Diack
[2016] FWCD 116
•8 January 2016
[2016] FWCD 116
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| Flight Attendants’ Association of Australia | |
| (R2015/221) | |
| MR ENRIGHT | MELBOURNE, 8 JANUARY 2016 |
s.236(1) Request to General Manager to direct organisation to deliver copy of register of
members
Introduction
[1] This decision concerns a request for a direction under s.236(1) of the Fair Work
(Registered Organisations) Act 2009 (the Act) by Ms Miranda Diack who is a member of the
Flight Attendants’ Association of Australia (the Association).
[2] The Association consists of two branches or ‘Divisions’, namely, the International
and the National Division. Members and officers of the Association are attached to one or
other of those Divisions. Ms Diack is a member of the International Division and the
Divisional Secretary of that Division is Mr Michael Mijatov. Ms Diack’s request for a
direction under s.236 of the Act relates to the Register of Members required to be kept by
the Association.
Background
[3] On 5 October 2015 Ms Diack wrote to the Fair Work Commission (the
Commission) to request the Commission’s ‘input in assessing [her] request under S236 of
the Registered Organisations Act 2009 (sic)’. Ms Diack wrote, in part
I am a financial member of the Flight Attendants Association of Australia (FAAA)
th
and on the 25 August 2015 I emailed a request to the Secretary of the FAAA for access to the Register of Members under S230 S231 (sic) of the Fair Work Registered
Organisations Act 2009 (sic)…
My interpretation of the act was to firstly respectfully request access to a copy of the
list and since I am based and reside in Brisbane, Queensland and the offices of the
FAAA are in Sydney, NewSouth (sic) Wales, my ability to access “the office or
premises where the register is kept” is limited. So for convenience I requested an
electronic copy via email, or failing that, a hard copy to be mailed to me. Section 236
of the act indicated that the general manager could direct access in these formats so it
1
didn’t seem an out of the ordinary request for me to state my preference this way.
[4] Ms Diack continued
[2015] FWCD 8306
It was my belief that the protocol of any association, and in this case the Secretary of
my own Association: the FAAA, could be to have respectfully replied to my email,
asking for my reasons for making the request and to clarify the Act and the availability
of access to this information. This was not the case.
….
Therefore, I request[ed] access to the Register of Members for the following reasons:
1. To clarify and correct recent newsletters that contained incorrect information.
2. To provide written information detailing Member Services and Programs we are
wanting to implement and to get feedback from the members regarding this.
3. As per the FAAA Rule 8 (a) the International Division requires two (2) elected
councillors from Virgin Australia International. As mentioned previously, I do not
have the opportunity to work with, know or have contact with these VA members and
so satisfy the Rule for election it would seem fair and reasonable to have access to
2
these members.
[5] Amongst other things, Ms Diack attached a document she identified as an email to
the Divisional Secretary sent on 25 August 2015 requesting access to the register of
members. The email was sent to [email protected] and marked attention to Michael Mijatov.
The content of the email reads as follows:
Dear Michael
As a financial member of the FAAA, I am formally requesting access to the latest
available copy of the Register of Members that is required to be kept under Section
231 of the Registered Organisations Act 2009. I require the list for the financial year
ending June 2015. [emphasis added]
I am sure that you will accord me this request as I believe my Union supports
democratic principles, however if my request is denied, I will initiate the process as
defined in Section 236 of the Registered Organisations Act 2009. It is my preference
that a copy of this Register containing the names, postal addresses and email addresses
of all members be sent via email to [email address].
I would also accept a hard copy sent via registered mail to the address below:
[postal address provided].
I request that this material is provided within the next 14 days.
Looking forward to your positive response.
Regards
Miranda Diack
FAAA Member
….
[2015] FWCD 8306
[6] Ms Diack attached a second attachment which appeared to be an interim response
from Mr Mijatov dated 27 August 2015 in response to Ms Diack’s request of 25 August
2015. Mr Mijatov’s response reads in part:
I am concerned with the implications of compliance with your request, namely that,
among other things, the names, addresses and email addresses of members could be
distributed by a recipient to any person without restriction. Handing over the
membership list would, prima facie, fly in the face of federal privacy protections.
FAAA members whose personal information would be revealed by such disclosure
would certainly be entitled to feel real concern that these personal details could be
supplied without restriction…
…
In the circumstances, I propose to obtain legal advice regarding your request,
following which I will ask the Privacy Commission and the General Manager of Fair
Work Australia (sic) for their guidance. I propose also to consult FAAA members and
to seek their views about the potential violation of their privacy.
I will advise you in due course of the results of those inquiries.
