Thorson v Pine

Case [2004] FCA 1316

FEDERAL COURT OF AUSTRALIA

Thorson v Pine [2004] FCA 1316

INDUSTRIAL RELATIONS - application for declarative relief – whether notice for the production of documents, purportedly issued under s 86(1A)(c) of the Workplace Relations Act 1996 (Cth), is invalid and of no effect – whether notice must, on its face, identify an actual purpose, by reference to s 86(1) of the Workplace Relations Act 1996 (Cth) – notice invalid

Judiciary Act 1903 (Cth) s 39B(1A)
Workplace Relations Act 1996 s 86

Thorson v Pine [2004] FCA 805, referred to

Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581, discussed

Federal Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499, cited

GRANT THORSON, PETER COSTELLO, ALF DI VIRGILIO, MARK EDWARDS, JOE ESTEVES, MAX HOOD, HUSEIN KARUPOVIC, ANTONIO MADAFFARI, JUSTIN NORMAN, NICK PAPANOLAS, STEVE SAVIC and ANTTI BODNARAK v LISETTE PINE, AN INSPECTOR APPOINTED UNDER S 84 OF THE WORKPLACE RELATIONS ACT 1996 (CTH) and MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD (ACN 007 154 449)

V778 OF 2004

MARSHALL J
12 OCTOBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V778 OF 2004

BETWEEN:

GRANT THORSON, PETER COSTELLO, ALF DI VIRGILIO, MARK EDWARDS, JOE ESTEVES, MAX HOOD, HUSEIN KARUPOVIC, ANTONIO MADAFFARI, JUSTIN NORMAN, NICK PAPANOLAS, STEVE SAVIC and ANTTI BODNARAK

APPLICANTS

AND:

LISETTE PINE, AN INSPECTOR APPOINTED UNDER S 84 OF THE WORKPLACE RELATIONS ACT 1996 (CTH)

FIRST RESPONDENT

MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD
(ACN 007 154 449)
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

12 OCTOBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        IT IS DECLARED THAT:

The Notice purportedly issued pursuant to s 86(1A)(c) of the Workplace Relations Act 1996 addressed to the second respondent for the attention of Simon Gray and dated 7 June 2004 is invalid and of no effect.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V778 OF 2004

BETWEEN:

GRANT THORSON, PETER COSTELLO, ALF DI VIRGILIO, MARK EDWARDS, JOE ESTEVES, MAX HOOD, HUSEIN KARUPOVIC, ANTONIO MADAFFARI, JUSTIN NORMAN, NICK PAPANOLAS, STEVE SAVIC and ANTTI BODNARAK

APPLICANTS

AND:

LISETTE PINE, AN INSPECTOR APPOINTED UNDER S84 OF THE WORKPLACE RELATIONS ACT 1996 (CTH)
FIRST RESPONDENT

MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD
(ACN 007 154 449)
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE:

12 OCTOBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This proceeding raises for consideration the short point whether a notice sent by an inspector to an employer is, on its face, invalid.

  2. The applicants are employees of the second respondent (“Multiplex”). On 7 June 2004, the first respondent (“the inspector”) sent a notice to Multiplex in which it sought to procure, among other things, the name and bank account details of Multiplex’s employees engaged at the “Concept Blue” site at 336 Russell Street, Melbourne on 5 and 6 August 2003.

  3. The applicants are obviously affected by the notice and have raised an objection to…

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Details
AGLC
Thorson v Pine [2004] FCA 1316
Case
[2004] FCA 1316
Decision Date

CaseChat Overview and Summary

Thorson v Pine is a case involving an inspector appointed under the Workplace Relations Act 1996 (Cth) who sought to compel the production of documents from Multiplex, an employer, for investigation purposes. The dispute was brought before the court to determine the validity of a notice issued by the inspector under section 86(1A)(c) of the Act, which sought documents relating to an incident at the Concept Blue site where employees had allegedly stopped work on 5 and 6 August 2003. The primary issue before the court was whether the notice was valid and whether the inspector had the authority to require the production of documents under the specific circumstances outlined in section 86(1A)(c).

The court examined the statutory framework provided by the Act and focused on the requirements for issuing a valid notice under section 86(1A)(c). The court found that the notice in question failed to specify the purpose of the document request, which was a critical omission as it did not allow the respondent to consider whether the requested documents were relevant to any particular purpose. Additionally, the court noted that the notice did not provide the respondent with an opportunity to consider the implications of producing the documents, such as potential self-incrimination. Given the serious consequences associated with the purported exercise of power, the court concluded that the notice was invalid on its face.

