it. In Trade Practices Commission v CSR Ltd [1990] FCA 521, French J (as his Honour then was) set out a list of factors which may inform the Court's assessment of the quantum of penalty. His Honour said at [42]:

The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

1. The nature and extent of the contravening conduct.

2. The amount of loss or damage caused.

3. The circumstances in which the conduct took place.

4. The size of the contravening company.

1. The degree of power it has, as evidenced by its market share and ease of entry into the market.
2. The deliberateness of the contravention and the period over which it extended.
3. Whether the contravention arose out of the conduct of senior management or at a lower level.
4. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
5. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

1. Whilst some of the above considerations are more apposite to competition law matters, and the above is not to be regarded as a rigid or exhaustive checklist, the factors identified by French J have been often cited with approval as a useful guide, including in Pattinson. They do not confine the matters that may be considered by the Court and their relevance falls to be determined having regard to the facts. As the parties have advanced submissions addressing many of the factors, it is convenient to consider them in that fashion.

The nature and extent of the contravening conduct and the circumstances in which it occurred

1. The respondent contravened a provision which is designed to support the exercise by permit holders of their rights under pt 3-4 of the Act.
2. The object of pt 3-4, as set out in s 480 of the Act, is:

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.

1. Part 3-4 of the Act recognises the right of employee organisations to represent their members in the workplace and hold discussions with potential members and the right of employees to receive information and representation from officials of organisations. Those were the rights sought to be exercised on the day of the contravention by the entry of Mr Schultz onto the premises in accordance with the notice he gave to the respondent.
2. The respondent's contravention of s 502 of the Act encroached upon those rights. It was particularly serious as it occurred in circumstances where there had been enterprise bargaining at the site, and the respondent had circulated a proposed agreement to be put to a ballot of employees, which proposed agreement was voted upon the following day.
3. The conduct persisted in the face of a clear communication from Mr Schultz identifying the basis for his asserted right. The contravening conduct was supported by a threat to the permit holder that the respondent would call the police. Whilst Mr Donaldson claimed in cross-examination that he had been told by a solicitor to make that threat, I do not accept that evidence. That claim was made at the heel of the hunt; there was no reference in the affidavit evidence relied upon by the respondent or in its submissions that it had taken the contravening action on 20 October 2023 in reliance upon legal advice given on that day. Had such advice been given, it might have provided some basis to mitigate contravening conduct and would be expected to feature in a contravener's evidence and submissions on penalty.
4. The respondent sought to mitigate the conduct in three ways.
5. The respondent pointed to the union having met on previous occasions with employees in the smoko area and not had any problems about doing so. It also points to the fact that on the morning of 20 October 2023, Mr Clark had arrived at site and indicated that he was conducting meetings as usual in the smoko area. The latter argument has limited force. In Mr Wade's first affidavit he recounts that shortly after his arrival at work on 20 October 2023, Mr Clark raised with him the issue of having access to the lunchroom, and after being told that may be difficult to accommodate, Mr Clark pressed the request.
6. It is relevant that the respondent did not refuse altogether to admit the union to the site or deny it the capacity to meet with employees at all. However, it is also plain from the evidence that the issue of meeting with employees at the lunch room, which was a default location contemplated by s 492(3) of the Act was raised early in the day on 20 October 2023, first by Mr Clark, and then by Mr Schultz when he spoke with Mr Donaldson at about 9:00am. The respondent's claim that it had understood, albeit mistakenly, that there was an agreement to hold discussions in the smoko area cannot be accepted.
7. The further issue raised by the respondent is that the lunch room was located adjacent to a warehouse area subject to biosecurity restrictions and required Mr Schultz to be accompanied to and in the lunch room in order to comply with the traffic management plan in accordance with the respondent's protocols regarding biosecurity.
8. The respondent's warehouses were subject to biosecurity controls under the Biosecurity Act 2015 (NSW), the Export Control Act 2020 (Cth), and the Import Food Control Act 1992 (Cth). The respondent is accredited under these laws which require it to have in place processes to maintain biosecurity and ensure public health, including by preventing unauthorised access to goods subject to biosecurity control. The respondent also has a traffic management plan to prevent unauthorised access to goods subject to biosecurity control and to eliminate or minimise, so far as reasonably practicable, the risk of people being struck by vehicles in the loading dock area.
9. The respondent contends that because Mr Wade was the only manager present on the day and had to attend to other duties, he was unable to accompany Mr Schultz to the lunchroom because he had responsibility for the overall site operations. That argument must be rejected. Mr Donaldson was at the site from about the time Mr Schultz arrived, or shortly thereafter. Mr Donaldson admitted, in cross-examination, that he could have provided the brief induction required by Mr Schultz to transit through the site, and accompanied him to the lunchroom. Mr Donaldson said that he had a teleconference to attend to. However, that duty was not referred to in Mr Donaldson's affidavit, nor did he elaborate on his other duties in any attempt to ameliorate any of the period of the contravening conduct on 20 October 2023. Whatever his other duties were, they did not prevent him emerging from his office and engaging with Mr Schultz during the course of the morning.
10. Mrs Donaldson was also at the site that day and is described in her email footer as "Managing Director". When it was put to Mr Donaldson that she could have provided the relevant induction and escorted Mr Schultz to the lunchroom, Mr Donaldson did not deny her having the capacity to do so but instead responded that Mrs Donaldson did not get involved in "operational matters", a term which is not apt to describe a managing director accompanying a union official across a site to a lunchroom. In Mr Wade's affidavit of 11 April 2025, he describes both Mr Donaldson and Mrs Donaldson as managers capable of accommodating a request by the union for entry onto the premises, and he accepted in cross-examination that both Mr and Mrs Donaldson could have accompanied Mr Schultz on the day, subject to whatever else they had to do. Neither the biosecurity, export control, and traffic management requirements at the site, nor any shortage of managerial personnel on the day provides an explanation that mitigates the critical contravening conduct of the day, which was that of Mr Donaldson in relation to Mr Schultz's requests. Rather, I am satisfied that Mr Donaldson's conduct (the contravening conduct of the respondent) was motivated by his desire to impede the union in its campaign against the proposed agreement by preventing the union from meeting with a significant portion of the workforce on the day before the ballot.

