Applications by Shop, Distributive and Allied Employees Association

[2020] FWC 6248

[2020] FWC 6248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.483AA - Application for an order to access non-member records

Applications by Shop, Distributive and Allied Employees Association
(RE2020/1004; RE2020/1005; RE2020/1006; RE2020/1007)

DEPUTY PRESIDENT BULL SYDNEY, 25 NOVEMBER 2020

Application for access to non-member records.

Introduction:

[1] On 10 November 2020, four applications were made (the applications) pursuant to s.483AA of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to make orders allowing access to non-member records. The application particulars are as follows:

•  RE2020/1004 application by Mr Anthony Mark Day for an order for access to non-member records held by Turramurra Supermarkets Pty Ltd.

•  RE/2020/1005 application by Mr Anthony Mark Day for an order for access to non-member records held by NSW Retail Consultants Pty Ltd.

•  RE2020/1006 application by Mr Mitchell Luke Worsley for an order for access to non-member records held by Turramurra Supermarkets Pty Ltd.

•  RE2020/1007 application by Mr Mitchell Luke Worsley for an order for access to non-member records held by NSW Retail Consultants Pty Ltd.

[2] Turramurra Supermarkets Pty Ltd and NSW Retail Consultants Pty Ltd are associated entities and share the same directors. Turramurra Supermarkets Pty Ltd operates IGA Turramurra and IGA Telopea. NSW Retail Consultants Pty Ltd operates IGA Guilford.    1

[3] Employees at IGA Turramurra are covered by either the General Retail Industry Award 2020 (the Award) or the Franklins National Retail Agreement 2008 (theFranklins Agreement).

[4] Employees at IGA Telopea are covered by the Award.

[5] Employees at IGA Guilford are covered by the either the Award, or the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (Coles Agreement).

[6] Mr Day and Mr Worsley (the applicants) are both employees of the Shop, Distributive and Allied Employees Association - New South Wales Branch (SDA) and hold entry permits issued by the Commission. 2

[7] The applications for an order for access to non-member records filed in respect of Turramurra Supermarkets Pty Ltd concern suspected contraventions in relation to the payment of wages and superannuation being paid late in contravention of the Franklins Agreementand the Award.

[8] Similarly, the applications in respect of NSW Retail Consultants Pty Ltd concern suspected contraventions in relation to the payment of wages and superannuation being paid late in contravention of the Coles Agreementand the Award. The documents requested to be accessed are:

1. All time and wages records for employees from 1 January 2018 to 8 November 2020, including rosters, payslips, signing on and signing off records, time sheet adjustments and exception reports.

2. All documents relating to remittance of wages to employees’ bank accounts produced from 1 January 2018 to 8 November 2020, including bank statements and payment summaries.

3. All documents relating to remittance of superannuation to any superannuation fund on behalf of employees produced from 1 January 2018 to 5 November 2020 including bank statements and payment summaries.

[9] The applicants state that the access is necessary to allow the SDA to enforce the minimum entitlements of the employees. Further, the applicants state that it is necessary to access non-member records to protect the anonymity of its members.

[10] The matter was the subject of an ex-parte conference before me on 20 November 2020, Mr Worsley appeared for the applicants and was requested to provide further information in the form of a statutory declaration supporting the alleged breaches. Mr Worsley subsequently provided a statutory declaration dated 23 November 2020.

Service of the Applications:

[11] Prior to July 2019, there was no requirement for non-member employees or the relevant employer to be informed that an application had been made to access non-member records in respect of a suspected contravention of the Act or a fair work instrument.

[12] In July 2019, Rule 34A was inserted into the Fair Work Commission Rules 2013 (the Rules) by the President of the Commission, exercising authority under s.609 of the Act. 3

[13] Rule 34A provides as follows:

“34A Application for an order for access to non-member records

(1) This rule applies if an application under section 483AA of the Act for an order in relation to non-member records is served on an occupier or affected employer.

