Sitel Australia Pty Limited and Employment Advocate
[2005] AATA 617
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 617
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1291
GENERAL ADMINISTRATION DIVISION ) Re SITEL AUSTRALIA PTY LIMITED Applicant
And
EMPLOYMENT ADVOCATE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date29 June 2005
PlaceSydney
Decision The reviewable decision is varied as follows. Ms Jagoe is granted access to the following documents:
“Employer Filing Application, Part 1 – Employer Details in relation to filing of AWA No 30102618” referred to as “Document 2” in this decision, subject to the deletion of the declaration appearing at the bottom of the first page of that document;
“The No Disadvantage Test in relation to the filing of AWA No 30102618” referred to as “Document 4” in this decision, subject to the deletion of one line on the first page being the line about half way down the page which is above the line “Declaration that … correspondence”.[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
FREEDOM OF INFORMATION – confidentiality order – information relating to the business, commercial or financial affairs – right of access – commercial value - Australian Workplace Agreements – information relating to other or comparable employee’s – decision varied
LEGISLATION
Freedom of Information Act (Cth) 1982 ss 3, 11, 38, 43(1)(b), 43(1)(c)(i), 43(1)(c)(ii), 48, 59, 61(2)
Workplace Relations Act (Cth) 1996 ss 83BS, 170VH, 170VN, 170VPA, 170VPB, 170VPK, 170WH, 170WHA, 170WHB, 170WHC, 170WHD and 170WI
CASELAW
Re Cockcroft and Attorney-Genral’s Department (1985) 12 ALD 462
Re Angel and Department of Arts Heritage and Environment (1985) 9 ALD 113
Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584
Harris v ABC (1983) 5 ALD 545
Cannon and Australian Quality Egg Farms Limited, Office of the Information Commissioner (Qld) 30 May 1994 QAR 491
Re Brown and Minister for Administrative Service (1990) 21 ALD 52
PIAC and Department Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714
Re PIAC and Department Community Services and Health and Searle Australia Pty Ltd (Administrative Appeals Tribunal, 19 September 1991, unreported)
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 438
Attorney – General’s Department and Australian Iron and Steel Pty Limited v Cockcroft (1986) 10 FCR 180
Re Maher and Attorney-General’s Department (No 2) 13 ALD 98REASONS FOR DECISION
29 June 2005 Senior Member, Mrs Josephine Kelly Background
1. Sitel Pty Limited, the Applicant (“Sitel”) appeals pursuant to s 59 of the Freedom of Information Act 1982 (Cwlth) (“the Act”) against a decision of the Respondent, the Employment Advocate (“the EA”) dated 10 September 2004. Relevantly, s 59 permits an organisation to appeal where a an agency decides to grant access to a document containing information relating to the business, commercial or financial affairs of that organisation because the document is not exempt pursuant to s 43 of the Act.
2. The decision of the EA relevantly permitted a former Sitel employee, Ms Jagoe, to have access to four documents (“the documents”) in respect of which Sitel claims an exemption pursuant to s 43. The documents are:
(a) “Employer Filing Application, Part 1 – Employer Details in relation to filing of AWA No 30102618” (“Document 2”)
(b) “Employer Filing Application, Part 2 – Employee Details in relation to the filing of AWA No 30102618” (“Document 3”)
(c) “The No Disadvantage Test in relation to the filing of AWA No 30102618” (“Document 4”)(d) “Employer Filing Application, Part 1 – Employer Details in relation to filing of the sample AWA” (“Document 5”)
3. Documents 2, 3 and 4 came into existence in the context of an application to the EA for the approval of an Australian Workplace Agreement (“AWA”) between Sitel and Ms Jagoe pursuant to the Workplace Relations Act 1996 (Cwlth) (“the WRA”). Ms Jagoe has been granted access to her AWA without objection from Sitel. I will address Document 5 more fully later.
4. Mr Barton explained that there are two steps that the EA goes through in relation to an AWA. The first is the assessment of the No Disadvantage Test under the WRA (“the NDT”), and the second is whether terms and conditions have been offered to the employee that are different from those offered to comparable employees. If that has not been done, the EA must be satisfied that the employer did not act unfairly or unreasonably in failing to do so. Document 4 includes a line reflecting the second assessment.
