Construction, Forestry and Maritime Employees Union v Brandon-Baker
[2025] FCA 277
•28 March 2025
FEDERAL COURT OF AUSTRALIA
Construction, Forestry and Maritime Employees Union v Brandon-Baker [2025] FCA 277
File number(s): VID 65 of 2025 Judgment of: ANDERSON J Date of judgment: 28 March 2025 Catchwords: INDUSTRIAL LAW – whether notice requiring production of documents issued pursuant to s 712 of the Fair Work Act 2009 (Cth) is valid – whether notice sufficiently identifies the conduct being investigated – consideration of particularity of information required to be included in notice – held that notice included sufficient detail – application dismissed Legislation: Fair Work Act 2009 (Cth) Cases cited: 85Degrees Coffee Australia Pty Ltd v Fair Work Inspector Rodwell [2020] FCA 1190; 299 IR 280
AB Pty Ltd v Australian Crime Commission [2009] FCA 119; 175 FCR 296
Aurora Construction Materials Pty Ltd v Victorian Workcover Authority [2018] VSCA 165
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCA 1667; (2004) 140 FCR 192
Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; 240 ALR 135
Division: General Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 59 Date of hearing: 19 March 2025 Counsel for the Applicant: Mr C Massy Counsel for the Respondent: Mr A Denton and Ms T Duthie ORDERS
VID 65 of 2025 BETWEEN: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
Applicant
AND: WILL BRANDON-BAKER
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.The Applicant’s originating application dated 24 January 2025 be dismissed.
2.The Applicant pay the Respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
The applicant seeks a declaration that a notice to produce (NTP) purportedly issued pursuant to s 712 of the Fair Work Act 2009 (Cth) (the Act) by the respondent on 19 December 2024 (the Notice) is invalid and of no effect. The applicant submits that the Notice is invalid because it does not sufficiently describe the matter being investigated to permit the applicant to ascertain:
(a)that it is a matter that the respondent is entitled to investigate; and
(b)the relationship between the matter being investigated and the documents sought under the Notice.
RELEVANT FACTS
On 28 October 2024, the respondent issued a NTP to the applicant (October NTP). The October NTP was expressed in very similar terms to the Notice that is the subject of this proceeding. It stated that the respondent was investigating allegations relating "to action taken, or organised, by the CFMEU and/or the CFMEU Representatives that prevented, or prejudiced, Marda Dandhi Downunder Pty Ltd (Business) from performing work on commercial construction sites in Victoria."
On 20 November 2024, the applicant wrote to the respondent requesting that the October NTP be withdrawn. The applicant alleged that the October NTP was “insufficiently particularised”, such that it could not determine whether the materials sought were within the ambit of the respondent’s entitlement to seek records or documents.
On 21 November 2024, the respondent replied, declining to withdraw the October NTP. The response said that the applicant’s assertion invited the October NTP to be read in an over-technical and hyper-critical manner without consideration of the fact that the Fair Work Ombudsman (FWO) was, at that stage, conducting an investigation. The response also disputed that the October NTP was required to set out, with particularity, the precise acts that had been engaged in that would sound in particular contraventions of the Act.
On 22 November 2024, the applicant sent the respondent a draft Federal Court originating application and advised that it intended to issue proceedings to have the October NTP set aside. It also requested an extension of time to comply with the October NTP. The respondent replied on the same day, declining to extend the time for production of documents as required by the October NTP.
On 26 November 2024, despite its objections, the applicant sent the respondent a link to documents it produced in compliance with the October NTP.
Subsequently, on 9 December 2024, the respondent issued a further NTP, in respect of the exact same investigation, seeking three categories of documents substantively identical to some of those sought in the October NTP, but relating to a different period of time (9 December NTP).
On 17 December 2024, the applicant wrote to the respondent requesting an extension of time to comply with the 9 December NTP as it anticipated “some difficulties in complying with our obligations on the face of the Notice within the stipulated timeframe for response.”
