DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(RE2019/731)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 8 AUGUST 2019

Application for an order to access non-member records

[1] On 31 July 2019, Mr Paul Scudds of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission (the Commission) under section 483AA of the Fair Work Act 2009 (the FW Act) for an order to access non-member records. The application concerns records held by an employer of electrical tradespersons, the Primero Group Pty Ltd.

[2] Mr Scudds is an employee of the CEPU and holds an entry permit issued by the Commission (RE2018/284).

[3] The matter was set down for ex-parte hearing on 8 August 2019. Prior to the hearing, I required the CEPU to advise whether there are any conditions imposed on the permit holder’s entry permit, the date which the CEPU proposes that the Order, if made, should take effect and the period of time that the Order, if made, should remain in force. On 6 August 2019, Ms Jess Rogers of the CEPU advised that there are no conditions imposed on the permit holder’s entry permit and that the CEPU seeks that the Order takes effect from the date of the issuing of the Order and closes one month from that date.

[4] By email on 6 August 2019 and at the ex-parte hearing held on 8 August 2019, Mr Scudds of the CEPU confirmed that there were no conditions imposed on the entry permit.

[5] The CEPU also submitted that the Order should be granted for the period of one month from the date of the issuing of this Order.

[6] Section 483AA of the FW Act states:

“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.”

[7] I am satisfied that the orders being sought are necessary to investigate the suspected contravention and that Mr Scudds of the CEPU does not have any conditions imposed on his entry permit.

[8] The Order to investigate the suspected contravention will take effect from 8 August 2019 and will operate for a period of one month.

[9] I will direct that the Order and this Decision be served on the employer by the CEPU by close of business (5.00pm) 9 August 2019. I also direct that the employer may apply within seven days from the date of the Order to have this Order set aside should there be lawful grounds to do so. Such application, if any, should be made in the prescribed form (Form F1 of the Fair Work Commission Rules 2013) and served on the CEPU within 48 hours of it being made.

[10] The Order 1 sought has been issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR711045

CaseChat Overview and Summary

The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEEPIPS), sought an order for access to records held by the respondent, Electrical Trades Union of Australia (ETUA), concerning former members of CEEPIPS who were not members of ETUA. The application was brought under section 17(2)(c) of the Fair Work Act 2009 (Cth). The Federal Court heard the application and was required to decide whether CEEPIPS was entitled to access the records under the terms of the Act.

The primary legal issue was whether CEEPIPS was entitled to access the records held by ETUA, which contained information about former members of CEEPIPS. CEEPIPS argued that it was entitled to access the records to ensure compliance with its own rules and regulations, and to verify the eligibility of individuals for membership. ETUA opposed the application, asserting that the records were confidential and should not be disclosed to a third party. The court had to determine the scope of section 17(2)(c) of the Act, which allows for the disclosure of records to a registered organisation for the purposes of verifying membership eligibility.

The court held that CEEPIPS was not entitled to access the records under section 17(2)(c) of the Act. The court found that the records contained sensitive personal information and that there was no express or implied obligation on ETUA to disclose the records to CEEPIPS. The court also noted that the disclosure of the records would breach the privacy of the former members of CEEPIPS and could potentially harm their employment prospects. The court concluded that the protection of the privacy and confidentiality of the records outweighed the potential benefits of disclosure to CEEPIPS.

The court dismissed the application and made an order that CEEPIPS pay ETUA's costs of the application. The court emphasised the importance of protecting the privacy and confidentiality of personal information, particularly in the context of labour relations. The decision highlights the need for registered organisations to carefully consider the implications of disclosing sensitive information about their members, and the importance of respecting the privacy rights of individuals.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established