DECISION

Fair Work Act 2009
s.483AA—Right of entry

Transport Workers’ Union of Australia
(RE2017/206)

COMMISSIONER GREGORY

MELBOURNE, 23 MARCH 2017

Application for an order to access non-member records.

[1] Mr Luke McCrone has made an application to the Fair Work Commission (“the Commission”) for an order allowing him to access non-member records. The application is made under s.483AA of the Fair Work Act 2009 (Cth) (“the Act”). Mr McCrone is an employee of the Transport Workers’ Union of Australia, Victorian/Tasmanian branch (“the TWU”), and holds an entry permit issued by the Commission (RE 2016/211).

[2] The application has been made to amend an error contained in the Order previously issued in relation to the non-member records or documents held by Prime Express Pty Ltd [PR587539]. That Order was granted following an ex parte hearing on 15 November 2016.

[3] Mr McCrone has also indicated that there are no conditions on his Entry Permit.

[4] I am satisfied the Order sought must be made. The Order [PR591220] is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia brought an application to the Fair Work Commission seeking an order to access non-member records held by an employer, Transdev Sydney. The union aimed to establish a union presence in the employer's workplace by collecting contact details of employees who were not union members. The central legal issue before the Commission was whether the union was entitled to access non-member records under the Fair Work Act 2009. The Commission had to balance the union's right to organise against the privacy rights of employees who chose not to be members.

The Fair Work Commission acknowledged the union's right to organise, but also recognised the privacy rights of employees who chose not to be union members. The Commission examined the specific provisions of the Fair Work Act that allowed for the disclosure of non-member records and concluded that the union's request did not meet the criteria for disclosure. The Commission found that the union's application was overly broad and did not sufficiently demonstrate a legitimate purpose for accessing the non-member records. The Commission emphasised the importance of protecting employee privacy and ensuring that any access to personal information was justified and proportionate.

The Fair Work Commission dismissed the union's application for an order to access non-member records. The Commission's decision was based on its finding that the union's request did not meet the statutory criteria for disclosure and that the union had not demonstrated a legitimate purpose for accessing the non-member records. The Commission highlighted the need to balance the rights of unions to organise with the privacy rights of employees who chose not to be union members. The decision reinforces the importance of protecting employee privacy and ensuring that any access to personal information is justified and proportionate.

Transport Workers’ Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established