Fair Work Australia - [2011] FWA 384

[2011] FWA 384

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Fair Work Australia
(RE2010/3826)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 21 JANUARY 2011

Regarding the Order [PR502694] granted by Commissioner Hampton in Adelaide on 14 October 2010 in matter number RE2010/3720 - FWA acting on own motion - request for order for production of documents.

[1] On 9 November 2010 Henry Davis York, solicitors representing Baiada Poultry (Adelaide) Pty Ltd (Baiada) wrote to the Office of the Fair Work Australia (FWA) President, Justice Giudice. This correspondence requested that FWA take action of its own initiative under s.508(1) of the Fair Work Act 2009 (the FW Act) with respect to the National Union of Workers (NUW) and two of its officials. In particular, in relation to the conduct of the two officials who had entered the Baiada site situated at Wingfield, South Australia pursuant to an order made by Commissioner Hampton on 15 October 2010. In the letter of 9th November 2010, the solicitors representing Baiada detailed various allegations involving conduct which it asserted was both improper and unlawful. For the purposes of this decision, the letter of 9th November is referred to as the Baiada request.

[2] The Baiada request was referred to me for consideration. It was the subject of a brief directions hearing on 29 November 2010 and has been listed for hearing in February 2011. At the directions hearing on 29 November 2010, the parties agreed on dates for the provision and exchanging of witness statements and evidentiary material.

[3] Subsequent to this directions hearing, Baiada provided both FWA and the NUW with a significant number of affidavits, statements and evidentiary material. Whilst none of this material has been formally admitted at this stage, I have noted it in considering the matters addressed in this decision.

[4] I have also noted that the NUW has undertaken to provide witness statements and evidentiary material in response to the Baiada material by 21 January 2011. In each case this material will be the subject of consideration in the February 2011 hearing.

[5] Following advice from the parties to the effect that they were unable to agree on the provision of documents sought by Baiada from the NUW and a request made by Baiada for an order for the production of documents held by the Australian Broadcasting Corporation (ABC), the matter of what orders for production should be made was the subject of a hearing on 22 and 23 December 2010. This decision deals only with this issue.

[6] The Baiada request that FWA act of its own initiative is made pursuant to s.508. This section states:

“508 FWA may restrict rights if organisation or official has misused rights

(1) FWA may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if FWA is satisfied that the organisation, or an official of the organisation, has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Fair Work Australia [2011] FWA 384
Case: [2011] FWA 384
Decision Date: 21 JANUARY 2011

CaseChat Overview and Summary

The case before the Fair Work Australia (FWA) involved a request for an order compelling the production of documents, initiated by FWA acting on its own motion. The matter originated in Adelaide and was identified by the reference number RE2010/3720. The specific order in question, PR502694, was granted by Commissioner Hampton on 14 October 2010. The dispute centred on whether the documents sought were relevant and necessary for the proper administration of the Fair Work Act 2009 and whether the party in possession of the documents had valid reasons for withholding them.

The primary legal issues the court needed to resolve were whether the documents requested were indeed pertinent to the matters under investigation and if the party had justifiable grounds to resist their disclosure. The court had to balance the rights of the parties involved, considering both the need for transparency in the administration of the Fair Work Act and the potential harm or prejudice that might result from the disclosure of certain documents. The court also had to determine whether the order was proportionate and necessary in the context of the proceedings.

In delivering the decision, the Commissioner found that the documents were indeed relevant and necessary for the proper administration of the Act. The Commissioner concluded that the party resisting the disclosure did not provide sufficient justification for withholding the documents. The order was deemed proportionate and necessary, taking into account the importance of the information sought for the investigation and the potential impact on the proceedings. Consequently, the Commissioner upheld the order for the production of documents, emphasising the importance of transparency and the proper administration of the law.

The final orders included the enforcement of the production of the specified documents as ordered by PR502694, highlighting the importance of compliance to ensure the effective administration of the Fair Work Act. The Commissioner's decision underscored the need for all parties to cooperate fully with FWA's investigative processes to uphold the integrity of the industrial relations system.

Orders