(2) At the time the application is served on the occupier or affected employer, it must be accompanied by a notice that sets out the effect of subrule (3).

(3) The occupier or affected employer must, within 24 hours after being served with the application:

(a) display the application at the occupier’s or the affected employer’s premises at a location where notices to employees are generally displayed; or

(b) make a copy of the application available to employees through the usual means that are adopted by the occupier or affected employer for communicating with employees.”

[14] The explanatory statement issued at the time describes the reasons for the introduction of Rule 34A as follows:

“The Commission must perform its functions in a way that is fair and just and open and transparent, but neither the Act nor the Rules previously made provision for affected non-member employees to be informed that such an application has been made or for them to make submissions.

Item 15 of Schedule 1 to the Rules Amendment introduces a new rule 34A that provides employees whose records are being sought through the application with an opportunity to make submissions to the Commission.” 4

[15] Schedule 1 Instructions as to Service to the Rules provides that, subject to an order of the Commission a Form F43 – Application for an Order for access to non-member records must be served on each occupier and affected employer in relation to which the orders are sought as soon as practicable after lodgement with the Commission.

[16] The statutory declaration provided by Mr Worsley on 23 November 2020, contained annexures documenting the service of the applications on Turramurra Supermarkets Pty Ltd and NSW Retail Consultants Pty Ltd by way of email on 10 November 2020 (the same day the applications were filed).

[17] I note that no response to the applications in the present matter has been received by the Commission or my Chambers.

Relevant legislation:

[18] Section 481 of the Act sets out the circumstances in which an entry permit holder can exercise their right of entry for purpose of investigating a suspected contravention of the Act or a fair work instrument that relates to, or affects, a member of the permit holder’s organisation. The permit holder must reasonably suspect that the contravention has occurred, or is occurring and the burden of proving that the suspicion is reasonable lies on the person asserting that fact. 5 A permit holder who makes such an application without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503.6

[19] Section 482 sets out what rights may be exercised by a permit holder while on the employer’s premises.

Non-member records

[20] In relation to the applications before the Commission, s.483AA provides that an application may be made by a permit holder to inspect, make copies and access non-member records in relation to a suspected contravention:

“483AA - Application to the FWC for access to non‑member records

(1) The permit holder may apply to the FWC for an order allowing the permit holder to do either or both of the following:

(a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non-member records or documents (or parts of such records or documents) under paragraph 482(1)(c);

(b) require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under subsection 483(1).

(2) The FWC may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, the FWC must have regard to any conditions imposed on the permit holder's entry permit.

(3) If the FWC makes the order, this Subdivision has effect accordingly.

(4) An application for an order under this section:

(a) must be in accordance with the regulations; and

(b) must set out the reason for the application.”

Conclusion

[21] As can be seen from the above extract of s.483AA(2), the Commission may make the requisite orders if it is satisfied that the orders are necessary to investigate the suspected contraventions, but before doing so, must have regard to any conditions imposed on the permit holders’ entry permits. The Commission has been advised by Mr Worsley that there are no conditions on the entry permits of Mr Day or himself. 7

[22] On the material provided in the applications and the Statutory Declaration of Mr Worsley, I am satisfied that there is a reasonable basis for suspecting contraventions of the Award and relevant enterprise agreements and that the orders being sought are necessary to investigate the suspected contraventions.

[23] Orders to this effect ([PR724872] and [PR724873]) will issue with this Decision.

[24] The Orders to investigate the suspected conventions will take effect from the date of the Orders and will operate for a period of 30 days.

[25] Liberty is reserved for any affected party to make an application to the Commission for the Orders to be varied or set aside.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724751>

 1   Statutory declaration of Mitchell Worsley of 23 November 2020

 2   RE2020/424 and RE2018/428 respectively

 3   Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019 (F2019L01000)

 4 Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019, Explanatory Statement (F2019L01000)

 5   S.481(3)

 6   See note to s.481(3)

 7   Email of 25 November 2020