On 18 December 2024, the respondent wrote to the applicant advising that the FWO was unable to amend the compliance date but assured that it would not take enforcement action in respect of any failure to comply with the 9 December NTP if the documents or records sought were provided by 31 January 2025.
On 19 December 2024, the applicant replied to the respondent and indicated that it would prefer the 9 December NTP be withdrawn and “re-issued in the same terms” with a revised date.
On 19 December 2024, the respondent accommodated the applicant's request and withdrew the 9 December NTP and issued the Notice the subject of this proceeding to the applicant (in the "same terms" as the 9 December NTP, save for the compliance date). Like the October NTP, the Notice described its compliance purpose in the following terms:
I am investigating whether the CFMEU and its officers, officials and/or employees (collectively, CFMEU Representatives) contravened provisions of the FW Act between 18 February 2021 and 31 October 2022. The allegations relate to action taken, or organised, by the CFMEU and/or the CFMEU Representatives that prevented, or prejudiced, Marda Dandhi Downunder Pty Ltd (Business) from performing work on commercial construction sites in Victoria.
Like the October NTP, the Notice identifies the provisions of the Act which the investigation concerns, being sections 340, 343, 345, 354, 355, 362 and 500 of the Act. The Notice then sought three categories of documents to be produced, all three in substantively identical terms to three of the categories contained in the October NTP, but concerning a different (and more confined) time period.
The Notice is extracted in Annexure A to these reasons.
On 20 December 2024, the applicant sent correspondence to the respondent advising that it did not consider the Notice to be valid because the Notice did not contain sufficient particulars of the allegations being investigated by the respondent. Further, that the applicant remained “uncertain as to the necessary steps required in order to comply with it”.
On 24 December 2024, the respondent sent correspondence to the applicant, refusing to withdraw the notice.
On 17 January 2025, the applicant again sent correspondence to the respondent identifying the deficiencies with the Notice and requesting that the Notice be withdrawn. The applicant also offered to meet with the respondent to discuss the issues with the notice and attempt to resolve the matter.
On 20 January 2025, the applicant received correspondence from the respondent, who declined to withdraw the Notice and agreed to meet with a proposed date of 24 January 2025.
On 24 January 2025, the applicant instituted this proceeding.
At the hearing, the applicant relied upon the affidavit of David Vroland affirmed 24 January 2025. The respondent relied upon the affidavit of Keryn Midwood affirmed 14 February 2025.
LEGISLATIVE SCHEME
Section 706 of the Act sets out the purposes for which the powers of inspectors may be exercised. The relevant purpose in this case is determining whether the Act has been complied with pursuant to s 706(1)(a). Sections 708 – 712 set out the powers of an inspector and persons assisting inspectors. Relevantly, s 712 of the Act empowers an inspector to require the production of records or documents. The power conferred by s 712 may only be exercised for one of the purposes set out in s 706 of the Act.
Notices issued pursuant to s 712 are coercive. Section 712(3) provides that a person must not fail to comply with a notice. Further, pursuant to s 539 of the Act, failure to comply with a notice issued pursuant to s 712 is a civil penalty offence. This means that an inspector may seek the imposition of pecuniary penalties and/or granting of mandatory injunctions in the event of non-compliance with a notice.
