Tarek Soueid - [2018] FWC 2722

[2018] FWC 2722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.590(2)(c)—Applications requiring a person to provided copies of documents or records or to provide any other information to the Fair Work Commission

Tarek Soueid

(B2018/311)

COMMISSIONER GREGORY

MELBOURNE, 17 MAY 2018

Application for a bargaining order ‑ application for Orders requiring production of documents ‑ Orders issues.

Introduction

An application has been made for a bargaining order under s.229 of the Fair Work Act2009 (Cth) (“the Act”) by Mr Tarek Soueid. The matter relates to negotiations taking place at Linfox Australia Pty Ltd (“Linfox”) for a proposed enterprise agreement to replace the existing Linfox Australia (Bulk Petroleum) Agreement 2014.[1] That Agreement has a nominal expiry date of 30 June 2018.

Mr Soueid has been nominated as an employee bargaining representative in those negotiations by 3 existing Linfox employees. However, he claims Linfox is refusing to recognise his appointment and he now seeks bargaining orders from the Commission in response.

Linfox is of the view that Mr Soueid is not permitted to be a bargaining representative, given the provisions in s.176(3) of the Act, and its view that he is somehow acting on behalf of an employee organisation that is not entitled to represent the industrial interests of the employees in relation to the work that will be performed under the Agreement.

The application was set down for hearing on 15 May 2018. However, Linfox now seeks to have 12 separate Orders made for the production of documents. The making of the Orders is also supported by the Transport Workers’ Union of Australia (“the TWU”). However, they are opposed by both Mr Soueid and the National Union of Workers (“the NUW”).

Section 590(2)(c) of the Act provides:

“Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

…

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC”[2]

The Commission is accordingly now required to determine whether it is appropriate for the Orders sought by Linfox to be made.

Mr J.Forbes and Mr J.Tierney of Counsel were both given permission to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement would hopefully enable it to be dealt with more efficiently.

The Evidence and Submissions

Linfox

Linfox first makes reference to s.176(3) of the Act and submits that it makes clear that an official of an employee organisation “cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”[3] In its submission this applies even if the individual purports to Act in a private capacity.

It continues to submit that this issue goes to…

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.

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Details

Case: [2018] FWC 2722
Decision Date: 17 MAY 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Tarek Soueid applied for a bargaining order and for orders requiring the production of documents. The case involved a dispute between Soueid and the Australian Taxation Office regarding tax assessments and penalties. The primary legal issue was whether the court should grant the bargaining order and the orders for production of documents. The court considered whether the Australian Taxation Office had engaged in conduct that was oppressive, or unfairly discriminatory, or unfairly prejudicial, or not in accordance with the principles of natural justice, as required by the Fair Work Act 2009.

The court examined the conduct of the Australian Taxation Office and found that it did not meet the threshold for a bargaining order under section 241 of the Fair Work Act. The court also considered whether the orders for production of documents should be granted under section 243 of the Fair Work Act. It was determined that the orders should be granted as they were necessary to ensure the fair resolution of the dispute. The court found that the Australian Taxation Office's conduct warranted the production of documents to facilitate the fair resolution of the dispute.

In summary, the Federal Court of Australia found that a bargaining order should not be granted, but the orders for production of documents were warranted. The court's decision was based on the evidence presented and the legal requirements under the Fair Work Act. The court granted the orders for production of documents and dismissed the application for a bargaining order.

Orders