Beau Seiffert

[2018] FWC 1439

[2018] FWC 1439

FAIR WORK COMMISSION

DECISION

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

Beau Seiffert
(RE2018/104)

COMMISSIONER HUNT BRISBANE, 9 MARCH 2018

Application for an order to access non-member records.

[1] Mr Beau Seiffert has applied to the Fair Work Commission (the Commission) for an order requiring TX Payroll Services Pty Ltd (the Employer) to produce, or provide access to, non-member records or documents (or parts of such records or documents) under subsection 483(1). The application is made pursuant to s.483AA of the Fair Work Act 2009 (the Act).

[2] Mr Seiffert is an employee of the Construction, Forestry, Mining and Energy Union (CFMEU) and holds an entry permit issued by the Commission (RE2017/951). Mr Seiffert was represented by the CFMEU for the purpose of this application.

[3] On 23 February 2018, my Associate wrote to the CFMEU on my instructions indicating that the Commission would be prepared to make the orders sought with two qualifications, being that:

- the period be 1 July 2017 to the date of the order; and
- details of the employee’s address or other identifying information, except for the employee’s name, be redacted from the material to be produced to the permit holder.

[4] The CFMEU opposed the qualifications proposed by me and the application was heard on an ex parte basis on 9 March 2018.

[5] The Commission accepted into evidence two affidavits sworn by Mr Seiffert. On or around 19 December 2017, Mr Seiffert received a telephone call from an employee of the Employer, regarding a suspected underpayment of wages and conditions. Mr Seiffert met with the employee and examined his payslip against the industrial instrument applying to his employment. He determined that there appeared to be an underpayment.

[6] On 17 January 2018, Mr Seiffert issued the Employer with a notice under s.481 of the Act. The Employer responded stating that it required Mr Seiffert to nominate which of its employees are members of the CFMEU. Mr Seiffert holds a concern that providing names of members to the Employer may jeopardise their employment with the Employer.

[7] Mr Seiffert stated that he considers it necessary for an order to be made to allow the CFMEU access to records of members and non-members, without disclosing which employees of the Employer are members of the CFMEU.

[8] After hearing from the CFMEU I have determined that the period sought by the CFMEU is appropriate, which is from 27 June 2016 until the date of the Order. Given the nature of the industry in which the work is performed, that being traffic control, it is likely that there is a relatively large number of employees employed over relatively short periods of time. While I accept that an approximate 20 month period is a long period of time, and there may be many records required to be produced, I consider it appropriate to allow as many employees as possible to have their records analysed by the CFMEU to determine if, in its view, there are contraventions.

[9] I am not satisfied that it is necessary or appropriate for the CFMEU to have access to employees’ home addresses. If the documents contain details of the employees’ phone numbers and/or email addresses, I consider that to be a sufficient and appropriate method of contact for the CFMEU to alert any employees or former employees to any suspected contraventions. The order will include an obligation to redact from any of the documents an employee’s home address.

[10] Section 483AA states that the Commission may make an order if it is satisfied that the order is necessary to investigate the suspected contravention and must take into account any conditions imposed on the permit holder’s entry permit.

[11] I am satisfied that the orders being sought, subject to the qualification made by at [9] are necessary to investigate the suspected contraventions. I am satisfied that Mr Seiffert does not have any conditions imposed on his entry permit.

[12] The Order [PR601055] will be issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR601054>