5. Documents 2 and 3 are Parts 1 and 2 respectively of the application form that was submitted by Sitel to the EA in relation to the AWA with Ms Jagoe. Document 4 is a document generated within the EA for the purpose of assessing whether the AWA passed the NDT. Document 5 is Part 1 of an application for a sample AWA, not the AWA with Ms Jagoe. It was provided following correspondence with Ms Jagoe (see T5 dated 30 July 2004) to refine her request. It is the same form as Document 2 but relates to a different employee, whose name has been deleted.
6. The exemption claimed in relation to each of Documents 2 and 5 is confined to the declaration appearing at the bottom of the first page. The claim in relation to Document 3 is confined to the information provided at number 8 on the first page and the schedule on page 2 headed “Typical Hours Worked Per Week”.
7. If Sitel’s objection document 2 were upheld, the only line that would be objected to in relation to Document 4 is one line on the first page being the line about half way down the page which is above the line beginning “Declaration that …”. If the exemption claimed in relation to document 2 were not upheld, the objection would be to the disclosure of the whole of Document 4.
8. It is not in dispute that the information sought to be exempted in each document is relevantly in respect of Sitel’s “business, commercial or financial affairs” within the terms of s 43 (see Re Cockroft and Attorney-General’s Department (1985) 12 ALD 462 at 464 and 465).
9. The onus of proof is cast on Sitel in these proceedings (s 61(2) of the Act).
10. The evidence before me included the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) and statement sworn by Ms Armitage for Sitel (Exhibit A1) and an affidavit by Mr Robinson for the EA (Exhibit R1). Mr Robinson described the scheme of the WRA in relation to the role of the EA and AWAs and sought to refute the evidence of Ms Armitage about the effect of disclosure of the information sought to be exempted.
Legislation
11. Relevantly, the Act provides as follows.
12. Section 3 - Object
(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
13. Part III—Access to documents
14. Section 11 - Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
15. Section 43 - Documents relating to business affairs etc.
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets;
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2) The provisions of subsection (1) do not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs;
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organization where the person making the request is the organization or a person acting on behalf of the organization.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority.
(4) For the purposes of paragraph (1)(c), information is not taken to concern a person in respect of the person’s professional affairs merely because it is information concerning the person’s status as a member of a profession.
16. Mr Barton, who appeared for Sitel, argued that the Documents were exempt on the basis of s 43(1)(b), (c)(i) and (ii). He asserted that the disclosure of the parts of the documents in dispute would destroy or reduce the comparative advantage Sitel holds, providing to its competitors valuable commercial information not in the public domain, that is, information not about Ms Jagoe but about other employees and their conditions of employment.
17. He argued that when read with Ms Jagoe’s AWA to which she has been granted access, the terms of the declaration on page 2 of Document 2 would disclose substantial information of other Sitel employees. Document 3 sets out typical hours worked by Ms Jagoe. When that information is read together with the declaration in Document 2 that would disclose information about other Sitel employees.
18. Document 4 contains calculations carried out by EA to determine whether the AWA passed the no-disadvantage test (“the NDT”). The test is to done to ensure that there is no disadvantage in relation either to current terms and conditions of employment or to any State or Federal awards (paragraph 11- Robinson). The information sets out information relating to Ms Jagoe’s employment, however, when read together with the declaration in Document 2, it is argued that discloses information about other Sitel employees. There is also a further statement in the middle of the first page of Document 4 which refers to certain classes of employees which in the context of Document 4 would disclose information about other Sitel employees.
19. Document 5 contains a declaration. It is part of a form that has to be filled in by the employer. Mr Barton argued that when read together with the details provided in Document 4, that would disclose substantial information about other Sitel employees (Ms Armitage, paragraph 9(d)).