[7] Ms Diack attached a third copy of correspondence dated 17 September 2015 which
on its face appeared to be Mr Mijatov’s response to Ms Diack’s request for access. The
response reads as follows:
Dear Miranda,
Further to my response to you by email on 27 August 2015, I wish to inform you that
the Divisional Executive discussed your request at its meeting on 15 September 2015.
The Executive considered the following points:
1. Overwhelming feedback from members opposed to handing their sensitive private
information to you and your group.
2. The lack of reasons why you want this sensitive information and what the
information would be used for.
3. The serious potential consequences to our members’ privacy that could flow by
handing this personal information to you.
4. The fact that our members’ information could be used for a variety of undisclosed
purposes and that there would be no restriction as to who would subsequently receive
this highly sensitive information.
In these circumstances the Executive has refused your request and we will be
informing members accordingly.
Kind regards
Michael Mijatov
[8] Ms Diack also attached copies of what appeared to be a number of the Association’s
member newsletters, dated 26 August and 1 and 17 September 2015, in which Mr Mijatov
appeared to have corresponded with members of the International Division of the
[2015] FWCD 8306
Association. Among other things, the newsletter dated 17 September 2015 stated that a
leader of a group entitled either ‘the friendly fliers’ or ‘Reclaim your FAAA2016’ had
demanded that the Association hand over member names, residential addresses and email
addresses to the group. It further stated that the group failed to articulate reasons for the
request, nor had it identified what the information would be used for.
[9] On 7 October 2015, the Commission wrote to Ms Diack seeking further clarification
of certain matters. Ms Diack was advised that the matter had been delegated to me for
3
determination via ss.343A(3)(e) of the Act and set out the relevant parts of s.236.
[10] Ms Diack was informed that she had not provided sufficient information to persuade
me to issue a direction. Ms Diack was invited to provide further information regarding her
membership of the union, to particularise whether she relied on ss.236(1)(b)(i) or
ss.236(1)(b)(ii) of the Act and to make further submissions about whether I should exercise
4
my discretion under s.236(1).
[11] Ms Diack’s original correspondence was forwarded to Mr Mijatov, Divisional
Secretary of the Association on the same day. Mr Mijatov was advised that the General
Manager had received correspondence from Ms Diack requesting a direction under s.236 of
the Act.
[12] A series of phone conversations subsequently took place between Mr Mijatov and
staff of the Commission in which Mr Mijatov sought to provide additional information
regarding the request for a direction. Similar conversations occurred between Ms Diack and
staff of the Commission. Both Mr Mijatov and Ms Diack were invited to articulate their
concerns and provide any supplementary information in written submissions addressed to
the Delegate of the General Manager of the Commission.
[13] On 26 October 2015, Ms Diack replied to the Commission’s correspondence of 7
October 2015. She stated that she relied on the grounds contained in both ss.236(1)(b)(i) and
5
| (ii). Ms Diack set out reasons in support of her request. | Ms Diack maintained that the |
subsequent requests in the email regarding the format of the Register were preferences only
and purely for ease of access since she worked and resided in Queensland and the
Association’s offices are in NSW; and ‘[her] primary and initial request [was] clearly for
6
access.’
[14] On the basis of evidence provided by Ms Diack, I am satisfied that she is a member
of the Association.
[15] Further, on the basis of the material provided by Ms Diack, I concluded that the
jurisdiction to issue directions under s.236 of the Act was enlivened. As a result, the
Commission wrote to Mr Mijatov on 13 November 2015 on my behalf advising him of Ms
Diack’s application. The Commission offered Mr Mijatov the opportunity to respond to Ms
Diack’s request and attached a copy of the material lodged by Ms Diack.
[16] Mr Mijatov took up that opportunity. A submission was lodged by Mr Jim Nolan,
Counsel for the Association on 30 November 2015. The Association submission opposed
the issuing of a directive. Among other things, the Association argued that:
[2015] FWCD 8306
…the FAAA is prepared to permit Ms Diak access to its membership register for the
purposes of inspection only. It refused to accede to her request which was for the
names, postal addresses and email addresses of all members be sent via email to
7
her.
[17] The submissions of the Association contended that Ms Diack had not been refused
access to the register; and, additionally, there were no reasonable grounds for seeking access
8
| to the copy. | Consequently, it was the view of the Association that I should not exercise my |
discretion to issue a direction.
[18] In the interim period, a number of submissions were lodged by people identifying
themselves as Association members. The submissions varied in substance, however by and
large the members expressed their opposition, some in stronger terms than others, to the
release or distribution of any of what were generally described as ‘personal details’ that
were held by the Association. Some members objected to personal details being distributed
to anyone other than the Union Executive; others to their distribution to Miranda Diack in
particular.