PRINCIPLES ON CONSTRUCTION OF NOTICES TO PRODUCE
The principles to be applied when considering the validity of a notice issued pursuant to s 712 of the Act were summarised by Katzmann J in 85Degrees Coffee Australia Pty Ltd v Fair Work Inspector Rodwell [2020] FCA 1190; 299 IR 280 at [20]-[23]. Those principles are that:
(a)first, the power to issue such a notice is constrained by the requirement in s 706 for inspectors to exercise their powers for a compliance purpose as defined in that section;
(b)second, the notice must show on its face that it is a proper exercise of the power in furtherance of the particular purpose. In other words, the notice must specify that it has been issued pursuant to s 712;
(c)third, the reference in s 706(1)(a) to compliance with the Act is to be understood as a reference to compliance with a particular provision (or provisions) of the Act and that provision (or those provisions) should ordinarily be identified in the notice;
(d)fourth, in order for a notice under s 712 to be valid, it must not only disclose that it is an exercise of the power conferred on an inspector by that section, but it must also, "on a non-technical and fair reading of its terms”:
(i)specify with reasonable clarity the records or documents that the recipient is required to provide; and
(ii)disclose the relationship between the records or documents being required and the matter (the particular inquiry as to non-compliance) which is the subject of the exercise of the power, so as to enable its recipient to determine whether the inspector is exercising the power for a "compliance purpose" (s 706(1)).
In Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 375 (Northrop, Deane and Fisher JJ), the Full Federal Court observed that statutory notices must be read in context, in a fair, non-technical manner, and that the requirement for clarity is not to be applied "in a precious or hypercritical fashion", saying:
Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s. 155 (1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.
The concern of the Court is to ensure that the statutory demands that may be authorised are construed in a practical and common-sense manner: AB Pty Ltd v Australian Crime Commission [2009] FCA 119; 175 FCR 296 at [37] (Flick J).
Statutory notices are not to be considered in a vacuum, divorced from the context in which they have been issued. The authorities recognise two important contextual matters. The first, the investigative nature in which the notices are issued; and second, the experience and sophistication of the recipient – including whether other correspondence relating to the investigation has been exchanged.
As to the investigative context, the Supreme Court of Victoria – Court of Appeal in Aurora Construction Materials Pty Ltd v Victorian Workcover Authority [2018] VSCA 165 at [88] (Kaye JA, Tate JA agreeing), stated:
The investigation in question may be at an incipient or early stage. For those reasons, in considering the validity of the notice in a particular case, it is important to bear in mind the caution, that has been reiterated in a number of the cases, that the issue, of the validity of such a notice, should not be addressed in an over-technical or hyper-critical manner.
The Full Federal Court in Pyneboard at 376 also emphasised the relevance of the investigative context when considering the validity of statutory notices, saying:
[I]t should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified “matters” is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an overtechnical or hypercritical way. As was pointed out in Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No. 3) [(1980) 47 FLR. at 173], the power conferred by s. 155(1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s. 155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to anyone of the “matters” which the notice identifies.
As to the nature of the recipient of a coercive notice, in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; (2007) 240 ALR 135, Bennett J at [40] noted that context including, relevantly, the nature of Telstra as a recipient (being a well-advised company with significant experience), and the fact that the notice had been issued following a course of correspondence concerning the subject matter of the notices, assumed relevance. Bennett J said at [40] that such “[c]ontext may make something certain that, in the abstract, is uncertain”.
In AB Pty Ltd, Flick J observed at [50]:
Specificity in language may have regard to the knowledge of the person upon whom a notice is served... The "clarity" of a notice served under s 264 of the [Income Tax Assessment] 1936 Act, it has been said, “must be considered against the background of the knowledge and circumstances of the Respondent to the Notice and the contextual facts”... A document may be specified if the description of the document required to be produced is sufficiently certain to identify it to the person upon whom a notice is served — even if that description may mean little (if anything) to a person without such knowledge.
Likewise, in Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCA 1667; (2004) 140 FCR 192, Conti J at [29] noted that:
[I]n determining whether a statutory notice sufficiently discloses the relationship between the information sought and the "matters" identified in the notice, it is permissible to take account of the identity of the recipient and the knowledge available to that person. What may be required of a notice directed to an individual member of the public might be different from what must be included in a notice directed to a large commercial organisation whose officers can be expected to be familiar with the regulatory framework affecting their organisation.