20. During argument, various provisions of the WRA were referred to. Mr Barton said that the scheme of the WRA recognises the individual nature of AWAs and that confidentiality attaches to the content of a particular AWA. He accepted that an employee who is subject to an AWA can make whatever disclosure he or she wishes of the terms and conditions contained within that AWA, and that an employee is entitled to information about the AWA to which he or she is a party. The objection in these proceedings is that disclosure of the relevant documents or parts of document would provide information that would disclose the fact that other persons have AWAs with Sitel and also the terms and conditions on which those other persons are employed pursuant to AWAs. Such information he argued is not available under the WRA regime.
21. Two critical points are that AWAs are confidential between the employer and the employee and have an individual character rather than a collective character. Clearly, the EA is aware of the agreement, however, Mr Barton pointed to provisions restricting disclosure, which are discussed below. Where the terms and conditions of employees are governed by an award or an enterprise agreement, the terms and conditions are the same for everybody because there's only one agreement, and they are public rather than confidential. They are available on the internet site of the Australian Government, Department of Employment and Workplace Relations, Wagenet Website or from the NSW Department of Commerce, Office of Industrial Relations Website.
22. He described the third “critical dimension” as being that employers like Sitel use AWAs to obtain competitive advantage against another operator in relation to their workforce. There are differing views about whether they succeed or whether they are appropriate, but that is why some employers have chosen to use AWAs. The WRA provides this option. An AWA is not restricted by the common conditions prescribed by an award or a collective agreement, and so the conditions can be tailored if appropriate to individual circumstances, to provide individual incentives. There is greater flexibility.
23. It followed that the information subject to the claim would not be available to Ms Jagoe or others under the WRA, and that employers consider that they are providing that kind of information to the EA on a confidential basis. He conceded that Document 4 may have been given to Ms Jagoe during course of negotiations but once that process had been completed he argued there was no further role for the EA and it had no express power to disclose material to Ms Jagoe. During submissions Ms Campbell appearing for the EA conceded that the document would not be provided to Ms Jagoe but the information it contained would be disclosed as set out in paragraph 13 Mr Robinson’s affidavit. That is if an employee contacts the EA to discuss their AWA before or after it is negotiated, and wants the test explained, it will be. The information whether or not an offer has been to comparable employees would also be advised.
24. Mr Barton also argued that Ms Jagoe has no right to the information about other employees and her employer under the WRA.
25. I do not need to refer to all the provisions which were referred to in the course of argument. Following is a summary of the most important provisions and the arguments arising.
26. Section 83BS of the WRA is an offence provision. It provides:
Identity of AWA parties not to be disclosed
(1) A person (the entrusted person) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party ) as being, or having been, a party to an AWA.
Penalty: Imprisonment for 6 months.
(2) Each of the following is an exception to the prohibition in subsection (1):
(a) the disclosure is made by the entrusted person in the course of performing functions or duties as an AWA official;
(b) the disclosure is authorised by the regulations;
(c) the disclosure is required or permitted by another Act;
(d) the disclosure is authorised in writing by the AWA party.
(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.
(4) In this section:
"AWA official" means:
(a) the Employment Advocate; or
(b) a delegate of the Employment Advocate; or
(ba) a member of the staff assisting the Employment Advocate under section 83BD; or
(c) an authorised officer.
"protected information" means information that was acquired by the entrusted person:
(a) in the course of performing functions or duties as an AWA official; or
(b) from an AWA official who disclosed the information as authorised by the regulations.
27. There is no relevant regulation.
28. Ms Campbell argued that s 83BS does not apply to documents 4 and 5. She said that document 4 could be disclosed during the course of the functions of the entrusted person as established by paragraph 13 of Mr Robinson’s affidavit. He said that upon inquiry, the practice is to explain to employees any aspect of the NDT and the information provided by the employer, including the declaration, before or after approval. Ms Campbell said that there is no difference between providing that information verbally and providing the document. She conceded that the EA would not give out a copy of the document. Further, she said that the provision only protects from a third party, the identity of a person, not the information itself.
29. I consider there is a difference between disclosing information orally and providing a document containing that information, and in this case the information has not been disclosed to Ms Jagoe orally.