1. Whilst there is no evidence of any financial loss or damage suffered by Mr Schultz, the union, or the respondent's employees as a consequence of the contravention, it does not follow that the contravention had no consequences.
2. As Colvin J observed in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803 at [20]:

...s 501 and s 502 provide very significant protections for the lawful rights of access conferred by the Fair Work Act. Although, in the present case, the consequences of the conduct did not manifest in loss or damage that was readily quantifiable, there were material consequences. The interests of the Union and its members are advanced by the activities of officials. In the present case, the refusal of entry meant that the efforts of the official were frustrated and, it may be inferred, other steps were required with the likely consequence that efforts to pursue bargaining for improved conditions were delayed.

1. Those observations are applicable here, and in some respects are of greater import here, where the contravention occurred at a critical time in enterprise bargaining, where the agreement that had been proposed was voted upon the following day. By the same token, the union was prevented altogether from accessing the site or speaking with employees. Rather, it was effectively prevented from speaking with those employees who took their meals in the lunch room at the rear of the site, likely about 20 of the 55 employees at the site.
2. Further, Mr Schultz remained at the site for in excess of three hours attempting to persuade Mr Donaldson to permit him to exercise his rights. That is, the time of a senior official of the union was wasted in an attempt to vindicate the union's rights, rather than in exercising those rights or engaging in some other useful activity.

1. The union submits the company is not a small company. I accept that submission.
2. The respondent did not put any evidence before the Court as to the size of its operation, other than its evidence about the size of the site (some 17,000 square metres) and the number of its employees (with Mr Wade stating that there were 55 employees). It did not put on any evidence of its turnover or profit, nor did it make any submission about the relevance of its size to the question of penalty.

The deliberateness of the contravention and the time over which it extended

1. The union contends that the conduct of the respondent was deliberate, relying on the agreed fact that:

Access to both the Respondent's lunchroom and smoking area (another location where the Respondent's employees typically take their lunch breaks) had been granted to the Applicant on numerous occasions both prior to and following the contravention on 20 October 2023.