APPLICANT’S SUBMISSIONS
The applicant submits that the Notice does not specify:
(a)what conduct is being investigated;
(b)who allegedly undertook the conduct on behalf of the Union;
(c)where the conduct occurred;
(d)what third parties were involved in the alleged contraventions; or
(e)other than by reference to a period in excess of 8 months, when the conduct was alleged to have occurred.
The applicant submits that the bullet points set out in the Notice are no more than a paraphrasing of the words of the relevant provisions of the Act. They do not contain any particulars of the conduct in question.
In oral submissions, the applicant submitted that the Notice does not specify the matter or the statutory purpose to enable the applicant to determine that the respondent is entitled to rely on the powers in s 712 of the Act.
The applicant submits the highest the Notice rises in respect of particularisation of conduct is the words: “The allegations relate to action taken, or organised, by the CFMEU and/or the CFMEU Representatives that prevented, or prejudiced, Marda Dandhi Downunder Pty Ltd (Business) from performing work on commercial construction sites in Victoria”. The applicant submits that formulation is vague and ambiguous. It is unclear, in the applicant’s submission, whether the alleged prevention arose by physical acts (ie, industrial action or pickets), threats, arrangements or agreements with other third parties. This, in the applicant’s submission, is important because such matters may affect whether the events being investigated could constitute a contravention of the Act or different legislation.
The applicant submits that it is also unclear whether the Business had any lawful entitlement to engage in such work. That is, it is unclear whether it is alleged that existing contracts to perform work were interfered with or whether the Business had difficulty obtaining such contracts. The applicant submits that the vagueness is only heightened by the use of the word “prejudiced”. The applicant submits that how or what constituted the prejudice is not stated.
The applicant submits that as the Notice does not describe the conduct that is being investigated, it is impossible for the applicant, or any objective observer, to tell if the actual events being investigated could constitute contraventions of the Act.
The applicant submits that the Notice does not specify the nature of the conduct being investigated such that the applicant is unable to ascertain what, if any, relationship the documents have to the “matter” being investigated. In oral submissions, the applicant submitted that the conduct that occurred at the site was not particularised in the Notice and as such, the applicant does not know the relevance of the site to the matter.
The applicant submits that the failure to specify the person or persons whose conduct is being investigated or the nature of the conduct undertaken makes it impossible for the applicant as recipient of the Notice to determine whether the documents sought are related to the investigation being undertaken.
CONSIDERATION
For the reasons that follow, the Notice is valid and the applicant must comply with it.
The first three principles identified by Katzmann J in 85 Degrees at [20]-[23] and referred to above to be applied when considering the validity of the Notice do not raise a very demanding threshold of particularity. All that is required is for the Notice to set out that it has been issued under s 712 of the Act for the purpose of investigating whether identified provisions of the Act have been complied with. The fourth principle identified by her Honour is to be approached in the manner confirmed by authority, being that the terms of the Notice are to be read in a “non-technical and fair reading of its terms” to determine whether the categories are reasonably clear and have a relationship to what is being investigated.
I do not accept the applicant’s submission that the Notice is invalid because it does not specify:
(a)what conduct is being investigated;
(b)who allegedly undertook the conduct on behalf of the applicant;
(c)where the conduct occurred;
(d)what third parties were involved in the alleged contraventions; or
(e)when the conduct was alleged to have occurred.
It is important to understand that the Notice has been issued as part of an investigation by the respondent into the applicant’s conduct. The respondent, at this point in time of the investigation, is not required to identify and particularise specific acts. The applicant’s submissions invite an overly-technical and hyper-critical dissection of the Notice without any regard to relevant contextual matters.
The overarching complaint by the applicant is that the Notice “does not specify the nature of the conduct being investigated”. That, in my opinion, is not correct. The Notice specifies that the conduct being investigated is whether the Act has been contravened by reason of the applicant taking, or organising action, that prevented or prejudiced the Business from performing work on commercial construction sites in Victoria.