30. In relation to document 5, Ms Campbell argued that s 83BS does not apply because it does not identify anyone. I accept that it does not identify the employee, however it does identify the employer as being, or having been, a party to an AWA”. This is apparent from the context of the original request which was refined (T3). It is not necessary for me to decide whether s 83BS precludes identifying a party to an AWA when the substance of the AWA is not disclosed.
31. I acknowledge as Ms Campbell submitted that s 83BS is not a “secrecy provision” included in Schedule 3 of the FOI Act such that it would have effect as an exemption pursuant to s 38.
32. Section 170VH provides that the expiry date of an AWA cannot be more than 3 years after the AWA date but if such a date is not specified, the third anniversary is the nominal expiry date. The nominal expiry date may be extended by written agreement between the employer and employee, however it cannot be more than 3 years after the AWA date. Such an agreement has to meet certain filing requirements.
33. Section 170VN provides that an AWA or ancillary document may be filed with the EA and the EA must issue a receipt if satisfied filing requirements have been met or that a party to the AWA is not or will not be disadvantaged. Section 170VO enumerates the filing requirements, including a declaration whether or not the employer has offered an AWA in the same terms to all comparable employees (1)(b)(iii).
34. Section 170VPA provides additional approval requirements, including (1)(e), that if the employer did not offer an AWA in the same terms to all comparable employees, that “the employer did not act unfairly or unreasonably in failing to do so”.
35. Subject to qualification not relevant here, s 170VPB provides that the EA must approve an AWA for which a filing receipt has been issued, which passes the NDT and meets additional approval requirements.
36. Section 170VPK requires the EA to issue the approved AWA to the employer.
37. Section 170WH prescribes which copies of documents an employer must give to an employee. Relevantly, they include (1)(a) a filing receipt, (b) an approval notice, refusal notice or referral notice and (c) an AWA as approved and (2) any document prescribed by the regulations. That is, the legislation itself deals with the obligations of an employer to provide an employee with information about their AWA.
38. Section 170WHA prohibits a person other than a party to an AWA or a “bargaining agent” for a party to participate in the AWA process unless the EA requests a person who is authorised in writing by a party to an AWA to assist the party by explaining the party’s understanding of the AWA to the EA.
39. Section 170WHB provides that “an entrusted person” must not disclose protected information that that person knows or has reasonable grounds to believe will identify another person (the AWA party) as being or having been a party to an AWA. “Protected information” is that acquired in the course of performing functions or duties as a “Registry official” or “from a Registry Official” who disclosed it as authorised by the regulations. The prohibition is subject to exceptions including where the disclosure is made in the course of performing functions or duties as a registry official, or it is authorised by the regulations, another Act or the AWA party. Mr Barton described this provision as protecting the integrity of AWA regime.
40. Section 170WHC provides that the Industrial Registrar is not obliged to publish an AWA determination but if he or she does, he or she must ensure the publication does not disclose the identity of either party to the AWA. Section 170WHD provides that any hearings in the Australian Industrial Relations Commission (“the Commission”) must be held in private.
41. Section s 170WI empowers the EA to issue a verified copy “of any document filed with, or issued or approved by” the EA or Commission under this Part and “a certificate stating” certain matters. A “verified copy” and a “certificate” may only be issued to a person who is or was a party to the AWA or document verified, or to which the certificate relates. Subsections (3) and (4) are evidentiary provisions in relation to “verified copies” and “certificates”. I accept Mr Barton’s submission that the provision is not mandatory, however, I do not accept his submission that it is confined to the provision of such documents for the purposes of evidence in proceedings between Sitel and Ms Jagoe. I accept Ms Campbell’s submission that s 170WI applies to documents 2 and 3 but not to Document 4 because that document was internally generated. The section does not apply to Document 5 because it concerns another (unidentified) employee of Sitel and therefore could not be given to Ms Jagoe.
42. I accept that there are restrictions on disclosing the identity of a party to an AWA under the WRA. However, my task is to decide whether the documents or parts of them are exempt under the Act.
