Georga Fitzgibbon, Joshua Bolitho, Cameron Hardy and Zachary Smith

[2017] FWC 1856

[2017] FWC 1856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.483AA—Right of entry

s.519—Application for an Exemption Certificate

Georga Fitzgibbon, Joshua Bolitho, Cameron Hardy and Zachary Smith
(RE2017/298; RE2017/299; RE2017/301; RE2017/303)

Construction, Forestry, Mining and Energy Union
(RE2017/304)

DEPUTY PRESIDENT KOVACIC CANBERRA, 3 APRIL 2017

Application for an order to access non-member records - Application for an exemption certificate.

[1] Ms Georga Fitzgibbon, Mr Joshua Bolitho, Mr Cameron Hardy and Mr Zachary Smith (the Applicants) each made an application to the Fair Work Commission (the Commission) under s.483AA of the Fair Work Act 2009 (the Act) for an order allowing them to access non-member records. The Applicants are all employees of the Construction, Forestry, Mining and Energy Union (CFMEU) and all hold entry permits issued by the Commission (RE 2017/39, RE2016/1525, RE2017/108 and RE2016/1433 respectively).

[2] The CFMEU also made an application for an exemption certificate under s.519 of the Act. An application under s.519 seeks an exemption from the requirement to provide entry notice.

[3] The applications were sought in respect of work performed under the terms of the Building and Construction General On-site Award 2010 1 (the Award) by employees of Care Traffic Pty Ltd and Care Traffic Services Pty Ltd (together Care Traffic). In view of concerns about the implications of revealing the identity of those who had raised concerns with the CFMEU regarding Care Traffic’s compliance with its Award obligations, on 27 March 2017 the Commission issued an Order2 to maintain, inter alia, the confidentiality of the transcript of the proceedings, the identity of persons named as providing information to the Applicants and the evidentiary material relied upon in respect of the applications.

[4] The applications were heard concurrently on 29 March 2017 on an ex parte basis, with Ms Rosalind Read appearing for the CFMEU at the hearing.

[5] The Applicants each gave evidence in support of their applications, with each attesting that no conditions had been imposed on their respective entry permits. Beyond this, the Applicants’ evidence highlighted common concerns with Care Traffic’s compliance with a number of Award provisions. Specific issues mentioned in evidence were Care Traffic’s alleged failure to provide crib or meal breaks, penalty rates not being paid for attendance at work outside the Award’s ordinary scope of hours and non-payment of travel time. One of the Applicants also attested that Care Traffic employees, who were predominantly employed on a casual basis, were extremely reluctant to make a statement regarding their concerns about Care Traffic’s Award compliance for fear of retaliatory action such as not being offered shifts for a period of time. That Applicant also attested that the CFMEU had in late 2016 attempted to commence negotiations with Care Traffic for an enterprise agreement but that Care Traffic was yet to respond to its correspondence of 1 November 2016 3.

[6] In addition to the Applicants’ evidence, evidence was also given by two other persons who were knowledgeable about Care Traffic’s employment arrangements. The evidence of one of those witnesses was that a recent investigation of Care Traffic’s Award compliance confirmed that there were irregularities in respect of its compliance with the Award’s meal break and timekeeping provisions and that the timekeeping records involved the time that both members and non-members worked being recorded on the same sheet. The evidence also highlighted that as part of the abovementioned investigation it was observed that a number of the sheets on which employees’ hours of work were recorded had been altered with “whiteout”. The witness also attested that they hoped there were not continuing problems of Award compliance by Care Traffic but added that its processes were not beyond compromise. The witness’ evidence was in my view both measured and reliable.

[7] Section 483AA provides that the Commission may make an order sought “if it is satisfied that the order is necessary to investigate the suspected contravention”. I am satisfied that the orders sought are necessary to investigate whether the suspected contraventions of the Award by Care Traffic are in fact occurring. The orders sought will be issued in conjunction with this decision.

[8] As to the CFMEU’s application under s.519 of the Act, as observed by Commissioner Asbury (as she then was) in Transport Workers’ Union of Australia, Brendan Bogle and Craig Williams 4, “the bar for an applicant seeking an Order under s.519 is high”. I agree with that view.

[9] Specifically, s.519 provides that:

“519 Exemption certificates

(1) The FWC must issue a certificate (an exemption certificate) to an organisation for an entry under section 481 (which deals with entry to investigate suspected contraventions) if:

(a) the organisation has applied for the certificate; and
(b) the FWC reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence.

(2) An exemption certificate must specify the following:

(a) the premises to which it relates;
(b) the organisation to which it relates;
(c) the day or days on which the entry may occur;
(d) particulars of the suspected contravention, or contraventions, to which the entry relates;
(e) section 481 as the provision that authorises the entry.”

[10] In this case, as noted above, the evidence before the Commission is that a number of the sheets recording employees’ hours of work had been altered, with those alterations being identified in the course of the investigation into Care Traffic’s compliance with its Award obligations. No evidence was lead suggesting that Care Traffic had either concealed or destroyed records prior to that investigation occurring. Given that Care Traffic was forewarned about the investigation, that the abovementioned altered records were observed as part of the investigation and that the investigation nevertheless confirmed that there were irregularities in respect of Care Traffic’s award compliance, I do not reasonably believe as required by s.519(1)(b) of the Act that advance notice of entry might result in the destruction, concealment or alteration of relevant evidence. I therefore decline to issue the exemption certificate sought by the CFMEU. An order dismissing, the CFMEU’s application in that regard will also be issued in conjunction with this decision.

Appearances:

R. Read for the Applicants

Hearing details:

2017.

Melbourne and Canberra:

March 29.

 1   MA000020

 2   PR591332

 3   Exhibit 2 at Annexure C

 4   [2012] FWA 8247

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