Ron Southon Pty Ltd

[2017] FWC 775

[2017] FWC 775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ron Southon Pty Ltd
(AG2016/3985)

COMMISSIONER BISSETT MELBOURNE, 7 FEBRUARY 2017

Application for approval of the Ron Southon Pty Ltd Enterprise Agreement 2016-2020 – access to Forms F16 and 17 by non-party to agreement.

[1] On 19 December 2016 the Full Bench of the Fair Work Commission (the Commission) considered an appeal against a decision of the Commission to approve the Ron Southern Pty Ltd Enterprise Agreement 2016-2020 (the Agreement). 1

[2] In Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd 2 (Ron Southon) the Full Bench said:

[28] Completed Forms F16 and F17 should be treated as documents that are freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality. We are satisfied that no such exceptional circumstances exist in the matter before us, and the Commissioner was in error in declining to provide the appellant with the documents sought.

[3] The Full Bench upheld the appeal and has referred approval of the Agreement to me. This decision concerns access to Forms F16 and F17 sought by the Construction, Forestry, Mining and Energy Union (CFMEU) and proposed amendments to the directions for dealing with the application for approval of the Agreement.

Access to the Forms F16 and F17

[4] The CFMEU has advised me that it seeks access to the Forms F16 and F17 filed by Ron Southon Pty Ltd (Ron Southon) in connection with the approval of the Agreement. Out of an abundance of caution I sought the views of Ron Southon and, in particular, if there were any “exceptional circumstances” that might count against the presumption of access to the Forms as found by the Full bench in Ron Southon.

[5] In its submission Ron Southon said that the comments of the Full Bench at [28] in Ron Southon are obiter and that the principles of open justice should be “balanced with the need to protect individual employee/bargaining agent privacy in circumstances where an Employee has nominated themselves or another person other than the union as a Bargaining Agent.”
[6] Further, Ron Southon says the Commission should take into account its inherent obligations with respect to the Privacy Notices attached to the Forms F16 and F17, particularly as how such notices affect the “disclosure of the personal details associated with each of the self-nominated, Employee Bargaining Agents to a third and unrelated party…”. Ron Southon says that the privacy notices do not say that information contained in the forms may be provided to another party. In this respect it says that the finding of the Full Bench in Ron Southon at paragraph [28] is inconsistent with the privacy notice associated with the Forms.

[7] The CFMEU submits that Ron Southon has not identified any exceptional circumstance such that the CFMEU should not be granted access to the Forms F16 and F17. Further, it submits that there is no basis on which it could be sustained that the comments made by the Full Bench at paragraph [28] were obiter. It says that the issue of access to the Forms was fully argued in the appeal and disposed of by the Full Bench. The findings with respect to access to the Forms was one of the matters that led to the quashing of the original decision.

[8] Further, the CFMEU says that the Forms F16 and F17 do not contain any information that could be classified as private.

[9] The CFMEU says that Ron Southon’s reference to the Commission’s Privacy policy is not relevant and, in any event, it has selectively quoted from the policy.

Consideration

[10] It is apparent from the submissions of Ron Southon that its main concern in releasing the Forms F16 and F17 to the CFMEU is that they contain the names of bargaining representatives (incorrectly referred to as bargaining agents in submissions of Ron Southon).

[11] Ron Southon relies on the Privacy notice referenced in the Forms F16 and F17 as grounds on which it says the Forms should not be disclosed to the CFMEU.

[12] Each of the Forms has a covering sheet which contains a paragraph that reads:

Privacy

The Commission collects the information (including personal information) provided to it in this form for inclusion on the case file, and may disclose this information to the other parties to this matter and to other persons. For more details of the Commission’s collection, use and disclosure of this information, please see the Privacy notice for this form, or ask for a hard copy to be provided to you.

[13] The paragraph on privacy on the cover sheet of the Forms clearly identifies that the Commission may disclose information contained in the Forms to other persons. There should exist, therefore, a reasonable expectation that personal information may be disclosed.

