Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Primero Group Pty Ltd

[2019] FWC 5925

[2019] FWC 5925

FAIR WORK COMMISSION

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
v
Primero Group Pty Ltd
(RE2019/731)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 27 AUGUST 2019

Application for an order to access non-member records – application by Primero to have ex parte order issued 8 August 2019 set aside

[1] On 31 July 2019, Mr Paul Scudds of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU or the Union) 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.

[2] An ex-parte hearing was conducted on 8 August 2019, after which time I determined, on the basis of the material before me, that the orders being sought by the CEPU were necessary to investigate the suspected contravention. On the same day, a Decision 1 and Order2 were issued which allowed Mr Paul Scudds of the CEPU (the nominated permit holder), for the period from 11.59pm 8 August 2019 to 11.59pm 8 September 2019, to:

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

•  require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under section 483(1) of the FW Act.

[3] The non-member records or documents were defined as:

“All rosters, timesheets and annual leave accruals for Electrical Tradespersons engaged by Primero at the Barker Inlet Power Station Site for the period of 1 March 2019 to 30 June 2019”.

[4] The Order also contained a provision allowing Primero Group Pty Ltd (Primero) to apply, within seven days from the date of the Order, to have the order set aside should there be lawful grounds to do so. I required such application to be made on a form F1 and to be served on the CEPU within 48 hours of the application being made.

[5] On 12 August 2019, Primero filed a form F1 application for the Order to be set aside. At the same time, the application was served on the CEPU. Primero submitted, in its application, that it sought for the order to be set aside to protect the information of Primero employees who may not be members of the CEPU and on the basis that Mr Scudds had originally made a request for such records via an entry notice dated 22 July 2019, at which time Primero had indicated that should Mr Scudds provide names of the CEPU members and evidence of their membership the requested documents would be supplied. Primero contended that such documents would have allowed Mr Scudds to complete his investigation.

[6] The matter was listed for hearing, via telephone, at 1.00pm (ACST) on 16 August 2019 and Primero was required to file by 1.00pm (ACST) on 15 August 2019 an outline of its position and a witness statement, if any, from each witness it intended on calling to give evidence.

[7] On 15 August 2019, Primero complied with the directions and filed and outline of its position.

[8] At the hearing on 16 August 2019, Ms Caryn Jones, People and Culture Manager, and Mr Bernie O’Reilly, Industrial Relations Consultant, appeared on behalf of Primero and Ms Jess Rogers and Mr Paul Scudds appeared on behalf of the CEPU.

[9] At the telephone hearing, Ms Jones advised that the employer had not received a copy of the originating application and was unclear of the specific grounds advanced by the Union. After having the grounds outlined, Primero sought and was granted an opportunity to respond in a considered fashion to the specific CEPU contentions. Mr Scudds provided a verbal undertaking to not act upon the ex parte Order of 8 August 2019 until Primero’s application had been determined. On this basis, I did not suspend the operation of the Order dated 8 August 2019.

[10] On 16 August 2019, I issued further directions requiring the CEPU to provide a copy of the originating application to Primero by close of business (5.00pm ACST) on 16 August 2019. Primero were provided with the opportunity to provide any further material which it would seek to rely on by 20 August 2019 and the CEPU was to file any material in reply by 22 August 2019.

[11] On 20 August 2019, Primero provided a written response which also attached a memorandum dated 16 August 2019 to employees covered by the Primero Enterprise Agreement 2016 (the Agreement) with the subject “Accrual of Personal and Annual Leave”. The written response rejected the CEPU’s submission that should there be a downturn in the number of workers’ required, CEPU members (if identified) would be the first to go from the workforce. Primero also contended that the Order issued was not necessary as the company is “open to the process of accrual of entitlements in accordance with the Primero Enterprise Agreement 2016”.

[12] The CEPU did not provide additional material but relied on its materials already filed.

[13] At the resumed telephone hearing on 26 August 2019 at 12.00pm (ACST) Ms Caryn Jones, People and Culture Manager, and Mr Bernie O’Reilly, Industrial Relations Consultant, appeared on behalf of Primero and Ms Jess Rogers and Mr Paul Scudds appeared on behalf of the CEPU.

[14] At the hearing, Primero made oral submissions in support of its written materials of 15 and 20 August 2019. It submitted that providing the CEPU access to non-member records held by the employer is unnecessary for the Union to investigate suspected contraventions. Primero says that it has been and remains willing to discuss with the CEPU and any employees, whether union or non-union members, any concerns held about the quantum or accrual of annual leave across its sites. It submits that its memorandum of 16 August 2019 addressed to employees was a response to the issue being raised informally with supervisors by some employees and the Union. Whilst believing that its annual leave practices conform to both the Agreement and the National Employment Standards (NES), Primero point to the dispute resolution clause of the Agreement as an avenue for formal dispute settlement. Finally, it says that its employment practices, whether relating to leave or to redundancy, are conducted on a non-discriminatory basis.

[15] The CEPU submitted that access to non-member records was necessary because a suspected contravention of the annual leave provisions of the Agreement or the NES is a serious matter, and that its members employed by Primero hold a reasonably based fear that if their identities were known to the employer then the employer may take discriminatory action against the union members either with respect to their annual leave rights or future redundancies or other workplace matters. The Union further submitted that without non-member records being provided, its members may be reluctant to authorise the Union to continue its investigation for fear of discrimination, thus leading to a suspected contravention having occurred but not being pursued or remedied.

