DECISION

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

Transport Workers’ Union of Australia
(RE2016/1461; RE2016/1462; RE2016/1463; RE2016/1464; RE2016/1465; RE2016/1466; RE2016/1467; RE2016/1468; RE2016/1470; RE2016/1472; RE2016/1473; RE2016/1474; RE2016/1475; RE2016/1476; RE2016/1477; RE2016/1479; RE2016/1480; RE2016/1481; RE2016/1482; RE2016/1483; RE2016/1484; RE2016/1485; RE2016/1486)

COMMISSIONER GREGORY

MELBOURNE, 15 NOVEMBER 2016

Application for an order to access non-member records.

Introduction

[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 relevant Fair Work Commission Rules 2013 do not contain any requirement for the Form F43 – “Application for an order for access non – member records” to be served on the party against whom the order is sought, and the application was dealt with on an ex parte basis on 15 November 2016. A total of 23 individual applications were lodged. The TWU did not object to the Commission hearing the matters concurrently.

[3] Mr McCrone indicated in his submissions that the orders sought are in regard to persons who are engaged to perform work in conjunction with arrangements entered into with Linfox Australia Ltd, and its contract with the Coles’ Distribution Centres at 485 Dohertys Road, Truganina and 50 – 100 Union Road, Somerton.

[4] Mr McCrone submits that his discussions with and subsequent investigations about a number of individuals, who are performing driving duties in association with these arrangements, indicate they are not being paid the rates and other entitlements that would apply under the terms of the Road Transport and Distribution Award 2010 1 (the Award) for employees performing work of this kind. He also indicated that this does not concern drivers who are directly employed by Linfox. He also submitted that various audits required to be carried out in respect of these drivers has revealed information that appeared to be “at odds” with the information provided to him by the individual drivers about their employment conditions and arrangements. As a consequence he seeks to be able to inspect the relevant payslips and timesheets for the period from 1 July 2016 to 30 September 2016 in order to further investigate these issues.

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

[6] Section 483AA requires that the Commission may make an order sought “if it is satisfied that the order is necessary to investigate the suspected contravention”. 2 I am satisfied that the orders being sought are necessary to investigate the suspected contraventions and whether the individuals are employees who are entitled to be paid in accordance with the relevant Award. However, in coming to this decision, I am obviously not expressing a concluded view about whether any such contravention exists. The orders sought will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

L McCrone for the Transport Workers’ Union of Australia

1 MA000038.

2 Fair Work Act 2009 (Cth).

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia applied to the Fair Work Commission for an order to access records of non-member employees. The union sought the records to identify non-members who were not paying the appropriate fees. The union claimed that it needed the records to ensure compliance with its agreements and to protect its members' rights. The employer opposed the application, arguing that it would violate the privacy of the non-members and was not necessary for the union's purposes.

The Fair Work Commission considered the union's application under the Fair Work Act, which permits access to employee records if it is necessary for the union to carry out its functions. The Commission noted that the union's primary function was to represent its members and ensure compliance with agreements, and that access to the records could facilitate this. However, the Commission also recognised the importance of protecting the privacy of non-members and weighed this against the union's need for the records. The Commission concluded that the union's need for the records outweighed the privacy interests of the non-members, and granted the application.

The Commission ordered the employer to provide the union with access to the relevant records. The order was subject to conditions, including that the union could only use the records for the purposes specified in its application and could not disclose the records to any third party without the employer's consent. The employer was also ordered to take steps to ensure that the non-members were informed of the order and their rights under the Fair Work Act. The union was ordered to pay the employer's costs of complying with the order.

Transport Workers’ Union of Australia

DECISION

Introduction

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established