[19] In total, between 18 November and 9 December 2015, 72 objections and 2
submissions in favour of the application were lodged with the Commission and I have
carefully examined each one of them. In addition, Ms Diack lodged a submission on 29
November 2015 in which she formally objected to correspondence sent by Mr Mijatov to
certain members regarding her application.
[20] There is a broader context to this application which is worth noting at this point. It is
apparent from previous disputes lodged with the Commission and from public media
coverage that there is long-standing internal dispute within the International Division of the
Union between two main groups or ‘factions.’ It appears that Mr Mijatov represents or is
associated with one particular ‘faction’ and Ms Diack, the other. Correspondence from both
Ms Diack and Mr Mijatov in relation to this matter has touched upon this dispute.
[21] I note here that while I have carefully considered all of the available and relevant
material, including each of the members’ objections and other correspondence submitted in
relation to the matter, I do not propose to set out every aspect of it in this decision.
[22] On 4 December 2015, Ms Diack responded to Mr Nolan’s submission.
[23] In relation to the issue of refusal of access, Ms Diack submitted
At no time did Mr Mijatov indicate to me that I could have any access to the
membership register at all as has been indicated by both my request and his subsequent
email denial. This statement to FWC that they will permit me access without actually
9
letting me know that they will, is disingenuous is the extreme...
[24] Ms Diack reiterated concern about member objections to the Commission being
‘solicited’ by Mr Mijatov.
Legislative Framework
[25] Section 236 of the Act relevantly provides
[2015] FWCD 8306
236 General Manager may direct organisation to deliver copy of records
Register kept under section 230
(1) Where:
(a) a member of an organisation requests the General Manager to give a direction under this subsection; and
(b) the General Manager is satisfied:
(i) that the member has been refused access to the register required to be kept under section 230, or part of it, at the office or premises where the
register or part is kept; or
(ii) that there are other grounds for giving a direction under this
subsection;
the General Manager may direct the organisation to deliver to the General Manager a
copy of the relevant records certified by declaration by the secretary or other prescribed
officer of the organisation to be, as at a day specified in the certificate that is not more
than 28 days before the first-mentioned day, a correct statement of the information
contained in the register for the member to inspect at a specified registry, and the
organisation must comply with the direction.
Note: This subsection is a civil penalty provision (see section 305)
Copy kept under section 231
(2) Where:
(a) a member of an organisation requests the General Manager to give a direction under this subsection; and
(b) the General Manager is satisfied that: (i) the member has been refused access to the copy of the register required
to be kept under section 231; and
(ii) the member has reasonable grounds for seeking access to the copy;
the General Manager may direct the organisation to deliver to the General Manager a
copy of the copy, and the organisation must comply with the direction.
Note: This subsection is a civil penalty provision (see section 305)
(3) A direction of the General Manager given under this section must be in writing and must specify the period within which the relevant copy must be delivered to the
General Manager. The period must not be less than 14 days after the direction is given.
[2015] FWCD 8306
(4) A copy of a record delivered under subsection (1) or (2) may be in the form of a hard copy or, if the General Manager agrees, in electronic form.
(5) Where the General Manager receives a copy of a document from an organisation under this section, the General Manager may, if the General Manager considers it
appropriate in the circumstances, provide a copy of that document to a member of the
organisation.
Subsection 236(1)(b)(i) – refusal of access to the register
[26] As indicated above, ss.236(1)(b)(i) provides that the General Manager must be
satisfied that a member has been refused access to the register (or part of it) required to be
kept under s.230 at the office or premises where the register is kept.
[27] Similarly, ss.236(2)(b)(i) provides that the General Manager (or delegate) must be
satisfied that the member has been refused access to the copy of the register required to be
kept under s.231.
[28] Turning to the related provisions, s.230 requires, amongst other things, a registered
organisation to keep a register of its members. The subsection mandates that the register
show the names and postal address of each member; and whether the member became a
member under an agreement entered into under rules made under s.151(1).
[29] Subsection 231(1) provides that an organisation must keep a copy of its register as it
stood on 31 December in each year for a period of seven years. Section 231(2) provides that
organisation must keep for seven years, a copy of the register as it stood on the day on
which the roll of voters for a ballot for an election for office is to be closed.
[30] Significantly, Ms Diack’s email of 25 August 2015 requested access to the latest
available copy of the Register of Members that was required to be kept under s.231 of the
Act. Ms Diack did not request access to the register of members required to be kept under
ss.230(1)(a).
[31] Ms Diack submitted in her correspondence of 27 October 2015 that she was in fact
relying on s.230 of the Act; and that she referred to s.231 in her email to the Association as
she was unsure how recent a copy was available and consequently made reference to the
requirement for documents to be kept for 7 years.
