Fair Work Ombudsman v Jackson

The Fair Work Ombudsman (FWO) brought proceedings against Mr Jackson concerning alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute centred on Mr Jackson's alleged failure to comply with a notice issued by the FWO under section 487 of the Act, which required him to provide documents and information relevant to an investigation into potential breaches of workplace laws. Mr Jackson contended that he was unable to comply with the notice due to a lack of access to the relevant documents, which he claimed were in the possession of his former employer. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr Jackson had a reasonable excuse for failing to comply with the section 487 notice. The Court was required to consider the scope of the defence of "reasonable excuse" under the Act and whether Mr Jackson's asserted inability to access the documents constituted such an excuse. This involved an examination of the onus of proof on Mr Jackson to establish a reasonable excuse and the nature of the evidence required to discharge that onus.

Judge McGuire found that Mr Jackson had failed to establish a reasonable excuse for his non-compliance. The Court reasoned that while Mr Jackson may have faced practical difficulties in obtaining the documents, these difficulties did not amount to a legal impossibility or a defence to the statutory obligation. The Court emphasised that the Act imposes a direct obligation on the person to whom the notice is issued, and the mere assertion of difficulty in obtaining information, without more, is insufficient to discharge the onus of proving a reasonable excuse. Mr Jackson's failure to take proactive steps to secure the documents or to provide alternative information was also considered by the Court.

The Court ordered Mr Jackson to pay a penalty for his contravention of section 487 of the Act.