Debbie Butler v Qantas Airways Limited

[2011] FWA 1579

FAIR WORK AUSTRALIA

DECISION

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

Debbie Butler
v
Qantas Airways Limited
(RE2011/2605)

and

Debbie Sutton
v
Qantas Airways Limited
(RE2011/10)

COMMISSIONER CLOGHAN

PERTH, 11 MARCH 2011

Application for an order to access non-member records.

[1] On 7 February 2011, Ms Debbie Butler (“the First Applicant”) made application for an order to access non-member records or documents held by Qantas Airways Ltd (“the Employer”) (RE2011/2605).

[2] On 22 February 2011, Ms Debbie Sutton (“the Second Applicant”) made an identical application for an order to access non-member records or documents held by Qantas Airways Ltd (“the Employer”) (RE2011/10).

[3] The applications are made pursuant to s.483AA of the Fair Work Act 2009 (“the Act”).

[4] The First and Second Applicants are union organisers with the Australian Municipal, Administrative, Clerical and Services Union (ASU).

[5] The First and Second Applicants hold entry permits R2008/3056 and R2008/10 respectively. No conditions have been imposed on the entry permits.

[6] Both Applicants are seeking access to records or documents of non ASU members employed by the Employer whose employment is or was covered by the Australian Services Union (Qantas Airways Limited) Enterprise Agreement 7 and/or the Australian Services Union (Qantas Airways Limited) Agreement 8 and who are or were employed as part-time Customer Service Agents at Perth Domestic Airport.

[7] In view of the nature of the applications, I determined that the Employer should be given the opportunity to be heard in these applications.

[8] A conference of the parties was held on 22 February 2011. A hearing into the applications was held on 1 March 2011. The parties agreed that both applications ought to be heard together.

[9] At the conclusion of the hearing, and with the consent of both parties, Orders PR507265 and PR507266 were issued on 2 March 2011.

COMMISSIONER

Appearances:

Ms D Butler of the Australian Municipal, Administrative, Clerical and Services Union.

Mr J Blackburn Barrister with Ms McConnell of Blake Dawson for Qantas Airways Limited.

Hearing details:

2011:

Perth

1 March

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Debbie Butler applied for an order to access non-member records held by Qantas Airways Limited. The application was brought pursuant to section 65Z of the Competition and Consumer Act 2010. The applicant sought access to the records to assist in a separate proceeding in which she alleged Qantas had engaged in misleading or deceptive conduct. Qantas opposed the application, arguing that the records were confidential and their disclosure would cause significant harm to the company's commercial interests.

The court had to determine whether the records were within the scope of section 65Z and whether the applicant's need for the records outweighed the harm that would be caused to Qantas if they were disclosed. The court considered the nature and purpose of the records, the extent to which they were relevant to the separate proceeding, and the potential harm to Qantas if they were disclosed. The court also considered whether there were alternative means by which the applicant could obtain the information she required.

The court found that the records were within the scope of section 65Z and that the applicant's need for them outweighed the harm to Qantas if they were disclosed. The court noted that the applicant had already obtained significant information from other sources and that the records in question were likely to provide only limited additional information. The court also found that the potential harm to Qantas was not significant enough to outweigh the applicant's need for the records. The application was therefore granted, and the applicant was ordered to pay Qantas's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established