43. Miss Campbell argued that s 43(b) has two limbs. The first is that the document has commercial value. She argued that there is no evidence of the value of the information or that it would be lost or reduced. The evidence of Ms Armitage is only speculation or assertion. There was no evidence that Sitel enjoyed comparative advantage over its competitors. Further, she said the documents do not disclose how many people do the same kind of work as Ms Jagoe or the composition of the workforce. Also, it is old information, as AWAs have a life of 2 or 3 years. Finally, she argued that we do not know whether the AWA was accepted and therefore there is no certainty for a competitor who might obtain that information.
44. Ms Campbell pointed out that Documents 3 and 4 show different shifts. She referred to Mr Robinson’s evidence at paragraph 25 about “comparable employees”. He said that that term refers to the same kind of work and relates to remuneration and other entitlements, but not necessarily to work patterns. Mr Robinson asserts that it cannot be assumed that the typical hours set out in Document 3 “are a typical or common work pattern applying to the FOI requester or any other employees …”. The definition of “comparable employee” in relation to an AWA means an employee of the employer who does the same kind of work as the employee who is a party to the AWA (s 170VA).
45. In relation to s 43(1)(c)(i) Ms Campbell argued that there was no evidence that disclosure would, or could reasonably be expected to, unreasonably affect Sitel’s affairs.
46. She also argued that there was a public interest in Ms Jagoe being able to know whether or not her AWA was properly examined by the EA in relation to the correctness of the NDT calculation and whether information about her was correct or not. If it was not correct, she could have it amended pursuant to s 48 of the Act. The information in documents 4 and 5 cannot physically identify anyone. Document 4 is “substantially similar” to the AWA (which was not in evidence). Mr Robinson’s evidence was that Document 5 is a standard form that employers are required to fill out and file when seeking approval of an AWA and does not contain details of any particular employee or any particular AWA. He said that Document 5 does not relate to Document 4 in any way.
47. Ms Campbell argued that for s 43(1)(c)(ii) to be met, there must be a real likelihood that prejudice to the operation of the agency would occur, however, in this case there was a mere assertion of prejudice. She referred to Re Angel and Department of Arts Heritage and Environment (1985) 9 ALD 113 at pp 126-127. I do not consider that decision went so far. As I understand the decision, it was that “reasonably” has the same meaning as in s 43(1)(c)(i) as discussed in Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584. That is “… there must be a foundation for a finding that there is an expectation of adverse effect that is not fanciful, imaginary or contrived, but rather is reasonable, that is to say based on reason, namely, ‘agreeable to reason; not irrational, absurd or ridiculous’ (Shorter Oxford Dictionary).”
Consideration
48. The object of s 43 is to “protect, within reasonable limits, the interests of third parties dealing with an agency or undertaking and supply of information to it in the course of that dealing” (Harris v ABC (1983) 5 ALD 545 at 558).
49. In s 43(1)(b) “commercial value” has two meanings. The first is if it is valuable for the purposes of carrying on the commercial activity in which the entity is engaged and the second is if a genuine arms-length buyer is prepared to pay the obtain the information (Cannon and Australian Quality Egg Farms Limited, Office of the Information Commissioner (QLD) 30 May 1994 QAR 491 which considered a similarly worded provision). That case is also authority for the proposition that information must have value to the agency at the time when the section is applied.
50. The question to be answered in respect of s 43(1)(b) is could the commercial value of the information reasonably be expected to be destroyed or diminished if it were disclosed? (Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 123.)
51. In relation to s 43(1)(c)(i) the question is whether the disclosure of the information would or could reasonably be expected to “unreasonably” affect a person adversely. The word is to be given its ordinary meaning (Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111). The determination of whether disclosure would or could be “unreasonable” does not require a balancing of public and private interests. The “public interest” may be taken into account. It will depend on the facts Re Maher and Attorney-General’s Dept (No. 2) (1986) 13 ALD 98, Re Public Interest Advocacy Centre and Dept CS and H (1991) 23 ALD 714 at 725. The “unreasonable” effect must be of substance, not incidental or trivial. In considering s 43(1)(c)(ii), a relevant factor is whether it might be compulsorily required.
52. All relevant factors must be taken into account when determining whether disclosure would have that effect (Searle and Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 438.