1. The applicant contends that the only inference that can be drawn is that the respondent deliberately hindered or obstructed Mr Schultz on 20 October 2023. Given the above admission by the respondent, it is difficult to resist that conclusion.
2. The respondent contends the conduct was not deliberate as Mr Donaldson did not know that what he was doing was unlawful.
3. The conduct of Mr Donaldson on 20 October 2023 was not inadvertent or accidental. Mr Donaldson took a position on the applicant's request just after 9:00am and maintained that position thereafter. Although he claimed in cross-examination to have received advice to call the police, that evidence did not feature in the respondent's affidavit evidence.
4. At the very least, Mr Donaldson's conduct was reckless as to whether it was lawful or not. Mr Schultz's email of 10:37am referred to s 492 of the Act and the fact that s 492(3) of the Act applies where there is no agreement as to the room or area for discussions with employees. It identified that in the absence of an agreement, the permit holder may hold their discussions in any room where the employees who may participate in the discussions ordinarily take meal or other breaks that is provided by the employer to take meal or other breaks. Mr Schultz's unchallenged evidence, set out above, was that Mr Donaldson admitted, in their discussion at about 9:00am, that the lunch room at the rear of the premises was such a room. Mr Schultz's email also asserted that Mr Donaldson's conduct was in contravention of the Act.
5. It should have been apparent to Mr Donaldson in the circumstances that by persisting with the approach he had taken in his initial exchange with Mr Schultz, he risked contravening the Act. The respondent's previous record of entry onto the site by the union suggests the respondent had a degree of familiarity with its obligations under pt 3-4 of the Act, and had accepted previously that the lunchroom was a location where discussions could be held.
6. Given the timing of the conduct in relation to the ballot on the enterprise agreement (which occurred the following day), Mr Donaldson's statement on the day that he did not care about the legislation, and his admission in cross-examination that he did not want the union to encourage workers to vote against the proposed agreement, I am satisfied that Mr Donaldson engaged in the conduct, reckless as to the prospect of contravening in order to blunt the union's capacity to campaign against the proposed agreement at a critical time.

Whether the contravention arose out of the conduct of senior management

1. The conduct of Mr Wade in the present matter occurred before the relevantly contravening conduct, which occurred in respect of Mr Schultz. Mr Wade discussed the union's request with Mr Clark and escalated the question of lunchroom access to Mr Donaldson. As between Mr Wade and Mr Clark there seemed to be an accord that their respective superiors would deal with the resolution of the issue.
2. The contravening conduct was entirely that of Mr Donaldson. He was a director and shareholder. Although Mr Donaldson was not described in his affidavit as a manager, on 20 October 2023, Mr Wade's conduct indicated that he regarded Mr and Mrs Donaldson as having ultimate authority in the company. Mr Wade's evidence was that he told Mr Clark in discussions early in the day that he would call "the owners" to see if permission would be given to the union to access the lunchroom. That step indicated that it was Mr and Mrs Donaldson exercising ultimate authority on industrial relations matters on the site. Mr Donaldson conducted himself as a person who had such authority, suggesting that he was the most senior manager in substance, or one of the two most senior managers, along with Mrs Donaldson. The contravention therefore arose at the most senior level in the company.

Whether the contravener has a corporate culture conducive to compliance

1. Relevant to this consideration, the applicant contends that it is not aware of the respondent having a corporate culture conducive to compliance with the Act.
2. That submission is belied by the uncontradicted evidence of Mr Wade of the union's representatives exercising rights of entry on numerous occasions since December 2021, including following the contravention. That co-operation over an extended period suggests the respondent was aware of its obligations and co-operated with the union in facilitating the exercise by the union of its rights. The respondent has also, since the contravention, given the applicant access to the lunchroom, and says that it will continue to do so.
3. The applicant contends there is other evidence of the respondent's poor compliance with the Act, namely:

(1) The respondent's failure, recorded in the first FWC decision, to have given the employees the seven days' notice required by s 180(3) of the Act, of the vote upon the respondent's proposed enterprise agreement; and

(2) The respondent's failures as found by the Fair Work Commission constituted by Commissioner Wilson in Re S & D Logistics Pty Ltd [2024] FWC 2056 (the second FWC decision). The Fair Work Commission there dealt with a further proposed enterprise agreement that had been put to a ballot of the employees. The Fair Work Commission found deficiencies in the steps taken by the respondent to explain the terms of the agreement to employees. However, the Fair Work Commission concluded that in some respects the failures could be remedied by the exercise of discretion to disregard minor procedural or technical errors, and in others, may have been capable of being remedied by the giving of undertakings.