The authorities to which I have referred to above make clear that the Notice does not have to descend into the granular detail submitted by the applicant. The particularity sought by the applicant goes far beyond what is required by the authorities. The applicant’s submissions also ignore the important contextual consideration that the Notice seeks documents for the purpose of an “investigation”. The investigative power authorises production that may be both wide in scope and unspecified in subject matter: Pyneboard at 376. The need for a non-technical and fair approach to construing notices is due to the recognised context that an investigation may be at an early or insipid stage. A regulator such as the FWO is not required to have a detailed assessment of the context in which any contraventions may or may not have occurred, or the particulars of such context, with the very point of the investigation being to determine what occurred, who allegedly took action (if applicable), and the consequences (if any). The information and documents sought in the Notice may be necessary to fill in gaps of information, or to elucidate matters which are unclear in the investigation.
I also do not accept the applicant’s submissions that it is “impossible” for the applicant to understand the Notice and the relevance of the documents sought to the investigation. There is no doubt and no dispute that the applicants understood from the Notice which documents the respondent required for production. Counsel for the applicant stated in the course of the hearing the following:
The complaint from the union is it’s unable to tell from the face of the notice whether the first requirement as to there being a valid matter or purpose is made out.… it is unable to see the connection between that matter and the document sought, but it knows what documents are being sought. This isn’t a clarity issue where it says, “We don’t know what documents are caught by this notice”.
The evidence is that the applicant, in communications with the respondent, sought further time to comply with the Notice which it sought to be “re-issued in the same terms” and the undertaking given by Mr Vroland to the Court, in his affidavit, that the applicant will preserve the documents that are answerable to the Notice pending the outcome of this proceeding.
The authorities referred to above make clear the Notice is to be construed objectively, taking into account relevant contextual matters such as the applicant’s prior compliance with the October NTP, correspondence between the parties relating to the investigation and the nature of the applicant as a trade union which is well resourced, and a sophisticated industrial organisation that is well familiar with the Act.
I now consider the validity of the Notice by reference to the four principles identified by Katzmann J in 85 Degrees.
As to the first principle, the Notice confirms that the respondent is a Fair Work inspector appointed under s 700 of the Act, and that he is “investigating whether the CFMEU and its officers, officials and/or employees... contravened provisions of the FW Act between 18 February 2021 and 31 October 2022”. That investigation is stated to relate to “action taken, or organised, by the CFMEU and/or the CFMEU Representatives that prevented or prejudiced Marda Dandhi Downunder Pty Ltd (Business) from performing work on commercial construction sites in Victoria”.
As to the second principle, the top of the Notice contains in large bold text that it has been issued “Pursuant to section 712 of the Fair Work Act 2009”.
As to the third principle, the Notice identifies the seven provisions of the Act that the respondent is investigating the applicant’s compliance with, namely:
(a)taking adverse action against the Business because it had a workplace right, or had (or had not) exercised a workplace right in contravention of s 340 of the Act;
(b)taking, or threatening to take, action with the intent to coerce the Business to exercise or not exercise a workplace right in contravention of s 343 of the Act;
(c)knowingly or recklessly making false or misleading representations about the Business’s workplace rights in contravention of s 345 of the Act;
(d)discriminating against the Business because of a particular type of workplace instrument, or because it proposed that its employees be covered by a particular type of workplace instrument, in contravention of s 354 of the Act;
(e)taking, or threatening to take, action with the intent to coerce a third person to not engage the Business in contravention of s 355 of the Act;
(f)taking, or threatening to take, action with the intent to coerce a third person to take adverse action against the Business in contravention of s 362 of the Act;
(g)permit holders (who were exercising, or seeking to exercise, their rights) hindering or obstructing the Business, or its employees, or otherwise acting in an improper manner in contravention of s 500 of the Act.
As to the fourth principle, the Notice sets out three discrete categories of documents being sought. Each of those categories is expressly limited in scope, date range and location. The relationship between those categories and the matters being investigated is sufficiently clear for the following reasons.