Consideration

[16] This decision does not concern whether Primero has or has not met its annual leave obligations under either the Agreement or the NES. It concerns a narrower issue: that is, whether an ex parte Order enabling the CEPU to investigate that question by accessing time and wage records of non-members employed by Primero on the Barker Inlet Power Station Site should be set aside.

[17] Without expressing a view either way on the matter of annual leave compliance, I accept for the purposes of this decision that the CEPU holds a concern that the employer’s practices concerning annual leave may not accord with the requirements of the Agreement or the NES, and that the Union wishes to genuinely investigate that issue.

[18] I also accept for the purposes of this decision that the employer believes that its practices concerning annual leave are lawful, are non-discriminatory and that it genuinely has offered to discuss how it applies its annual leave obligations for employees working the two rostering arrangements that are currently in operation at the Barker Inlet Power Station Site.

[19] Whether the ex parte Order should be set aside is to be determined by reference to the provisions of section 483 and 483AA of the FW Act.

[20] The statutory scheme seeks to facilitate investigations of this type and a role for a Union official holding a right of entry permit, within defined limits, to access documents for that purpose. It entitles a permit holder to “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” (section 483(1)).

[21] The obligation in section 483(1) to “require” the provision of documents is an expression of that statutory purpose. However, as Jessup J said in Independent Education Union of Australia v Australian International Academy of Education Inc 3 “the passage in parenthesis places a further limit on the range of records and documents that may be inspected and copied”. The limitation in section 483(1) is that the prima facie right of a permit holder to require the provision of documents does not extend to non-member records. The default position established by the statutory scheme is that access by a Union official to records of a non-member is not of right, but only by Commission order under section 483AA(1)(b).

[22] Section 483AA(2) regulates the circumstances in which the Commission may make such an order:

“(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.”

[23] As noted in my ex parte decision of 8 August 2019, Mr Scudds of the CEPU does not have any conditions imposed on his entry permit.

[24] However, in light of the further material and submissions provided by the parties, can it continue to be said that the Order is necessary to investigate the suspected contravention?

[25] For the following reasons, I do not think so.

[26] Firstly, annual leave obligations under both the Agreement and the NES apply irrespective of whether an employee is a union member or not. There is no reason to conclude, at least on the material currently before me, that an inspection by the permit holder of time and wage records of CEPU members will not provide the CEPU with a basis to form a view as to whether the Agreement or the NES have been breached. Whilst knowledge of particular rosters or working arrangements worked by electricians at the site may bear on this question, there is no evidence before me that those rosters or working arrangements are directly or indirectly based on union membership or would not otherwise be made available by the employer.

[27] Secondly, there is no evidence before me that leads me to conclude that the apprehension held by union members that the disclosure of their identities to the employer will result in discriminatory treatment is reasonably based. If it were reasonably based, this would weigh in favour of a conclusion that access by the permit holder to non-member records may be “necessary” so as to avoid such disclosure. 4 However, the evidence before me is no more than a concern to that effect on the part of the Union and its members. In circumstances where the statutory scheme provides for access to non-member records by order only and not as of right, I consider that more than an expression of concern or fear is required to displace the default statutory position.

[28] Thirdly, the language of section 483AA(2) must be given effect. The test for granting an order (or conversely, for setting aside an ex parte order) is whether access is “necessary” to non-member records to investigate a suspected contravention. The word “necessary” sets a bar that requires the Commission to conclude that access to non-member records is needed in the circumstances in the sense that the permit holder could not otherwise reasonably investigate the matter. After noting the parenthetical exclusion concerning accessing non-member records, Jessup J said in Independent Education Union of Australia v Australian International Academy of Education Inc: 5

“The notion of “necessary” in s 483AA(2) carries the meaning that the investigation could not be properly investigated with that exclusion in place.”

[29] Fourthly, discriminatory action by an employer against employees for reason of membership or non-membership of a trade union would constitute unlawful conduct in breach of Chapter 3 of the FW Act and give rise to civil and pecuniary penalties. Whilst these statutory protections do not mean that a fear of discrimination may not be reasonably held in given circumstances in a particular workplace, they provide a basis on which the permit holder can call the employer to account should, following access to member records, there be a suspected contravention of the freedom of association provisions of the FW Act.

[30] What is apparent from the material now before me, and was not known at the time of the ex parte Order being made, is that the employer had received questions concerning annual leave accruals from both union members and non-members alike, has subsequently responded with a position and has made itself available to provide rosters pertaining to union and non-union members alike to assist any investigation.

[31] I conclude that the Order issued on 8 August 2019 is no longer necessary for the permit holder to investigate the suspected contravention. Accordingly, the Order dated 8 August 2019 is revoked. An Order 6 revoking the Order will be issued with this Decision.

[32] It remains the case that the employer has an obligation under section 483(1) of the FW Act to provide Mr Scudds records (other than non-member records) directly relevant to the investigation of the suspected contravention.

DEPUTY PRESIDENT

Appearances:

J Rogers and P Scudds for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

B O’Reilly and C Jones for the respondent.

Hearing details (telephone):

2019.

Adelaide:

August 16, 26.

Printed by authority of the Commonwealth Government Printer

<PR711693>

 1   [2019] FWC 5448

 2   PR711045

 3 [2016] FCA 140 at 111

 4   See for example Arkwood Organic Recycling Pty Ltd v Transport Workers Union of Australia[2012] FWA 8916

 5 [2016] FCA 140 at 112

 6   PR711695