Australian Rail, Tram and Bus Industry Union v Australia Western Railroad Pty Ltd T/A Aurizon

[2018] FWC 4509

[2018] FWC 4509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry dispute

Australian Rail, Tram and Bus Industry Union
v
Australia Western Railroad Pty Ltd T/A Aurizon
(RE2018/787)

DEPUTY PRESIDENT BINET PERTH, 31 AUGUST 2018

Right of entry dispute – production of records – access to non-member record.

Introduction

[1] On 6 July 2018, the Australian Rail, Tram and Bus Industry Union (RTBU) filed an application (Application) pursuant to section 505 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) in relation to a right of entry dispute with Aurizon Western Railroad Pty Ltd (Aurizon).

[2] The dispute concerns the refusal by Aurizon to produce information requested by Mr Philip Woodcock, RTBU Branch Secretary (Mr Woodcock) on 28 June 2018 pursuant to section 481 of the FW Act, after Mr Woodcock exercised a right of entry at Aurizon’s Picton Depot earlier that day to investigate a suspected contravention of clause 18 of the Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 (Agreement).

[3] The information in question is Picton Locomotive Drivers’ Roster Exceptions for the period 25 March 2018–5 May 2018 (Roster Exceptions) and Picton Locomotive Drivers’ Roster Exceptions Return for the period 25 March 2018–5 May 2018 (Roster Returns).

[4] Aurizon refused to produce the Roster Exceptions and the Roster Returns (Roster Records) on the grounds that the Roster Records potentially contain non-member information as defined by section 482(2A) of the FW Act but offered to extract and produce to the RTBU the information of members of the RTBU contained within the Roster Records.

[5] On 9 July 2018, Aurizon filed a response to the Application.

[6] On 10 July 2018, the parties attended a conference before me with a view to resolving the Application. The Application was not able to be resolved at the conference.

[7] On 12 July 2018, Directions were issued (Directions) requiring both parties to file submissions, witness statements and supporting evidence in relation to the Application. Neither the RTBU nor Aurizon elected to make any oral submissions, thus the Application has been determined on the materials which have been filed with the FWC.

Background

[8] On 28 June 2018, the RTBU exercised a right of entry to the Aurizon Picton Depot pursuant to section 481 of the FW Act to investigate suspected breaches of the Driver Only Operations provisions of the Agreement.

[9] At the request of the RTBU a representative of Aurizon provided the RTBU with copies of Aurizon’s Master Roster and Operational/Baseline Roster. In accordance with section 483(1) of the FW Act the RTBU gave written notice to the representative of Aurizon to provide copies of the Roster Records within 14 days of the date of the notice.

[10] The Master Roster is a typed document which is developed by the consultative committee and issued in advance of planned work indicating RDOs for the complete roster. The Operational/Base Line Roster is a typed document which incorporates changes to the Master Roster required due to operational changes and is issued by the Thursday prior to the relevant shifts occurring.

[11] The Roster Exceptions is a handwritten record of work performed by drivers in any one day which differs from the work the drivers were rostered to perform in the Operational/Baseline Roster. For example if a driver performed additional hours of work than the driver was rostered to perform in the Operational/Baseline Roster. The information for all drivers is contained in a single document. 1

[12] The Exceptions Returns collates the information contained in the Roster Exceptions in a single document to provide a data source for payroll calculations.

Relevant legislation

[13] Sections 481, 482, 483 and 505 of the FW Act relevantly provide as follows:

“481 Entry to investigate suspected contravention

(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a) whose industrial interests the organisation is entitled to represent; and

(b) who performs work on the premises.

Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).

Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).

Note 3: 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 4: 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).

(2) The fair work instrument must apply or have applied to the member.

(3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

Note: A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part).

482 Rights that may be exercised while on premises

Rights that may be exercised while on premises

(1) While on the premises, the permit holder may do the following:

(a) inspect any work, process or object relevant to the suspected contravention;

(b) interview any person about the suspected contravention:

(i) who agrees to be interviewed; and

(ii) whose industrial interests the permit holder’s organisation is entitled to represent;

(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the premises.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(1A) However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Meaning of affected employer

(2) A person is an affected employer, in relation to an entry onto premises under this Subdivision, if:

(a) the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and

(b) the member performs work on the premises; and

(c) the suspected contravention relates to, or affects, the member.

Meaning of non-member record or document

(2A) A non-member record or document is a record or document that:

(a) relates to the employment of a person who is not a member of the permit holder’s organisation; and

(b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;

but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.

Occupier and affected employer must not contravene requirement

(3) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).

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

483 Later access to record or document

Later access to record or document

(1) The permit holder may, by written notice, require an affected employer to produce, or provide access to, a record or document (other than a non-member record or document) that is directly relevant to the suspected contravention on a later day or days specified in the notice.

(1A) However, an affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

(2) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

(3) The notice may be given:

(a) while the permit holder is on the premises; or

(b) within 5 days after the entry.

Affected employer must not contravene requirement

(4) An affected employer must not contravene a requirement under subsection (1).

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

Where record or document may be inspected or copied

(5) The permit holder may inspect, and make copies of, the record or document at:

(a) the premises; or

(b) if another place is agreed upon by the permit holder and the affected employer—that other place.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

…”

Consideration

[14] Section 481 of the FW Act permits a permit holder to enter premises for the purposes of investigating a suspected contravention of an enterprise agreement that relates to, or affects, a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent and who performs work on the premises.

[15] Aurizon have not asserted that RTBU improperly entered the Picton Depot. Aurizon have not asserted that they have do not have employees who are:

•  entitled to be represented by the RTBU;

•  are members of the RTBU;

•  work at the Picton Depot; and

•  are covered by the Agreement.

[16] Pursuant to section 482 of the FW Act a permit holder having entered premises in accordance with section 481 of the FW Act is entitled to require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that is kept on the premises or is accessible from a computer that is kept on the premises.

[17] Aurizon have not asserted that it is not the occupier or affected employer at the Picton Depot. Nor has Aurizon asserted that the Roster Records sought by the RTBU are not relevant to a suspected contravention of the Agreement.

[18] The sole basis on which Aurizon refused to provide the Roster Records is that the Roster Records potentially include non-member records.

[19] A non-member record or document is defined in section 482(2A) of the FW Act as a record or document that relates to the employment of a person who is not a member of the permit holder’s organisation and does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation.

[20] Section 482(2A) is a two-limb test definition. For a document or record to be classified as a 'non-member record or document' both elements of section 482(2A) require satisfaction. 2

[21] The RTBU concedes that the Roster Records contain records relating to the employment of Aurizon employees who are not members of the RTBU, however the RTBU submits that Aurizon has failed to demonstrate that the Roster Records do not substantially relate to the employment of a person who is a member of RTBU.

[22] In order to determine whether the Roster Records substantially relate to the employment of a person who is a member of the RTBU the parties are directed as follows:

a. Within 14 days of the date of this decision Aurizon must file in the FWC a copy of the Roster Records.

b. Within 14 days of the date of this decision the RTBU must file in the FWC a list of the financial members of the RTBU for the period between 25 March 2018 and 5 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR609600>

 1   RTBU Submissions filed on 19 July 2018 at [8]-[9].

 2   Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [20 14] FWC 358 [37].