Mr Robert Barton

[2016] FWC 1649

[2016] FWC 1649

FAIR WORK COMMISSION

DECISION

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

Mr Robert Barton
(RE2016/204)

DEPUTY PRESIDENT ASBURY BRISBANE, 16 MARCH 2016

Application for an order to access non-member records - suspected contravention - application to vary order PR577049.

[1] This Decision concerns an application in a matter pursuant to s.603 of the Fair Work Act 2009 (the Act) to vary an Order of the Fair Work Commission (the Commission). Mr Barton applies to vary the Order I made on 17 February 2016 in this matter that allowed Mr Barton to access certain non-member records held by Teys Australia Beenleigh Pty Ltd (Teys). 1

[2] The effect of the variation sought by Mr Barton is to extend the period in which Mr Barton is allowed to access those non-member records.

[3] In support of the application, Mr Barton submits that in compliance with the Order Teys produced a large number of documents to the Australasian Meat Industry Employees Union (the AMIEU). Those documents were provided to the AMIEU on 19 February 2016. The non-member records comprised some 50 archive boxes of documents.

[4] Mr Barton submits that because a large volume of documents has been produced, the AMIEU has discussed ways of dealing with the documents with a document management service. The estimated time required to complete any document handling exceeds the time presently allowed by the Order.

[5] Teys has confirmed that it consents to the Order being varied in the manner proposed by Mr Barton.

Consideration

[6] The application in a matter has been made pursuant to s.603 of the Act. Section 603 relevantly provides:

“603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or
(b) on application by:

(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

...”

[7] There are a number of exclusions in s.603(3) of the Act that are not presently relevant. Section 598 of the Act provides that a “decision of the FWC” includes “any decision of the FWC however described”, which includes an order.

[8] The discretion to revoke or vary a decision was described by Justice Munro in the following terms:

“The effectiveness of the power confers a discretion at large, but that discretion should be guided by the principles and considerations that go to the merits of making or refusing an order made under section 127.” 2

[9] I am satisfied that Mr Barton is a person who is affected by the Order. Even if Mr Barton was not a person affected by the order I am otherwise satisfied that I should vary the order on my own initiative in the circumstances.

[10] On the basis of the circumstances described by Mr Barton, and the fact that Teys consents to the variation of the Order, I am satisfied that the Order can and should be varied. An Order to that effect will issue concurrently with this Decision.

DEPUTY PRESIDENT

 1   Application by Mr Robert Barton [2016] FWC 899; PR577049.

 2   Re Rheem-Rydalmere Plant Industrial Action Order 2022 (Munro J, unreported, 9 April 2003, PR929970).

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