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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ron Southon Pty Ltd

Details

AGLC: Ron Southon Pty Ltd [2017] FWC 775
Case: [2017] FWC 775
Decision Date: 7 FEBRUARY 2017

CaseChat Overview and Summary

Ron Southon Pty Ltd, a company engaged in the automotive industry, applied to the Fair Work Commission for approval of the Enterprise Agreement 2016-2020. The Fair Work Commission was tasked with determining whether non-party individuals had access to the application's supporting documents, specifically Forms F16 and F17. The dispute centred on the confidentiality of these documents, with the company asserting that they contained sensitive information that should not be disclosed to non-parties. The opposing party argued that transparency was crucial for ensuring the agreement's fairness and compliance with relevant legislation.

The legal issues before the Commission included the interpretation of the Fair Work Act 2009 and the Fair Work Regulations 2009, particularly concerning the disclosure of confidential information in enterprise agreement applications. The Commission had to balance the company's right to protect sensitive information against the public interest in transparency and the rights of non-party stakeholders to access information necessary for assessing the agreement's fairness. The Commission considered the precedent set by previous cases and statutory provisions regarding the confidentiality of information submitted in enterprise agreement applications.

After reviewing the arguments presented by both parties, the Commission found that the sensitive information contained in Forms F16 and F17 was not essential for the assessment of the agreement's fairness. The Commission emphasised the importance of transparency in the enterprise agreement approval process and ruled that the non-party individuals should have access to the documents. The Commission approved the Enterprise Agreement 2016-2020, subject to certain conditions, including the requirement for the company to redact any information deemed strictly confidential and not necessary for the assessment of the agreement's fairness.

Orders