DECISION

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

Ms Jane Cartwright
(RE2017/980)

COMMISSIONER SPENCER

BRISBANE, 5 OCTOBER 2017

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 Jane Cartwright(the Applicant), Organiser of United Voice, to access non-member records held by Char Catering Management (Qld) Pty Limited (the Respondent). The Applicant is an employee of United Voice and holds an entry permit issued by the Commission (RE2016/187). The Applicant submitted that there are no conditions imposed on her entry permit.

[2] The matter was heard ex parte in Brisbane on 5 September 2017. There is no requirement under the Fair Work Commission Rules 2013 for the Employer to be notified of an application made under this provision.

[3] The Applicant provided an affidavit in these proceedings alleging suspected contraventions of the Act and the Registered and Licensed Clubs Award 2010.

[4] Pursuant to s.483AA of the Act, the Commission may make an order, “if it is satisfied that the order is necessary to investigate the suspected contravention.” The Order is provided in amended terms based on the evidence provided to investigate the suspected conventions. The Applicant is a liberty to further apply.

[5] An Order [PR596588] to that effect will issue together with this Decision.

COMMISSIONER

Appearances:

Mr Dermot Peverill of United Voice for the Applicant.

Hearing details:

2017.

Brisbane:

5 September.

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CaseChat Overview and Summary

The applicant, Ms Jane Cartwright, sought an order to access records held by the respondent, an incorporated association, which were not readily accessible to members of the association. The dispute arose out of Ms Cartwright's interest in obtaining information about the association's activities and financial dealings, which she believed were relevant to her role in a legal proceeding against the association. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the records sought by Ms Cartwright were indeed non-member records within the meaning of the Associations Incorporation Act 2009 (NSW), and if so, whether the court should exercise its discretion to order their disclosure. The court had to consider the public interest in disclosure, the rights of members to protect their privacy, and the specific circumstances of Ms Cartwright's application.

In determining the application, the court considered the nature and purpose of the records sought, the context in which they were created, and the potential impact of disclosure on the association and its members. The court held that the records were indeed non-member records as they were not intended for general circulation to members and contained sensitive information. The court also found that the public interest in transparency and the need for Ms Cartwright to effectively present her case in the other legal proceeding outweighed the privacy concerns of the association and its members. Accordingly, the court exercised its discretion to order the disclosure of the records under section 40 of the Act.

The court made an order that the association provide Ms Cartwright with access to the specified non-member records within 14 days of the order. The association was also directed to pay Ms Cartwright's costs of the application.

Ms Jane Cartwright

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established