1. Both the circumstances of the present matter, and those addressed in the first FWC decision are closely connected. Neither reflect favourably on the respondent. However, it cannot be said there is anything generalised about the respondent's non-compliance with the requirements of the Act. Rather, the respondent's desire to have its own proposed enterprise agreement approved was given priority over the need to comply with its legislative obligations.
2. In the second FWC decision, the respondent's sins were those of omission (not commission), and the approach of the FWC was essentially to forgive the respondent's failures to comply with the requirements of the legislation. The existence of such discretion under the Act indicates that such failures are not to be regarded as inexcusable. It is inappropriate to draw adverse conclusions about the respondent's broader corporate culture from those failures.
3. The respondent, in relation to this subject, points to the steps it has taken subsequent to 20 October 2023, namely informing relevant employees of the right of entry provisions and ensuring there are adequate employees (managers) on site to accommodate any request for entry. I give these claims little weight. The first step has not been elaborated to any extent by any detail of the nature and extent of the communication. In any event, the contravention was not the result of any lack of knowledge on the part of employees. As to the latter, I have rejected the respondent's claim that it was not possible for the respondent to comply with its obligations under the Act due to its biosecurity requirements on 20 October 2023. Nonetheless, both steps involve some acknowledgement of the imperative for the respondent to attend to its obligations under the Act, in particular, the obligations in pt 3-4. Together with the observations about the respondent's other compliance above, they inform the need for deterrence.

1. There was no dispute that the respondent has no prior contraventions. That is a matter that stands to its credit in the assessment of an appropriate penalty.

1. The respondent has co-operated by admitting its contravention, and by agreeing some facts to put before the court. Those steps reflect a willingness to facilitate the course of justice: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70 at [72] - [76]. They should be taken into account in the respondent's favour and a discount on penalty of 15% will be applied for that reason.
2. I was not persuaded that Mr Donaldson, the principal player in the contravention on 20 October 2023, and the person who exercises ultimate authority in the respondent's operations, had any real contrition for the contravening conduct. The expression of regret in his affidavit was cryptic. The respondent's submission that Mr Donaldson had maturely reflected upon his conduct and expressed contrition is difficult to accept given both his demeanour and his inability to articulate what had been inappropriate about the respondent's conduct.

1. Having regard to the above matters it is appropriate to set a penalty which is substantial, but not to the extent the applicant seeks. Such a penalty will deter both the respondent and other employers from engaging in like conduct. There is a need to specifically deter the respondent because it continues its business operations, which involve a substantial number of employees.
2. Although the respondent has generally complied with its obligations, what is required to be deterred is the respondent again engaging opportunistically in conduct that hinders or obstructs the applicant (or any other relevant organisation of employees) exercising rights under pt 3-4 of the Act, when the exercise of those rights poses a threat to the respondent's industrial objectives, and other employers making the same calculation. A penalty should be set which is sufficient to deter the respondent, and others, from considering it expedient to contravene its obligations when other imperatives operate. There is a real risk that if the penalty that is imposed upon the respondent is at the lower end of the range, it will reinforce the contravening conduct by being dismissed as simply a cost of doing business, that is, a cost worth incurring when the potential advantages of the conduct are considered. A penalty in the range submitted by the respondent, of between $9,390 and $14,085, is likely to be seen in that way.
3. The respondent's submission that the conduct did not have any practical consequences (and therefore warrants a lower penalty) is not accepted. The applicant was denied the capacity to exercise important rights to conduct discussions that it wished to conduct on a day prior to an enterprise agreement ballot, and the rights of its members and eligible employees to participate in those discussions was infringed. The fact that the enterprise agreement was ultimately not approved because the respondent had failed to take other steps required under the FW Act in respect of its ballot is not something that should sound in mitigation of the present conduct.
4. Having regard to all of the above matters, a penalty of $50,000.00 is appropriate. Discounting that by 15% to reflect the admission of contravention that was made by the respondent and its willingness to facilitate the course of justice, a penalty of $42,500.00, will be ordered.
5. The penalty should be made payable to the applicant.

1. The applicant seeks an order that the respondent pay its costs up to the point of its admission of a single contravention.
2. Section 570 of the Act limits the power of the Court to order costs in the present proceeding. It provides as follows:

