Independent Education Union of Australia v Minaret College Ltd

[2023] FWC 2075

[2023] FWC 2075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.483AA - Application for an order to access non-member records

Independent Education Union of Australia
v

Minaret College Ltd

(RE2023/655 and RE2023/656)

DEPUTY PRESIDENT COLMAN MELBOURNE, 18 AUGUST 2023

Application for access to non-member records – request to determine ex parte – request refused

1. In a decision delivered on transcript on 10 August 2023, I declined to determine an application under s 483AA of the Fair Work Act 2009 (Act) on an ex parte basis. The following is an edited version of my decision, to which I have added a brief introduction. Two permit holders of the Independent Education Union of Australia (IEU) applied under s 483AA for an order that would allow them to inspect non-member records held by Minaret College Ltd (respondent). The applicants contended that such an order was necessary to allow them to investigate suspected contraventions of the Act by the respondent in connection with its employment of an IEU member on a fixed-term basis.

1. Clause 9.3(a) of the Educational Services (Teachers) Award 2020 (Award) states that where an employer engages an employee on a fixed-term basis, the letter of appointment will inform the employee of the reason that the employment is fixed-term. Clause 13.1 of the Award states that an employee may be employed for a fixed period of time for not more than 12 months for specified reasons, including to replace an employee who is on leave. Clause 13.2 states that where the replacement arrangement under clause 13.1(c) extends beyond 12 months, the fixed term employment may be extended for up to a further 12 months. The applicants suspected that the respondent had failed to inform the member of the reason for the fixed term employment. Further, they did not accept the respondent’s claim that the reason for the fixed term engagement was to cover an employee who was on maternity leave.

1. The applicants sought an order that would require the respondent to give it access to documents showing requests from teachers for parental leave and extensions of such leave, as well as contracts or letters of appointment for teachers engaged on a fixed-term basis, within particular dates. They asked that the matter be determined in the absence of the respondent. At a telephone hearing on 10 August 2023, I heard from the applicants as to why I should do so.

1. The applicants submitted that applications under s 483AA were commonly determined on an ex parte basis and that there was nothing that warranted a different course in this case. They contended that no real prejudice would accrue to the respondent by adopting this course. They said that if the employer were told of the application, it would have additional notice of the union’s proposed entry, beyond the 14-day maximum period in s 487(3), and that this would prejudice the union’s ability to investigate the suspected contraventions. Finally, they submitted that if the employer was notified of the application, it might apply pressure to the member to have the union cease its investigation.

1. At the conclusion of the telephone hearing, I advised the applicants that I was not persuaded that I should determine the matter in the absence of the respondent. The Commission must observe the requirements of natural justice, one of which is the hearing rule, which requires that ordinarily a party must be heard before a decision is made that affects its interests. This is not simply a procedural rule. It is a fundamental principle of the common law. To determine an application in the absence of a party is a serious matter that requires a well-founded reason justifying this course.

1. Precisely what natural justice requires in a particular case will depend on the circumstances. In some matters, there may be countervailing interests or considerations that warrant the determination of a matter on an ex parte basis. However, I was not satisfied that this was the case in this matter. Fears for the welfare of a member could provide a basis to decide a matter ex parte. But here, there was no reason to think that the member’s welfare was at any risk. The union had told the respondent of the contraventions it suspected and had identified the member. There was no suggestion that the respondent had to date applied pressure to the member to have the union cease its investigation. The notion that this might now occur in response to an application under s 483AA was speculation. As to s 487(3), this demarks the earliest and latest period of notice of entry that a union must give to an employer – at least 24 hours, and not more than 14 days. The determination of an application under s 483AA could not affect the union’s obligation to observe these rules. What the applicants appeared to mean was that the respondent would have advance warning of their intention to inspect non-union records. But there was no reason to think that this would affect the union’s ability to investigate the suspected contraventions, or that it was otherwise undesirable.

1. For these reasons, I resolved to relist the application for hearing inter partes and directed the applicants to serve the application on the respondent.

DEPUTY PRESIDENT

Hearing details:

2023
Melbourne
10 August

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