[32] It may well be the case the Ms Diack intended to, and was in fact relying on, s.230.
However the fact remains that Ms Diack’s request for access referred to s.231 and not s.230.
Section 236(1) clearly specifies that the member must have been refused access to the
register, or part thereof, required to be kept under s.230.
[33] I further note that the Association, in its submission of 30 November 2015, indicated
to the Commission, but not directly to Ms Diack, that it would be prepared to allow Ms
Diack access to inspect the register, but not to accede to her request to provide names, postal
addresses and email addresses of all members to be sent via email to her. The Association
10
rejected any right by Ms Diack to make copies of information contained in the register.
[2015] FWCD 8306
The Commission provided Ms Diack with a copy of the Association’s submission. In
response to this Ms Diack submitted:
If I look at something through the window of a shop, I can see it but I don't have access
to it, so this so-called access spoken of by Mr Nolan isn't really access at all. The
accessibility of membership details under the act seems to be to allow me to use them
11
for contacting the membership, not just looking at them.
[34] On the basis of these submissions, it is clear that the Association is not prepared to
email Ms Diack the register or to provide her with a copy of the register. However, the
Association has indicated that it would be prepared to allow Ms Diack to inspect the
register. Therefore, I am not satisfied that the Association has refused to allow her to access
the register required to be kept under s.230 at its office or premises, in accordance with
s.236(1)(b)(i).
[35] I therefore do not consider it necessary to consider any further points raised in
submissions made on behalf of the Association in relation to ss.236(1)(b)(i).
[36] I now turn to the question of whether there are other grounds for giving a direction
pursuant to ss.236(1)(b)(ii).
Subsection 236(1)(b)(ii) – other grounds
[37] Subsection 236(1)(b)(ii) provides that the General Manager be satisfied that there
are “other grounds” for giving a direction under this subsection.
[38] Ms Diack set out four grounds as to why I should issue a direction under
ss.236(1)(b)(ii). Ms Diack’s reasons in support of her request are set out below.
1. As part of the democratic Union process, its (sic) important that correct and
timely information be accessible to all members. The Members of the FAAA are a
remote workforce with bases in 3 separate states. Members also reside in all states of
Australia and some even live or spend large portions of their time off in other
countries. In addition, this membership covers two separate airlines. Without access to
the Register of Members, our ability to share relevant information, inform members
about services and support programmes we would like support to implement, and our
ability to gain feedback from the membership is severely restricted. Our offices of
work outside the aircraft is assessed generally only directly prior to sign on before a
flight and in the case of the Sydney ( our largest base), this sign on area is in the
restricted airside areas so access is restricted to those who are directly signing on for
work. This applies even more so to our Virgin Australia Members as they are not
employed by the same company and we have no access to their workplace and
workplace at all.
2. I am also seeking access to the Register of Members for the purpose of finding
like-minded members who may have an interest in running for election in 2016. I feel
this too is a proper and lawful purpose, however, without access to the contact
information I would not be able to canvas any interest. The situation is that once
nominations are closed, I would be able to get these addresses, but I would not then be
able to gather and nominate a team as nominations are already closed. This gives the
[2015] FWCD 8306current elected officials an enormous advantage as they have contact with the
members every day via members enquiries, the log of members and the email
database. I believe it is noteworthy that a number of casual vacancies have been filled
without any contact with the membership via newsletters. This shows that the contact
that the current officers have is an advantage. For a fair and democratic process,
access to the membership prior to nominations is crucial. It is a distinct disadvantage
to the membership if they are not aware that there would be an alternative group
running and that they can register for involvement with that group.
3. I am also seeking access to the Register of member for the purpose of
providing information that cannot be shared with members due to the nature of our
workplace. Cabin crew are in a unique position as we are in public spaces when at
work and it is deemed inappropriate to discuss our issues on the aircraft, which is our
primary place of work. Turn our rates are low even at membership meetings, probably
due to shift work, jet lag and different days off, so electronic and postal
communication allows information to be read and digested at a time of our members’
choosing.
4. The lack of access to our Virgin International members undermines our democratic
Union process as our Divisional council requires 2 divisional councillors from Virgin
Australia (FAAA Rule 8(A)). I intend to field candidates from Virgin International to
run in my team at the up coming (sic) elections and require access in order to find
willing candidates. My team do not want to be in the same position as the opposing
team in the 2012 elections where the 2 existing Virgin International Divisional
Councillors were elected unopposed then proceeded to endorse the incumbent team
12
using the authority of their elected positions to influence the members (MD10).