570 Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

1. The applicant initially sought to advance its claim for costs in reliance, apparently, upon s 570(2)(a) of the Act above. That subsection focuses upon an unreasonable commencement of proceedings and does not empower the Court to order costs against the respondent to the subject proceedings.
2. In submissions at the hearing, the applicant sought its order on the basis that the respondent pressed its defence after it was clear that was not maintainable. That argument was advanced on the basis that Mr Donaldson had not given evidence of any "request" (to comply with an occupational health and safety requirement) in his evidence filed on the question of liability. That contention is rejected. Neither the applicant nor the respondent read that affidavit of Mr Donaldson's, nor sought to cross-examine him on the question of any request. In any event, Mr Wade's evidence was that he had communicated Mr Donaldson's concern about biosecurity controls to Mr Clark. The applicant has not demonstrated that it was unarguable that such a communication could constitute a "request" of the relevant type.
3. The applicant's argument relied further upon the fact that in response to a Notice to Admit, the respondent admitted there was no requirement to enter a biohazard area to get to the lunch room and it was, therefore an "unreasonable act or omission" to have defended the proceeding on the basis pleaded at [6] to [8] of the Amended Defence, and the discretion in s 570(2)(b) of the Act was enlivened.
4. Maintaining an untenable pleading may constitute an "unreasonable act" for the purposes of the subsection: Ryan v Primesafe (2015) 323 ALR 107; [2015] FCA 8 (Primesafe). However, it does not follow from the fact that a party does not ultimately press an argument or defence that it was unreasonable to plead it, or to maintain it. In Primesafe, Mortimer J (as her Honour then was) said (at [64]):

...The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.

(emphasis added)

1. It is apparent from the emphasised part of the passage above, that if a defence is arguable, it will not be unreasonable to plead such defence, even though the defence ultimately fails.
2. I am unable to be satisfied on the material before the Court that the respondent's defence was unarguable.
3. In the respondent's Defence to Amended Statement of Claim dated 30 April 2024, the respondent was required to respond to two pleadings in the Amended Statement of Claim dated 24 April 2024 about permit holders having an entitlement to access the lunchroom at [26] and [29]. The pleading at [26] was ultimately abandoned by the applicant.
4. The pleading at [28] and [29] of the Amended Statement of Claim and the responses to those paragraphs in the Amended Defence to it were as follows:

1. On 20 October 2023, the Permit Holder was permitted by the Respondent to be in the smoker's lunch area of the Premises, whereby Mr Steve Donaldson (Co-director of the Respondent):
   1. approached the Permit Holder;
   2. advised the Permit Holder that if he was to move anywhere that the police will be called; and
   3. after a further request from the Permit Holder to access the lunchroom, again refused the Permit Holder access to the lunchroom.

1. In answer to paragraph 28, the Respondent:
   1. admits that Mr Donaldson refused the request of the Permit Holder to move from the smoko area to the lunch room.
   2. otherwise denies the paragraph.

1. By reason of the matters pleaded herein, the Permit Holder was entitled to hold discussions with employees in the lunchrooms on 20 October 2023 in accordance with section 492 of the FW Act.

1. In specific answer to paragraph 29 the Respondent:

a. denies the paragraph;

b. says that:

i. the Respondent made a reasonable request to comply with an occupational health and safety requirements within the meaning of the s 491 of the FW Act as it would require the Permit Holder to travel through biohazard or export-controlled areas, or through the dock area which is contrary to its traffic management plan; and

ii. the Respondent was proscribed by the Biosecurity Act and the Export Control Act from giving the Permit Holder access to the lunchroom because it would require him to travel through areas which are regulated or protected from entry by unauthorised persons.

1. The applicant gave the respondent a Notice to Admit Facts dated 10 July 2024. In that notice, the applicant called upon the respondent to admit the following fact:

On 20 October 2023, the AMIEU was not required to enter a biohazard area in order to access the lunchroom.

1. That fact was admitted by the respondent by its Notice dated 23 July 2024.
2. It does not follow from the admission of that fact that the defence articulated in [8] of the Amended Defence was not reasonably arguable.
3. Although not elegantly pleaded, the claim that there was a "reasonable request" to comply with an occupational health and safety requirement, which was posited as the basis to resist the request for access to the lunchroom, was advanced by reference to three subject areas: biohazard areas, export-controlled areas and areas the subject of the traffic management plan. The pleading advances those three matters as providing at least some part of the rationale for resisting the applicant's request to access the lunchroom. No fact was admitted in respect of the "export-controlled areas" or traffic management areas. The Court is unable to be satisfied on the evidence before it that those matters were incapable of providing a justification for the respondent's pleaded defence, and were therefore unarguable, so as to render the pleading of the Amended Defence an unreasonable act comprehended by s 570(2)(b) of the FW Act.
4. The applicant's application for costs must be dismissed.

I certify that the preceding one hundred and thirty-two (132) paragraphs are numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.