Flight Attendants' Association of Australia International Division v Diack

[2016] FWCFB 1423

[2016] FWCFB 1423

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Flight Attendants' Association of Australia
v
Miranda Diack
(C2016/2204)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS	SYDNEY, 24 MARCH 2016

Appeal against decision [2016] FWCD 116 of Mr Enright at Melbourne on 8 January 2016 in

matter number R2015/221.

[1]        On 14 January 2016 the Flight Attendants’ Association of Australia (FAAA) applied

for permission to appeal and appealed a decision (Decision) and direction (Direction) of Mr

Enright, acting as delegate for the General Manager of the Commission (Delegate), issued on

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8 January 2016 . The Direction required the FAAA, pursuant to s.236(1) of the Fair

Work (Registered Organisations) Act 2009 (RO Act), to provide the General Manager of the

Commission by 5.00pm on 25 January 2016 with a certified copy of the register of members

which the FAAA was required to keep under s.230(1)(a) of the RO Act. As the Delegate

explained in the Decision, the purpose of the Direction was for a copy of the register, once

produced, to be provided to Ms Miranda Diack, a member of the FAAA, to assist her in

preparing for participation in a forthcoming election for officers of the FAAA. It was Ms

Diack who had requested that a direction be made under s.236(1). The Decision made it clear

that the Direction had been made on the basis of an undertaking made by Ms Diack to the

following effect:

“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.”

[2]        We heard the appeal on 21 January 2016, and shortly after the conclusion of the

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hearing gave an ex tempore decision. We published that decision on 21 January 2016.	For
convenience we reproduce that decision in its published form: [2016] FWCFB 1423

“[1] This decision reproduces in edited form the decision which was stated on transcript

at the conclusion of the hearing conducted in relation to this matter on 21 January

2016. The decision concerned an appeal by the Flight Attendants' Association of

Australia (FAAA) against a decision and direction of Mr Enright, acting as delegate

for the General Manager (Delegate), issued under s.236 of the Fair Work (Registered

Organisations) Act 2009 on 8 January 2016.

[2] The Full Bench has decided that there was no error in the exercise of discretion by

the Delegate except that he denied the FAAA procedural fairness in accepting an

undertaking from Ms Diack without first affording the FAAA an opportunity to be

heard in relation to the undertaking.

[3] The denial of procedural fairness constitutes an appealable error. We therefore

grant permission to appeal, uphold the appeal and quash the decision and direction of

the Delegate.

[4] We propose to redetermine the matter based on the submissions of the parties and

the material before the Delegate.

[5] We intend to make a direction in the same terms as the direction made by the

Delegate on 8 January 2016, if by noon on Friday, 22 January 2016 Ms Diack sends

the Fair Work Commission a written and signed undertaking in the following terms:

(a) 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 Fair Work

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;

(b) I will return all copies of the register of members, including any electronic

copies, to the Fair Work Commission by 4pm on 29 February 2016; and

(c) I will not show or provide a copy of the register of members to any person

who is not a member of the FAAA and will only show or provide a copy of the

register of members to a member of the FAAA if that member first provides a

signed and written undertaking to the Fair Work Commission in the same terms

as this undertaking (save that the reference to “my submissions” in paragraph

(a) of this undertaking will be a reference to the submissions made by Ms

Diack to the Commission on 5 and 26 October 2015).

[6] If the undertaking is provided the direction will be formally issued prior to 4pm

tomorrow 22 January 2016. If the undertaking is not provided we will not make the

direction.

[7] If any party requests them, reasons for this decision will be provided in due

course.”

[2016] FWCFB 1423

[3]        Ms Diack provided the required undertaking as contemplated by paragraph [5] of the

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above decision, and on 22 January 2016 we made the following direction (Further Direction):

“Further to the decision ([2016] FWCFB 431) issued on 21 January 2016, the

Commission, pursuant to s.236(1) of the Fair Work (Registered Organisations) Act

2009 (RO Act) and s.607(3)(b) of the Fair Work Act 2009, directs the Flight

Attendants’ Association of Australia to provide the General Manager of the

Commission with a copy of the register of members required to be kept under s.230 of

the RO Act certified by declaration by the secretary or other prescribed officer to be a

correct statement of the information contained in the register; and that this copy is to

be provided to the General Manager at the office of the Fair Work Commission at 11

Exhibition Street, Melbourne by 5.00pm 25 January 2016.”