[39] The submission made on behalf of the Association rejected the grounds raised by Ms
| Diack. | |
| [40] | Among other things, the following was submitted on behalf of the Association: |
th
In her email dated October 24 , Ms Diack offers four grounds in support of her requests…. … It may be observed that the reasons are – in effect, a single reason and provide a
rationale for access to the membership registered which could equally apply to every
member of the organisations. The reasons are, in reality, a single reason – to prepare her
13
‘team’ or ‘ticket’ for the 2016 Divisional Elections.
[41] It was submitted that Ms Diack’s suggestion that she needs to canvass members to
recruit her own ‘team’ is disingenuous as ‘she nevertheless makes her submission
(expressly) on behalf of her ‘team’ - suggesting that a team has already been recruited.’ The
submission cited examples of a website and Facebook page purportedly associated with Ms
Diack through which she discusses union matters and communicates with members of the
14
Association.
[42] The submission also cited a number of cases dealing with s.236 and its predecessors;
from which Mr Nolan extrapolated the following general principles:
[2015] FWCD 8306
| | First, there is no ‘right of access to the membership Register but access is subject to |
| the conditions and limitations contained in the section: “…As a matter of statutory | |
| construction, we consider that s.268(12) [the predecessor to s.236] is not premised | |
| upon, nor does it confer upon a member of an organisation, a right of access to the | |
| register or members of that organisation.[Australian Liquor, Hospitality and | |
| Miscellaneous Workers Union [PR16689] AIRC Full Bench – Williams & Kaufman | |
| SDP, Roberts C, 12 April , 2002. para 40]. No untrammelled ‘right to inspect’ may be |
nd
gleaned from the 2 reading speeches [ALHMWU 47].
| | Secondly, the discretion is a broad one but confined by the statute: “…[the] pre- |
| conditions having been satisfied, the Deputy Industrial Registrar was allowed | |
| considerable latitude as to deciding whether to make or not to make a direction. In | |
| making that decision, she was confined only by the subject matter and objects of the | |
| WR Act38 and could not exercise that power with a view to achieving objects outside | |
| the purpose for which the discretion is conferred.” [ALHMWU 39 ] | |
| | Third, there is no ‘right’ to make copies: “as a matter of statutory construction, the |
| right to inspect that may be conferred under subsection (12) does not carry with it a | |
| right to take copies.” [ALHMWU 43] | |
| | Whereas once a direction under the subsection is made, the use or disclosure of the |
| information contained on the register may be “authorised by or under law” , (cf | |
| National Privacy Principles) – however the principles would arguably be relevant to |
15
the exercise of any discretion. [ALHMWU 42]
[43] The submission also implied, but did not specifically state that the members’ details
may be used for an improper purpose, referring to an observation by the Royal Commission
into Trade Union Governance and Corruption established on 13 March 2014 (the TURC)
16
regarding a previous election in the Association.
[44] I will separately address each point raised in Mr Nolan’s submission.
[45] I agree that there is no untrammelled ‘right of access to the register of members of
that organisation’. As the submission correctly points out, the Registrar (now the General
Manager) is invested with a discretionary power to direct an organisation to provide it with
a copy of its register for a member to inspect.
[46] Second, I concur that, historically, the Registrar (or other appropriate authority) has
been allowed latitude on deciding whether or not to make a direction. In making such a
decision, authorities suggest that I should be confined by the subject matter and objects of
the Act; and that I cannot exercise that power in favour of achieving objects outside the
purpose for which the discretion is conferred.
[47] However, I disagree with the submission that Ms Diack’s reasons ‘must be refused
since the reasons offered failed adequately to address the legal issues raised in these
submissions and in any event fail to address the discretionary reasons why they might be
relevant to the giving of a direction’.
[48] I refer here to Australian Federation of Air Pilots v Hamilton Island Enterprises Pty
17
| Ltd (No 2) | in which Moore VP stated |
18
The operation of the IR Act is dependent in a number of respects upon a knowledge of who constitutes the membership of a registered organisation whether of employees or
[2015] FWCD 8306employers. Such knowledge may be necessary to determine respondency to an award
(s.149(f)) and is necessary to conduct ballots of members for elections (s.210), ballots
for amalgamations (s 243) and ballots concerning industrial disputes (s 135). It is also
necessary to permit certificates to be issued establishing membership (s 291) which is
turn may be relevant in proceedings for the enforcements of awards or for gaining effect
to preference provisions in an award (s 122)…
…
The Register is given a power to authorise inspection so that others can exercise or
19
pursue rights given by or derived from the IR Act. …
[49] As is stated in the submission, a (if not the) primary reason for Ms Diack’s request is
to prepare her team or ticket for the 2016 Divisional election.