In light of the court's findings, it declared that the notice issued to Multiplex was invalid and of no effect. The court's decision highlighted the importance of adhering to statutory requirements when issuing notices for document production, particularly in cases where the potential consequences for the respondent are significant.

Orders

Orders of the court

1. IT IS DECLARED THAT:

The Notice purportedly issued pursuant to s 86(1A)(c) of the Workplace Relations Act 1996 addressed to the second respondent for the attention of Simon Gray and dated 7 June 2004 is invalid and of no effect.

Background

Background to the litigation

On 21 June 2004, Heerey J ordered that:“1.Until the hearing and determination of the proceeding or further order, the first respondent be restrained … from taking any steps to enforce the Notice pursuant to s 86(1A)(c) of the Workplace Relations Act 1996 (Cth) issued by the first respondent to the second respondent and dated 7 June 2004, or to require the production of documents pursuant to it.2.Until the hearing and determination of the proceeding or further order the second respondent be restrained … from providing any documents to the first respondent that may otherwise fall within the terms of the Notice.”Factual Background The inspector is an employee of the Federal Government within its Department of Employment and Workplace Relations. On 27 October 2003 she was appointed as an inspector pursuant to s 84(2)(a) of the Workplace Relations Act 1996 (“the Act”) by a delegate of the relevant Minister. On 10 November 2003 the inspector commenced duties as an investigator with the Building Industry Taskforce (“the Taskforce”). From her reading of investigation files originating in August 2003, the inspector learned of an investigation into “a stop work” at the Concept Blue site on 5 August 2003. On 23 December 2003 the inspector, together with other investigators engaged in the Taskforce, attended the offices of Multiplex and required it to produce certain documents concerning seven Multiplex sites in and around the Central Business District of Melbourne, including the Concept Blue site. The documents sought included the following:“Pay records, however described, covering 5th and 6th August 2003, for all employees of Multiplex, who were employed on the Sites on 5th or 6th August 2003.” On 23 January 2004 the inspector, and another Taskforce investigator, attended the offices of Multiplex and received pay records for Multiplex’s employees who were working on the Concept Blue site on 5 and 6 August 2003. Pursuant to a notice issued, in purported reliance on s 86(1A)(c) of the Act, the inspector required Multiplex to produce further documents relating to the Concept Blue site. In response to that notice, Multiplex produced documents including “Employee Weekly Time Sheets” for the pay weeks ending 5 and 12 August 2003 respectively, and pay records from 1 to 6 August 2003 for the Concept Blue site. During May 2004, the inspector and other Taskforce investigators conducted interviews with “Multiplex Managers” and obtained evidence which, in their view, showed that Multiplex employees had stopped work and taken (in the view of the inspectors) what appeared to be industrial action on 5 and 6 August 2003 at the Concept Blue site. By Email of 31 May 2004, Mr Randall Fuller from Multiplex advised the Taskforce that the “action taken on 5 August was in accordance with established custom and practice”. Presumably this was a reference to the carrying out of a safety audit after a workplace death on site. On 2 June 2004 the Deputy Director, Operations of the Taskforce wrote to Mr Simon Gray, a director of Multiplex, advising that in light of Mr Fuller’s “memo”, the Taskforce would “continue to investigate the circumstances of alleged breaches of sections 178 and 187AA of [the Act] …” at named Multiplex sites, including Concept Blue.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J
Cases such as the ANZ case deal with a statutory regime so far removed from what is provided for by the Act and s 86 in particular, to be of no assistance in the resolution of the current issue before the Court. As counsel for the inspector said:“...we accept that the ANZ case was a different statutory regime and I suppose this discussion illustrates the dangers in travelling outside the regime into general observations in other contexts.”Conclusions For the foregoing reasons, in my opinion, the notice purportedly issued by the inspector on 7 June 2004 is invalid on its face. In summary, it failed to set out the purpose the inspector had in mind, that is, the purpose of ascertaining whether the requirements of s 187AA had been observed. In so doing, it failed to give the recipient an opportunity to consider whether what it was required to produce was referable to any specific purpose. This occurred in circumstances where draconian penalties and abrogation of a right to protect oneself against self-incrimination potentially flowed from the purported exercise of power.Remedy Counsel agreed that in the event that the applicants’ submissions were accepted by the Court it was appropriate to make the following declaration:“The Notice purportedly issued pursuant to s 86(1A)(c) of the Workplace Relations Act 1996 addressed to the second respondent for the attention of Simon Gray and dated 7 June 2004 is invalid and of no effect.”

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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