[4]        The FAAA has asked that we provide reasons for our decision, and accordingly we

now do so consistent with paragraph [7] of our decision.

[5] Section 236(1) of the RO Act provides:

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).

[6] In relation to s.268(12) of the Workplace Relations Act 1996, which was the statutory

predecessor of s.236(1) of the RO Act and was expressed in relevantly identical terms, a Full
[2016] FWCFB 1423

Bench of the Australian Industrial Relations Commission in Australian Liquor, Hospitality

4

and Miscellaneous Workers Union said:

“[39] The power conferred by s.268(12), like that conferred by subsection (10), is a

discretionary one. However, unlike subsection (10), subsection (12) does prescribe

some pre-conditions for the exercise of the discretion. Firstly, there must be a request

from a member for the giving of a direction. It is not suggested in this case that this

condition has not been met. Secondly, the Registrar must be satisfied either that there

has been the requisite refusal of access to the register or that there are other grounds

for giving a direction. This itself involves a discretionary decision. Again, it is not

suggested that here there has not been a refusal of access to the register for the

purposes of subsection (12)(b)(i). These 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 Act and could not exercise that power with a

view to achieving objects outside the purpose for which the discretion is conferred.”

[7]        There was no issue that Ms Diack had validly made an application for a direction

under s.236(1)(a). The Delegate was not satisfied, for the purpose of s.236(1)(b)(i), that the

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FAAA had refused Ms Diack access to its register of members. However he determined that

there were other grounds for giving the direction sought for the purpose of s.236(1)(b)(ii) as

follows:

“[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.”

1. In Australian Liquor, Hospitality and Miscellaneous Workers Union the Full Bench

accepted that the making of a direction for production of a copy of an organisation’s register

for the purpose of giving a member of the organisation access to it for electioneering purposes

was a legitimate exercise of the statutory discretion:

“[48] As is not disputed, the power conferred by subsection (12) is a discretionary

power. As such, it "cannot be exercised with a view to achieving objects outside the

purpose for which the discretion is conferred". Mr Church's stated reason was to use

the inspection of the register for electioneering purposes. We do not consider such a

purpose to be an ulterior or extraneous purpose. Although we are prepared to assume

that there is a principle that during an election period the resources of an organisation

may not be used to support one candidate in preference to another, it is clear that Mr

Church was not, at the relevant time, a candidate in an election, but merely a potential

candidate in a yet to be called election. We do not, therefore, accept that that principle

was relevant to the Deputy Industrial Registrar's exercise of her power and discretion

under s.268(12). 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 reason for wishing to inspect the register is electioneering, making a
[2016] FWCFB 1423

direction under subsection (12) was within the Deputy Industrial Registrar's

discretion.”

[9]        The ground identified by the Delegate for making the Direction was therefore one

which fell within the scope of his discretion under s.236(1)(b)(ii).

[10]      In relation to the exercise of the residual discretion as to whether to make the direction

sought or not, the Delegate took into account privacy issues raised by the FAAA and by a

number of its members individually. In doing so, he specifically found that the making of a

direction under s.236(1) would render any access subsequently given to the information in the

copy of the register produced in accordance with the direction to be authorised by or under an

Australian law or a tribunal order, and for that reason would not contravene the Australian

Privacy Principles contained in Schedule 1 of the Privacy Act 1988 (Cth). In this respect he

followed Australian Liquor, Hospitality and Miscellaneous Workers Union (at [42]). The

FAAA’s appeal did not challenge the correctness of this conclusion.

[11]      Having regard to the lack of any restriction in the RO Act upon the use which could be

made of information obtained through access to the FAAA’s register consequent upon the

making of a direction under s.236(1), the Delegate sought and obtained the undertaking which

we have set out in paragraph [1] above. Having obtained the undertaking, the Delegate was

satisfied that he should exercise his discretion in favour of making the direction sought by Ms

Diack. In seeking and obtaining the undertaking, the Delegate did not give the FAAA or the

members who had raised privacy concerns any opportunity to be heard as to whether that

undertaking, or any undertaking, would satisfy their privacy concerns or would provide a

proper foundation for exercising the discretion to make a direction.