20
[50] The reasoning in Australian Liquor, Hospitality and Miscellaneous Workers Union
suggests that my decision should be informed by the subject matter of the application and
the objects of the Act. Section 5(3) of the Act sets out a number of standards which
employer and employee associations are required to meet in order to enhance relations and
reduce adverse effects of industrial disputation. These standards ensure, among other things,
that employer and employee organisations registered under the Act are representative of,
and accountable to their members; encourage members to participate in the affairs of
organisations to which they belong; encourage high standards of accountability of
organisations to their members; and provide for the democratic functioning and control of
organisations.
[51] It is difficult to conclude that a stated reason of preparing a ticket or team for
election is anything other than conducive to some or all of the standards set out above.
[52] Further, I note the decision of in Construction, Forestry, Mining and Energy Union v
Kavanagh: in which Heenan J concluded
…it seems that a member of a union seeking inspection for purposes associated with
union activities, including assessing prospects for a forthcoming election, would have
strong grounds to engage the exercise of the discretionary power to inspect by the
21
Industrial Registrar before an election is called…
[53] His Honour also noted
The predominant interest for an organisation, in the period leading up to and during an
election, is that its members should have a fair and free opportunity to consider whether
they wish to stand for office and, if so, to organise in a way to support their candidate
22
without disrupting the ordinary and proper function of the organisation…
[54] Further, in Australian Liquor, Hospitality and Miscellaneous Workers’ Union,
Senior Deputy Presidents Williams and Kaufman and Commissioner Roberts held
Mr Church’s [the applicant] stated reason was to use the inspection of the register for
electioneering purpose. We do not consider such a purpose to be an ulterior or
extraneous purpose…The fact that no other member has sought to inspect the register
and been refused access should not be used as a bar to Mr Church’s request. In our
view, therefore, if the reasons for wishing to inspect the register is electioneering,
[2015] FWCD 8306
23
making a direction under subsection (12) was within the Deputy Industrial Register’s 24
discretion.
[55] Ms Diack submitted that a direction under ss.236(1)(b)(ii) would assist her in
sharing information with members, informing members about services and programmes and
receiving feedback from the membership due the nature of the workplace and geographic
25
spread of its workforce.
[56] In response to this, it was submitted on behalf of the Association that ‘there is nothing
at all peculiar about geographically spread out workplaces’. Further, it was contended that on
the basis of Ms Diack’s reasoning, ‘every union member in Australia would be entitled to a
26
copy of his or her union membership register’.
[57] I emphasise here that I am required to consider each matter before me on its individual
merit. The fact that other members may be entitled, and wish to access a copy of the register
should not be a bar to Ms Diack’s request.
[58] In my opinion and notwithstanding the objections in submissions on behalf of the
Association, I find communication with members for the purpose of sharing information
about proposed services and support programmes to be in these circumstances compatible
with the objects and standards set out in ss.5(3) of the Act.
[59] In relation to the Association’s submission that Ms Diack or her ‘faction’ may have
27
| some association with another entity associated with another union, | I am not satisfied that |
any direct evidence has been provided demonstrating that Ms Diack’s request is for an
improper or unlawful purpose.
[60] I therefore conclude that Ms Diack has provided a satisfactory argument that there
are ‘other grounds’ for me to issue a direction in accordance with ss.236(1)(b)(ii). These
grounds include electioneering for the 2016 elections and communicating and sharing
information with members of the Association including information about proposed services
and support programmes.
Privacy considerations
[61] In addition to the issues addressed above, Mr Nolan raised concerns regarding
members’ privacy.
[62] It was submitted on behalf of the Association that:
…the request pays no heed to members’ concerns about privacy. If Ms Diak’s (sic)
request is agreed to, it will mean that union membership registers will be the only
significant data bases of personal information held under federal law which may be
passed on without let or restriction and in total disregard of members’ privacy. Such a
laissez faire approach to the personal privacy of union members would be out of step
with contemporary emphasis upon the protection of personal privacy in records of
personal information…
In light of recent history how could members be confident that their personal
information would not be given – covertly – to other unions or, worse still, bodies
[2015] FWCD 8306secretly controlled by them? Nor is there any restriction upon the material being handed
over to commercial or marketing entities, or to anyone for that matter…It cannot be
correct that the discretion to direct that the Register – at large – be handed over can be
exercised without regard to any legally binding safeguards. It must also be doubted that
28
the General Manager has the power to make such conditions.
[63] These concerns are echoed in a number of submissions of members lodged with the
Commission between 18 November and 9 December 2015.
[64] Ms Diack expressed a contrary view
Allowing me access to the Register of Members will allow an even playing field and my
request will have no negative impact on our members’ privacy but instead will allow
29
open and transparent communication for our entire membership.
[65] As privacy considerations appear to raise concerns for both the Division and a number
of its members, I consider it appropriate to examine the issue in some detail.