The first category requires production of records, documents or communications relating to the Business, negotiating a renewed enterprise agreement. The making of, and related bargaining for, an enterprise agreement is a “workplace right” under s 341(1)(b) of the Act. Further, an enterprise agreement is a “workplace instrument" under s 12 of the Act.
Each of s 340, 343 and 345 of the Act, which are the sections of the Act to which the respondent’s investigation pertains, relate to the Business’s “workplace right”. Further, s 354 of the Act, one of the sections to which the respondent’s investigation pertains, relates to the Business being covered by a particular type of “workplace instrument”.
The first category of documents sought can therefore be seen as referable to the matter being investigated. That is, they are relevant as to whether the Business exercised, or sought to exercise, a workplace right and whether it was covered by a particular workplace instrument.
The second and third categories relate to the attendance and communications of the applicant and its representatives and delegates, including identified permit holders, at a specific construction site in Victoria, namely the Monash Freeway Upgrade – Stage 2 Project at O’Shea Road, Berwick (MFU2) including communications with CPB Contractors Pty Ltd, Joel Shackleton and Gerry McCrudden regarding the Business and its employees.
Section 355 of the Act, which is a section to which the respondent’s investigation pertains, relates to whether action was taken or threatened, with intent to coerce a third person not to engage the Business. Section 362 of the Act, which is another section to which the respondent’s investigation pertains, relates to whether action was taken or threatened, with intent to coerce a third person to take adverse action against the Business. Section 500 of the Act, which is also being investigated, relates to whether permit holders hindered or obstructed the Business or otherwise acted in an improper manner, when exercising or seeking to exercise rights of entry.
In my view, in circumstances where the investigation concerns whether the applicant “prevented, or prejudiced” the Business “from performing work on commercial construction sites in Victoria”, the documents sought in the second and third categories are clear and relate to the subject matter of the investigation. That is, they are relevant as to whether action was organised, taken, or threatened by the applicant through its representatives or delegates, in relation to the Business at the MFU2 construction site. Section 362 of the Act imposes a contravention if the applicant has advised, encouraged, or incited a third person to take such action, therefore any documents recording communications and the like from the applicant and its representatives or delegates are relevant.
DISPOSITION
The applicant’s originating application dated 24 January 2025 will be dismissed. The applicant will pay the respondent’s costs of the proceeding.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 28 March 2025
ANNEXURE A
GPO Box 9887, Melbourne VIC 3001
Reference: MAT-25657-L5Ml
Date Notice Issued: 19 December 2024
NOTICE TO PRODUCE RECORDS OR DOCUMENTS
Pursuant to Section 712 of the Fair Work Act 2009
To: Construction, Forestry and Maritime Employees Union
(ABN: 17 402 743 835)
Att: The Proper Officer
Of: Level 6, 540 Elizabeth Street
Melbourne VIC 3000
I, Will Brandon-Baker, a Fair Work Inspector appointed under section 700 of the Fair Work Act 2009 (Cth) (FW Act), require the Construction, Forestry and Maritime Employees Union (CFMEU), to produce to me the records or documents set out in paragraphs 1 to 3 below that are in the custody, possession or control of the Construction and General Division of the CFMEU including any Divisional Branches.
COMPLIANCE PURPOSE OF THE DOCUMENTS SOUGHT IN THE NOTICE
I am investigating whether the CFMEU and its officers, officials and/or employees (collectively, CFMEU Representatives) contravened provisions of the FW Act between 18 February 2021 and 31 October 2022. The allegations relate to action taken, or organised, by the CFMEU and/or the CFMEU Representatives that prevented, or prejudiced, Marda Dandhi Down under Pty Ltd (Business) from performing work on commercial construction sites in Victoria.