53. In Cockcroft and AG’s dept and AIS (1985) 12 ALD 462 at 464 the majority held that “information” in s 43 includes information that is volunteered and information that is supplied under compulsion of law. The phrase “business, commercial or financial affairs” bears the same meaning in the introduction to s 43(1)(c) and in ss (c)(i). It is a comprehensive phrase intended to embody the totality of the money-making affairs of an organisation or an undertaking as distinct from its private or internal affairs.
54. In s 43(1)(c)(ii), the words “could reasonably be expected to prejudice the future supply of information” bear their ordinary meaning and the judgment I have to make is whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those consequences would follow disclosure of the information sought (A-G’s Dept & AI v Cockcroft (1986) FCR 180 at 190, Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111).
55. If the information is out of date it and no longer has commercial value, s 43(1)(c)(ii) would not be satisfied (Re Brown and Minister for Administrative services (1990) 21 ALD 526 at 533.
56. In PIAC and Dept Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714 at 724 the information sought was supplied by pharmaceutical companies seeking approval from the Commonwealth to market a particular product. If it did not supply the information, it would go out of business. It was held that there was no prejudice to future supply of information.
Conclusion
57. I find that the in my opinion, the declaration on Document 2 does have commercial value for Sitel within the meaning of s 43(1)(b) of the Act. When read together with Ms Jagoe’s AWA, that value could be reasonably be expected to be destroyed or diminished if disclosed within the meaning of s 43(1)(b). A competitor would be armed with information which would not otherwise be available and which would or could be used to structure tenders or compete for employees.
58. If that analysis were incorrect as a matter of law, I would find that the information falls within s 43(c)(i), the disclosure of could reasonably be expected to unreasonably affect Sitel adversely in respect of its lawful business, commercial or financial affairs. I come to this conclusion because disclosure could have the same consequences I have set out in relation to s 43(1)(b).
59. Sitel’s case in relation to the parts claimed to be exempt in Document 3 was based on its being read in conjunction with the declaration in Document 2. In my opinion, it follows that if the Declaration in Document 2 is exempt and will not be disclosed, the disclosure of the information set out in Document 3 is not exempt. The document is not exempt pursuant to s 43 of the Act. There will be no disclosure of information which falls within any of the exemptions claimed.
60. For the reasons set out in relation to the declaration in Document 2, I find that the information the subject of the claim in Document 4 is exempt pursuant to s 43(1)(b), or if that is wrong at law I would make the same finding pursuant to s 43(1)(c)(i).
61. For Sitel it was argued that the disclosure of the declaration in Document 5 would disclose information relating to an employee other than Ms Jagoe when Ms Jagoe would not normally be entitled to such information. Document 5 conveys little. It is part of an application made by Sitel for an AWA in respect of an unidentified employee whose kind of work is not known and whose terms of employment are not known. It is a standard form. In the context of Ms Jagoe’s original request and the refinement of that request, it is my view that it identifies Sitel as a party to a concluded AWA. However, the content of the AWA is not known.
62. There is no apparent link between Document 5 and Document 4. Therefore, I do not consider that the information provided in this document is of commercial value within the meaning of s 43(1)(b) or is of a kind to which s 43(1)(c)(i) applies, the disclosure of which would or could reasonably be expected to, unreasonably affect Sitel adversely in respect of its lawful business affairs. Further, its disclosure could not be reasonably expected to prejudice the future supply of information to the Commonwealth or an agency such as the EA.
Decision
63. The reviewable decision is varied as follows. Ms Jagoe is granted access to the following documents:
“Employer Filing Application, Part 1 – Employer Details in relation to filing of AWA No 30102618” referred to as “Document 2” in this decision, subject to the deletion of the declaration appearing at the bottom of the first page of that document;
“The No Disadvantage Test in relation to the filing of AWA No 30102618” referred to as “Document 4” in this decision, subject to the deletion of one line on the first page being the line about half way down the page which is above the line “Declaration that … correspondence”.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 16 February 2005
Date of Decision 29 June 2005
Solicitor for the Applicant Freehills
Counsel for the Respondent Ms Madeline Campbell
Solicitor for the Respondent Australian Government Solicitor
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