[14] The Privacy notice referenced in the cover sheet to the Forms contains information on the details of the information collected and refers the reader to the Privacy policy for information on how the reader “and other individuals can access personal information that is held by the Commission and seek correction of such information.”
[15] The Privacy policy relevantly states:

Types of information

Applications (case files)

The Commission frequently collects personal information related to applications filed with the Commission. Information is generally collected in documents filed with the Commission or as part of dealing with a matter.

Collection of this information is authorised by section 590 of the Fair Work Act 2009, which states that the Commission may ‘inform itself in relation to any matter before it in such a manner as it considers appropriate’. Information collected includes personal and sensitive information about the parties or other individuals including names, contact details, employment and medical information.

Information collected in relation to an application will be used by the Commission to process and finalise the application. Information will be disclosed by the Commission in transcripts, decisions or other determinations, daily hearing lists, or if access is granted to the case file.

Access to case files

Access to case file documents is at the discretion of the Commission.

Where an application has been lodged under the Fair Work Act 2009, the application and its accompanying case file (including any material in the Commission’s case management system) are generally available for inspection by parties to the proceedings and the public. Exceptions to this include:

● unfair dismissal applications

● general protection applications

● applications for an order to stop bullying

● unlawful termination applications

● certain disputes under an award or enterprise agreement involving individual employee(s)

● other matters that are required to be or were dealt with in private, such as matters in relation to Australian Workplace Agreements and conferences in dispute resolution proceedings.

These applications and the accompanying case file (including material in the Commission’s case management system) are not available for inspection, other than by a person who is a party named in the application (or their representative).

In addition, access will not be granted to information subject to confidentiality or non-publication orders made under sections 593(3) or 594(1) of the Fair Work Act 2009, or to internal working documents on case files.

In some instances, personal or other information may be redacted from documents before they are released.

Access to documents on an open case file is also subject to the consent of the presiding Member.

Where access to a file (or documents contained in the file) is not granted, a person may make an application to access the file or documents under the Freedom of Information Act 1982.

[emphasis added]

[16] I am not satisfied that there is conflict between the disclosure of the Forms F16 and F17 and the Commission’s Privacy policy. The Policy makes clear that the information collected and held on Commission files is “generally available for inspection by…the public” with certain exceptions. The matter before me does not fall within any of the exceptions. Even if the Forms were not disclosed this does not protect a person named in an application – as a bargaining representative or otherwise – from having their name disclosed in any decision of the Commission. If Ron Southon was correct in its submission with respect to the Policy the Commission may be limited in its statutory obligations with respect to the making of decisions and the publication of reasons for those decisions.

[17] I see no conflict between the concept of open justice as enunciated by the Full Bench in Ron Southon and the Commission’s Privacy policy. Ron Southon has provided no grounds on which such a conclusion could be reached.

[18] Further, I would observe that, in becoming a bargaining representative, an individual has agreed to participate in a public process – that is the negotiation of an enterprise agreement. There is nothing intrinsic or extrinsic to the Fair Work Act 2009 (the FW Act) that would give a bargaining representative any notion that such activities were private and would remain so. The information collected by the Commission is collected in respect of the making of an enterprise agreement. The use or disclosure of the information by the Commission is clear and is permitted.

[19] As to the binding nature of the conclusion of the Full Bench in the decision in Ron Southon it is clear that the matter of access to the Forms F16 and F17 was a ground of appeal. 3 Further, the matter was fully ventilated on appeal and was subject to decision of the Full Bench. This is apparent where the Full Bench said:

[19] The appellant submitted that:

‘The fundamental issue that arises in this appeal concerns the right of an “organisation” – and I use “right” in its broadest possible way – to have access to relevant documents. In this case, what is known as the form 16 and the form 17 that accompany an application for approval of an enterprise agreement.’

[20] There has been a diversity of decisions by members of the Commission concerning the appropriateness of providing organisations that are not bargaining representatives with copies of the forms F16 and F17 that are lodged in support of the approval of an enterprise agreement.

