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).

Printed by authority of the Commonwealth Government Printer

Mr Robert Barton applied to the Federal Circuit and Family Court of Australia for an order to access non-member records held by Australian Unity Limited. The application was made in the context of an alleged contravention of the Corporations Act 2001 by Australian Unity Limited. The court was also asked to vary an existing order PR577049. This order had been made to allow Barton to access specific records of Australian Unity Limited, which he believed contained evidence of the alleged contravention.

The central legal issues before the court were whether the application to access additional non-member records was justified and whether the existing order should be varied to include these records. The court needed to assess the relevance and necessity of the additional records in light of the alleged contravention and determine if there were any grounds for varying the existing order to include these records. The court also considered whether the application complied with the procedural requirements under the Corporations Act.

The court determined that the application to access additional non-member records was not justified on the evidence presented. It found that the records sought were not relevant to the alleged contravention or the purpose of the existing order. The court further held that there were no grounds to vary the existing order to include the additional records. The application did not meet the criteria for varying an order under the relevant legislation, and the procedural requirements were not satisfied. Consequently, the application was dismissed.

No further orders were made by the court, and the existing order PR577049 remained in place without any amendments. The court's decision effectively maintained the status quo regarding access to the records held by Australian Unity Limited.

Mr Robert Barton

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established