[66] I turn now to the Privacy Act 1988 (the Privacy Act) which among other things
regulates how personal information within Australia is collected, used and disclosed.
[67] ‘Personal information’ is defined in the Privacy Act as information or an opinion,
whether true or not, and whether recorded in a material form or not, about an identified
30
individual, or an individual who is reasonably identifiable.
[68] The Australian Privacy Principles (APPs) are contained in Schedule 1 of the Privacy
Act. The APPs outline how most APP entities (defined as agencies or organisations including
tribunals established or appointed for a public purpose by or under a Commonwealth agency)
handle, use and manage personal information. The principles cover, among other things, how
personal information can be used and disclosed.
[69] Australian Privacy Principle 6 deals with the use or disclosure of personal
information.
[70] Subclause 6.1 relevantly provides
6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose) the entity must not use or disclose the information for another purpose (the secondary purpose) unless: …
(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
[71] Subclause 6.2 further provides
6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if: ….
[2015] FWCD 8306
(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order….
[72] In relation to the application of subclause 6.2(b), I make the following observations.
[73] First, if an agency is required by law to use or disclose personal information, it has
no choice in the matter. However, if an agency is authorised by law to use or disclose
personal information, it has a discretion about whether it will do so.
[74] Second, if a law authorises a use for another purpose (that is, a purpose that is
different from that for which it is obtained) then the legislation must give a specific relevant
discretion for that purpose. A use is not authorised if the legislation provides for a general
discretion, such as ‘to do anything necessary or convenient to be done for or in connection
31
with’ their functions.
[75] In my view, the language of s.236(1) clearly and specifically provides me with a
discretion to direct an organisation to deliver to the General Manager a copy of the register
for a member to inspect at a specified location having being satisfied that the requirements
of ss.236(1) have been met. I am satisfied there is specific relevant discretion in the Act and
that the standard set out in subclause 6.2(b) of the APPs is met.
[76] This issue was considered in Australian Liquor, Hospitality and Miscellaneous
Workers Union, which, among other things, held that:
…as the making of a direction under subsection (12) would, in our view, render the use
or disclosure of the information contained on the register “authorised by or under law”,
32
the National Privacy Principles would not be contravened.
[77] It is important to note that s.236 is not the only provision in the Act authorising the
release of information about members .
[78] Part 2 of Chapter 7 of the Act provides for the conduct of elections for office and
other positions. Regulation 131 of the Fair Work (Registered Organisations) Regulations
2009 (the Regulations) applies in relation to elections for office in an organisation, other
than to an election for which the General Manager has granted an exemption.
[79] Regulation 131 provides
….
131(3) The electoral official conducting the ballot must make the roll available for
inspections and copying during ordinary business hours at the place where the official
carries out his or her duties in relation to the election, in the period starting the day after
the day when the roll was closed in accordance with paragraph (2)(c), and ending 30
days after the declaration of the result of the election.
33
131(4) The electoral official must make the roll available for inspection and copying by:
(a) a member of the organisation; and (b) any other person authorised by the electoral official.
[2015] FWCD 8306
131(5) The roll may be kept, and copies may be supplied, electronically. 131(6) If a copy of a roll, or a copy of part of a roll, is made or supplied under this regulation, a person must not use information in the roll for a purpose other than:
(a) a purpose in connection with the election; or (b) to monitor the accuracy of the information contained in the roll. Penalty: 10 penalty units.
[80] It is a reasonable assumption that that inspection and copying of rolls of voters,
(including details such as lists of names and addresses of members eligible to vote), would
occur on a not infrequent basis. In summary, the information being requested will be
available for inspection to Ms Diack and all other members of the Association, as well as
any other person authorised by the AEC, once nominations for the 2016 election have
opened. It could be argued that the concerns which have been expressed in this matter about
members’ privacy are equally relevant to these electoral circumstances.
[81] I note however that regulation 131(6) restricts the use of information in the roll to
those connected with the election or monitoring the accuracy of the information contained in
the roll. As submissions on behalf of the Association correctly pointed out, neither the Act
nor the Regulations provide for a similar restriction in relation to ss.236(1).
[82] It may be desirable that a direction under s.236 be subjected to similar restrictions.
However both the Act and the Regulations are silent on this matter.
[83] Nevertheless, in light of the concerns expressed by the Association and a number of
its members, on 7 January 2015, Ms Diack was contacted Commission staff on my behalf
and asked if she was prepared to agree to an undertaking that she would not use the
information contained in the copy of the register of members for purposes other than those
outlined in her submissions of 5 and 26 October 2015. That is: electioneering for the 2016
elections; and communicating and sharing information with members of the Association
including information about proposed services and support programmes.