…

[22] We think it is appropriate that this Full Bench provide guidance on this issue.

[20] Following a consideration of the principles of open justice, the Full Bench reached the conclusion:

[28] Completed Forms F16 and F17 should be treated as documents that are freely available to any member of the public …the Commissioner was in error in declining to provide the appellant with the documents sought.

[21] In its conclusion on the appeal the Full Bench said:

[48] This matter raises significant issues that have broad application to the manner in which the Commission deals with applications to approve enterprise agreements. Accordingly, we consider permission to appeal should be granted. Given the errors we have identified, we uphold the appeal, and quash the decision…

[22] The matter of access to the Forms was a substantial issue raised on appeal, was fully argued before the Full Bench, the original decision found to be an error and that error, with others, formed the basis for the Commission quashing the decision at first instance. This is clear from the excerpt from the decision set out above. It is not apparent how the finding at paragraph [28], in such circumstances, could be considered obiter. I am satisfied that I am bound by the decision of the Full Bench in this respect.

[23] Ron Southon has provided no basis on which I could conclude that exceptional circumstances exist such that the Forms F16 and F17 should be subject to an order of confidentiality and that the CFMEU should not be given access to them. Copies of the Forms will be forwarded to the CFMEU by my chambers following the issue of this decision.

Further directions

[24] Ron Southon has sought a variation to the directions previously issued following a mention of this matter. I would note that Ron Southon was represented at the directions hearing and made no objection to the directions as resolved at that time.

[25] Ron Southon says that the directions should provide for the employees/bargaining agents to be given an opportunity to make submissions. On this matter, I would observe that the employees are parties to the Agreement and, as such, have a right to be heard. Rule 40 of the Fair Work Commission Rules 2009 requires that all employees covered by the Agreement must be notified that an application for approval of an agreement has been made. This, in part, facilitates any employee who may want to make submissions on the question of approval.

[26] Given the delay from the time of making the application to the final hearing on approval it is reasonable that all employees covered by the Agreement be advised that the hearing for approval is coming on. Should employees wish to make submissions on any matters associated with the approval they may, as a matter of course, do so. No specific directions need to be issued. Ron Southon may provide employees with the directions as amended and advise them that they may make submissions should they wish to do so.

[27] Ron Southon seeks an opportunity to reply to the submissions of the CFMEU as to why it should be heard in relation to the application. This is easily rectified by the inclusion of a further direction requiring Ron Southon to file and serve any submissions in reply to those of the CFMEU within one week of the CFMEU filing its submissions.

[28] Ron Southon further seeks to amend the direction so that the question of the CFMEU’s right to be heard be heard and determined by the Commission prior to dealing with (presumably including submissions) any hearing to determine if the Agreement should be approved.

[29] The CFMEU objects to any alteration to the directions that might introduce delay in dealing with the matters before the Commission.

[30] I am not prepared to introduce any greater delay into the determination of approval of the Agreement than is necessary to ensure all parties have an opportunity to put their respective cases. The employees have been in a state of uncertainty as to the Agreement for some time now and there are no grounds for any unnecessary delay.

[31] It is my expectation that, in filing submissions in accordance with the directions, the parties will clearly and separately address the two distinct issues – the right of the CFMEU to be heard and matters associated with approval of the Agreement.

[32] I am prepared to structure the hearing so that the question of whether the CFMEU should be heard is dealt with first and the application for approval of the Agreement is dealt with immediately following. This will also ensure that the applicants in each case put their submissions in the first instance.

[33] In making my decision I will first determine if the CFMEU should be heard and, if not, any submissions it makes with respect to the approval of the Agreement will be disregarded.

[34] Amended directions reflecting this decision will be issued in conjunction with this decision.

COMMISSIONER

 1   [2016] FWCA 6773.

 2   [2016] FWCFB 8413.

 3   See ‘grounds of appeal’ in the Notice of Appeal filed by the CFMEU, repeated at Ron Southon at[14].

Printed by authority of the Commonwealth Government Printer

<Price code C  PR PR590040>