Specifically, I am investigating whether the CFMEU and CFMEU Representatives have contravened the FW
Act by:· taking adverse action against the Business because it had a workplace right, or had (or had not) exercised a workplace right in contravention of section 340 of the FW Act;
· taking, or threatening to take, action with the intent to coerce the Business to exercise or not exercise a workplace right in contravention of section 343 of the FW Act;
· knowingly or recklessly making false or misleading representations about the Business' workplace rights in contravention of section 345 of the FW Act;
· discriminating against the Business because of a particular type of workplace instrument, or because it proposed that its employees be covered by a particular type of workplace instrument, in contravention of section 354 of the FW Act;
· taking, or threatening to take, action with the intent to coerce a third person to not engage the Business in contravention of section 355 of the FW Act;
· taking, or threatening to take, action with the intent to coerce a third person to take adverse action against the Business in contravention of section 362 of the FW Act; and
· permit holders (who were exercising, or seeking to exercise, their entry rights) hindering or obstructing the Business, or its employees, or otherwise acting in an improper manner in contravention of section 500 of the FW Act.
RECORDS OR DOCUMENTS REQUIRED FOR PRODUCTION
The records and documents are as follows:
1. All records, documents or communications relating to requests made by, or on behalf of, the Business to negotiate with the Business for a renewed enterprise agreement during the period 15 May 2022 to 31 October 2022 (Relevant Period).
2. All records, documents or communications relating to the attendance of CFMEU Representatives at the Monash Freeway Upgrade - Stage 2 project, O'Shea Road Berwick, VIC 3806 (MFU2) during the Relevant Period, including:
a. entry notices issued to CPB Contractors Pty Ltd;
b. reports, file notes, memorandums, diary entries, text messages or emails relating to actual or planned attendances at MFU2;
c. all videos (including body worn camera footage), photographs or audio recordings made by CFMEU Representatives while on, directly adjacent to or otherwise within 50m of the periphery of MFU2;
d. communications from, or including, Joel Shackleton and Gerry McCrudden regarding the Business and its employees; and
e. communications between CFMEU Representatives and CPB Contractors Pty Ltd concerning the Business, the Business' employees and/or MFU2 attendances.
3. All records, documents or communications during the Relevant Period between CFMEU
Representatives and any CFMEU delegate working at MFU2 relating to the Business.
You are required to produce the above records and/or documents at [email protected], by post at GPO Box 9887, Melbourne VIC 3001, or in person at Level 12, 414 La Trobe Street, Melbourne VIC 3000 by 5.00pm AEDT on Friday 31 January 2025.
This Notice seeks the production of original records or documents, or if the original is not available, a copy or duplicate of the record or document.
You may be liable to a civil remedy under the FW Act for giving false or misleading information or producing false or misleading documents. It is also a serious offence under the Criminal Code (Cth).
Failure to comply with this Notice, without reasonable excuse, is a contravention of subsection 712(3) of the FW Act and may attract a maximum penalty of $495,000 for companies that are not small business employers (with 15 or more employees), $99,000 for companies that are small business employers (with less than 15 employees) or $19,800 in respect of an individual.
In this Notice:
· the word "communications" includes file notes, meeting minutes, phone call notes or logs, letters, emails, and messages via messaging services and applications;
· the word "document" includes:
(a) anything on which there is writing;
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c) anything from which sounds, images or writings can be reproduced; and
(d) a map, plan, drawing or photograph;· the word "includes" or "including" means "including but not limited to";
· the term "officer" means an official of the association or a delegate or other representative of the association (as per section 12 of the FW Act);
· the term "official" means a person who holds an office in, or is an employee of, the association (as per section 12 of the FW Act); and
· the word "record" includes information stored or recorded by means of a computer.
Should you require further information or wish to discuss this Notice, please contact me on (07) 3404 4714,
or by email at [email protected]. Please quote the reference number MAT-25657-LSML
Will Brandon-Baker
Fair Work Inspector
Fair Work Ombudsman
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