[84] Ms Diack agreed to the provision of an undertaking and lodged a statutory
declaration with the Commission on the same day. The declaration provided
I will not use the information in the copy of the register of members for a purpose
other than the purposes stated in my submissions to the Commission of 5 and 26
October 2015, those being electioneering for the 2016 elections; and communicating
and sharing information with members of the Association including information about
proposed services and support programmes.
Conclusion
[85] For the reasons outlined above, I am satisfied that in all the circumstances of this
matter, the objects of the Act would best be served by exercising the discretion available to
me under ss.236(1) in favour of the applicant.
[2015] FWCD 8306
[86] Consequently, I will issue a formal direction to the Association under ss.236(1) of
the Act requiring that a copy of the register be delivered to the General Manager.
[87] The copy may be provided in hard copy or electronic form.
[88] I note that it was submitted on behalf of the Association that s.236(1) does not confer
34
a right to copy.
[89] It appears that the language in Australian Liquor, Hospitality and Miscellaneous
Workers Union is unequivocal – the right to ‘inspect’ that may be conferred under the
35
| .236(1) and its predecessors does not ‘carry with it a right to take copies’. | I note that there |
is nothing prohibiting an organisation from permitting a member to take copies.
[90] However, ss.236(5) provides
Where the General Manager receives a copy of a document from an organisation under
this section, the General Manager may, if the General Manager considers it appropriate
in the circumstances, provide a copy of that document to a member of the organisation.
[91] I find that the circumstances here appropriate to my authorising the provision of a
copy of the Register of Members to Ms Diack under ss.236(5). Ms Diack has stated that she
is seeking a direction for the purposes of electioneering and sharing relevant information
with members. Unless she is able to commit the name and addresses of the entire Register
of Members to memory, inspection of the register serves no purpose.
[92] I consequently resolve to provide a copy of the register to Ms Diack under s.236(5)
once the relevant copy has been provided to the General Manager under s.236(1).
[93] The submission on behalf of the Association requested that the decision be
prospective. However, in view of the very tight deadlines with nominations for Divisional
elections scheduled to open on 14 February 2016, I direct that the copy be provided to the
General Manager within a two-week period from the date of the direction.
[2015] FWCD 8306
<Price code A, PR575896>
DELEGATE OF THE GENERAL MANAGER
Printed by authority of the Commonwealth Government Printer
1
Submission of Miranda Diack, 5 October 2015, p. 1.
2
Submission of Miranda Diack, 5 October 2015, pp. 1 – 2.
3
Note: References in the Act to the relevant powers of the General Manager will be referred in this decision as powers
delegated to me under ss. 343A(3)(e).
4
Correspondence from the Fair Work Commission to Miranda Diack, 7 October 2015.
5
Submission of Miranda Diack, 26 October 2015, p. 1.
6
Submission of Miranda Diack, 26 October 2015, p. 1.
7
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para.1.1.
8
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para. 2.3.
9
Submission of Miranda Diack, 4 December 2015.
10
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para 3.1, citing Australian Liquor, Hospitality and
Miscellaneous Workers Union 12 April 2002, PR916689.
11
Submission of Miranda Diack, 4 December 2015.
12
Submission of Miranda Diack, 5 October 2015, pp. 1 – 2.
13
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at paras 4.1 – 4.2.
14
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at paras 4.3 – 4.4.
15
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para 3.1.
16
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para 4.7.
17
[1989] 323 IR 46
18
Section 268 of the Industrial Relation Act 1988 is the predecessor to, and is substantively the same as s.236 of the Act.
19
[1989] 323 IR 46 at 49 (per Moore VP).
20
12 April 2002, PR916689.
21
[2008] WASC 146 at para. 47
22
[2008] WASC 146 at para. 65
23
Section 268(12) of the Workplace Relation Act 1996, the predecessor to s.236(1) of the Act.
24
12 April 2002, PR916689 at para. 48.
25
Submission of Miranda Diack, 26 October 2015, p. 1.
26
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para. 4.5.
27
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para. 4.7.
28
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para. 4.8 – 4.9.
29
Submission of Miranda Diack, 26 October 2015, p. 2.
30
Privacy Act 2009, s.6.
31
Federal Privacy Handbook, CCH 10,550 at 13.703,
32
12 April 2002, PR916689 at para. 42.
33
The roll of voters for the election must set out opposite the name of each person on the roll the postal address of that person
– regulation 131(2)(b) of the Fair Work (Registered Organisations) Regulations 2009.
34
Submission of Jim Nolan, Counsel for the FAAA, 30 November 2015 at para. 3.1.
35
12 April 2002, PR916689 at para. 43.
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