[12]      In its appeal the FAAA submitted that the Decision was in error in the following

respects:

(1)	The Delegate could not have been satisfied as to the “other grounds” identified
in paragraph [38] of the Decision because the register required to be kept under
s.230(1)(a) did not require identification of a member’s employer and
workplace address, which information was necessary for the purpose for which
Ms Diack requested access to the register.
(2)	The Delegate did not take into account that the Direction would, and under
s.236(1)(a) could only, require the production of the entire membership register
for both the FAAA’s National and International Divisions, when Ms Diack had
only requested access to the International Division membership records
because she was only concerned with the election for that division.
(3)	The FAAA and its aggrieved members were denied procedural fairness in
relation to the undertaking and the exercise of the discretion on the basis of the
undertaking.
(4)	The undertaking did not provide any legally binding safeguards for the
protection of members’ privacy and did not otherwise adequately address the
privacy concerns, such as the provision of the information to third parties for
illegitimate purposes.

[2016] FWCFB 1423

[13]      In reaching our decision we rejected grounds 1, 2 and 4 of the FAAA’s appeal. In

relation to ground 1, we did not accept that the purpose for which Ms Diack sought access to

the FAAA’s register of members was rendered nugatory because the register did not identify

the employer or workplaces of members. Ms Diack identified in her request for the direction

that she wanted to send information to members, and access to the names and addresses of

members in the register would have facilitated this. The ground for the making of the

direction identified in paragraph [60] of the Decision directly reflected this. In relation to

ground 2, we did not consider that the fact that a member did not require access to the entire

membership list on the register could disbar the giving of a direction. We doubted that this

was even a relevant consideration, and in any event we could not identify that the FAAA even

raised this issue before the Delegate for his consideration. In relation to ground 4, we

considered that whether the undertaking sufficiently addressed the various privacy issues

which were raised was a matter about which the Delegate had considerable latitude in the

exercise of his discretion. No appealable error was identified in this regard.

[14]      However ground 3 of the appeal was made out. The register is the property of the

FAAA, and the information contained in it is information about the FAAA’s individual

members, so they had a legitimate interest in the matter. Clearly, the privacy concerns of the

FAAA and a number of its members was raised and treated as a significant issue before the

Delegate. Equally clearly, the undertaking was taken into account as a significant matter

favouring the giving of the Direction. In those circumstances we considered that the FAAA

and the relevant members had a legitimate expectation that they would be given the

opportunity to make submissions about whether the undertaking in the terms proposed, or in

any other terms, would provide a proper basis for the discretion to be exercised in favour of

giving a direction. They were not given that opportunity and therefore, we consider, were

denied procedural fairness. That constituted an appealable error which required permission to

appeal being granted, the appeal to be upheld, and the Decision and the Direction to be

quashed.

[15]      It was consequently necessary for us to re-determine Ms Diack’s request. For the same

reasons as expressed by the Delegate we considered that Ms Diack had made a valid request

for a direction for the purposes of s.236(1)(a), and we were also satisfied that there were the

same grounds as identified by the Delegate for the giving of a direction for the purposes of

s.236(1)(b)(ii). We also considered that it was appropriate to give the Further Direction

provided that Ms Diack gave an undertaking which was sufficient to protect the legitimate

privacy concerns of the FAAA and its members.

[16]      The FAAA was given an opportunity before and during the hearing of the appeal to

formulate an undertaking or propose some other legal mechanism which would properly

address the privacy concerns which it raised in the appeal. It made submissions at the hearing

of the appeal in relation to those privacy concerns, but did not formulate any such undertaking

or propose any other legal mechanism to address its concerns. In those circumstances we

formulated an undertaking ourselves which ensured that the information in the register was

only used by Ms Diack for the purposes for which she sought access, that any copies of the

register would be returned after a short period, that the register could not be shown or copied

to anyone not a member of the FAAA, and that it could only be shown or copied to a member

if that member provided the Commission with an undertaking in relevantly identical terms.

That undertaking, we considered, properly addressed the concerns raised by the FAAA - in

particular, the concern that the information in the register might be disclosed to persons

external to the FAAA and its membership.

[2016] FWCFB 1423

[17]      Once Ms Diack provided the undertaking in the terms proposed, we considered it

appropriate to make the Further Direction.

VICE PRESIDENT

Appearances:

J. Nolan of counsel for the Flight Attendants’ Association of Australia.

M. Diack on her own behalf.

Hearing details:

2016.

Sydney:

21 January.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577673>

1

[2016] FWCD 116

2

[2016] FWCFB 431

3

PR576409

4

12 April 2002, PR916689, [2002] AIRC 403

5

Decision at [26]-[34]