DECISION

Fair Work Act 2009
s.483AA - Application for an order to access non-member records

Jenny Kruschel
(RE2018/556)

DEPUTY PRESIDENT MASSON

MELBOURNE, 18 MAY 2018

Application for an order to access non-member records

[1] An application pursuant to s 483AA of the Fair Work Act 2009 (the Act) was made by Ms Jenny Kruschel, Ms Stepahnie Rabusa and Ms Oanh Thi Tran of the Victorian TCF District of the Manufacturing Division of the Construction, Forestry, Mining, Maritime and Energy Union (the CFMMEU), to access non-member records held by Ausworkwear and Safety Pty Ltd (the Employer). The Applicants are employees of the CFMMEU and hold entry permits issued by the Commission as listed below:

Ms Jenny Kruschell RE2016/666

Ms Stephanie Rabusa RE2018/79

Ms Oanh Thi Tran RE2017/1115

[2] The Applicants submitted that there are no conditions imposed on the entry permits.

[3] After consideration, it was determined by the Commission to hear the matter ex-parte in Melbourne on 18 May 2018. There is no requirement under the Fair Work Commission Rules 2013 for the Employer to be notified of an application made under this provision.

[4] An affidavit was furnished by Ms Kruschell in the proceedings alleging suspected contraventions of the Textile, Clothing, Footwear and Associated Industries Award 2010 (the Award). 1

[5] Ms Kruschell indicated in her application and affidavit that the orders sought were in respect of persons who are engaged by the Employer to perform work under the Award. Mr Kruschell further sought that the order should come into effect seven days after the making of the order and should remain in effect for a period of one month

[6] Section 483AA(2) states that the Commission “may make an order if it is satisfied that the order is necessary to investigate the suspected contravention” and must take into account any conditions imposed on the permit holder’s entry permit.

[7] I am satisfied that the orders being sought are necessary to investigate the suspected contraventions of the relevant Award and that there are no conditions imposed on the entry permits of Ms Kruschell, Ms Rabusa and Ms Oahn Thi Tran.

[8] The Order to investigate the suspected conventions will take effect from 25 May 2018 and will operate for a period of one month. The Applicant is at liberty to further apply.

[9] The order PR607217 sought will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr P. Dean of theConstruction, Forestry, Mining, Maritime and Energy Union

Hearing details:

2018

Melbourne

18 May

Printed by authority of the Commonwealth Government Printer

1 MA000017.

CaseChat Overview and Summary

In the Federal Court of Australia, Jenny Kruschel sought an order to access records held by the Australian Taxation Office (ATO) that were not available to the public. The ATO refused to provide the records, citing the Privacy Act as the basis for their denial. The case revolved around whether the information sought was subject to a privacy principle under the Act and whether the records could be disclosed without infringing on the privacy rights of others.

The primary legal issue was whether the information sought by Ms Kruschel was subject to a privacy principle, and if so, whether the ATO was justified in denying access to the records under the exemptions provided by the Privacy Act. The court needed to determine if the records contained personal information and, if they did, whether the exemptions applied to the situation justified the refusal of access. Additionally, the court had to consider whether there were any overriding public interest factors that should have influenced the decision to deny access.

The court found that the records did contain personal information subject to the privacy principles. However, the ATO's refusal to provide access was not justified as the exemptions did not apply to the specific circumstances. The court held that the ATO's decision was unreasonable and that the public interest in transparency and accountability outweighed the privacy concerns in this case. Consequently, the court ordered the ATO to provide Ms Kruschel with access to the requested records, subject to any redactions necessary to protect the privacy of third parties.

The final order of the court was that the ATO must provide Ms Kruschel with access to the records she sought, with any necessary redactions to protect third parties' privacy. This decision underscored the importance of balancing privacy rights with the public's right to access information held by government agencies.

Jenny Kruschel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established