United Voice

[2016] FWC 4454

[2016] FWC 4454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 505 - Application to deal with a right of entry dispute

United Voice
(RE2016/442)

DEPUTY PRESIDENT SAMS SYDNEY, 5 JULY 2016

Right of entry dispute – suspected contravention of Award – request to provide documents which are ‘directly relevant to the suspected contravention’ – parallel jurisdictions – application misconceived – no relevant documents – no utility in the making of orders to produce documents which do not exist – documents not ‘directly relevant to suspected contravention’ – no orders made – application dismissed.

[1] By application, filed under s 505 of the Fair Work Act 2009 (the ‘Act’), United Voice (the ‘Union’) seeks orders from the Fair Work Commission (the ‘Commission’) that AHS Hospitality Pty Ltd (the ‘respondent’) provide documents which the Union considers are ‘directly relevant to a suspected contravention’ of the Hospitality Industry (General) Award 2010 (the ‘Award’). The suspected contravention concerns the creation of an Individual Flexibility Arrangement (IFA) for the Union’s member, Ms Sarah Koerner, who is employed as a Room Attendant at the Kurrajong Hotel, Barton, Canberra. The Union contends that the IFA does not result in Ms Koerner being ‘better off overall’ when compared to the Award and that the respondent misrepresented to Ms Koerner that this was the case.

[2] Sections 505-511 of the Act set out the powers of the Commission to deal with disputes about the operation of Part 3-4. The relevant provisions are as follows:

505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

[3] The present dispute concerns the right of the Union to require the respondent to produce, or provide access to a number of records and documents which the Union claims are ‘directly relevant to the suspected contravention’. That right is found at s 483 of the Act as follows:

483 Later access to record or document

Later access to record or document
(1) The permit holder may, by written notice, require an affected employer to produce, or provide access to, a record or document (other than a non-member record or document) that is directly relevant to the suspected contravention on a later day or days specified in the notice.

(1A) However, an affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices
(2) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

(3) The notice may be given:

(a) while the permit holder is on the premises; or

(b) within 5 days after the entry.

Affected employer must not contravene requirement
(4) An affected employer must not contravene a requirement under subsection (1).

Where record or document may be inspected or copied
(5) The permit holder may inspect, and make copies of, the record or document at:

(a) the premises; or

(b) if another place is agreed upon by the permit holder and the affected employer—that other place.

[4] Section 345 deals with misrepresentations as to a person’s workplace rights and is expressed as follows:

345 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about:

(a) the workplace rights of another person; or

(b) the exercise, or the effect of the exercise, of a workplace right by another person.

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

[5] The Union had requested the following documents which it claims the respondent has not provided:

‘a. Document mentioning an IFA which purports to vary clause 12.4 of the Hospitality Industry General Award 2010.
b. Any Human Resources document reflecting an understanding of the better off overall test.
c. Any document showing the company’s interpretation of the better off overall test.
d. Any document showing the identities of those employees or officers of AHS who were responsible for the development of the IFA.’

[6] There is no doubt that the Commission has the power to make orders of the kind sought by the Union. In doing so, the Commission would be exercising a discretionary power (see para [2] above). Nevertheless, there are a number of statutory pre-conditions to the making of such orders which do not appear to be in contest. These are:

(a) Mr Stefan Russell-Uren (the ‘permit holder’) is an authorised permit holder under the Act (Parts 3-4).
(b) Pursuant to s 481, the permit holder issued a valid entry notice on 15 February 2016 to enter the respondent’s premises on 17 February 2016 to investigate suspected contraventions of the Award.
(c) The permit holder made a later request for copies of documents, pursuant to s 483 of the Act.
(d) Some, but not all of the documents sought by the permit holder were provided.
(e) The documents not provided are identified at para [5] above.

Individual Flexibility Arrangements

[7] Sections 144 and 145 of the Act deal with Individual Flexibility Arrangements (IFAs) under a Modern Award. The sections are set out as follows:

144 Flexibility terms

Flexibility terms must be included
(1) A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.

Effect of individual flexibility arrangements
(2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:

(a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and

(b) the arrangement is taken, for the purposes of this Act, to be a term of the modern award.

(3) To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.

Requirements for flexibility terms
(4) The flexibility term must:

(a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and

(b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and

(c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and

(d) set out how any flexibility arrangement may be terminated by the employee or the employer; and

(e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:

(i) in all cases—by the employee and the employer; and
(ii) if the employee is under 18—by a parent or guardian of the employee; and

(f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.

(5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.

145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term

Application of this section
(1) This section applies if:

(a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and

(b) the arrangement does not meet a requirement set out in section 144.

Arrangement has effect as if it were an individual flexibility arrangement
(2) The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances
(3) If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.

Flexibility arrangement may be terminated by agreement or notice
(4) The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination.

[8] Cl 7 of the Award is consistent with the requirements for the making of an IFA under the Act. Cl 7 is set out below:

7. Award flexibility

7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:

(a) arrangements for when work is performed;

(b) overtime rates;

(c) penalty rates;

(d) allowances; and

(e) leave loading.

7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.

7.3 The agreement between the employer and the individual employee must:

(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and

(b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.

7.4 The agreement between the employer and the individual employee must also:


(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;

(b) state each term of this award that the employer and the individual employee have agreed to vary;

(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;

(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and

(e) state the date the agreement commences to operate.

7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.

7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.

7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure that the employee understands the proposal.

7.8 The agreement may be terminated:


(a) by the employer or the individual employee giving 13 weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or

(b) at any time, by written agreement between the employer and the individual employee.

Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).

7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a), subject to four weeks’ notice of termination.

7.10 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.

The proceedings

[9] Attempts were made by the Commission to settle the dispute between the parties on 8 April 2016. This proved unsuccessful and directions were issued on 22 April 2016 in preparation for a hearing of the application on 30 May 2016. Mr Russell-Uren appeared for the Union and Ms R Bernasconi, Solicitor, appeared for the respondent, with permission to appear being granted, pursuant to s 596 of the Act.

The Union’s Case

[10] Mr Russell-Uren relied on his own affidavit, which set out the background to this dispute. He was not required for cross examination.

[11] In his affidavit, Mr Russell-Uren said that in November 2015, he had been provided with a copy of an IFA Ms Koerner had signed with her employer. He formed the view that the IFA did not comply with the Award in two respects:

• it varied cl 12.4 dealing with the requirement for employers and employees to agree on a pattern of work which can be altered in writing. Mr Russell-Uren believed that the IFA sought to remove cl 12.4, which negated the overtime clause at 12.7 of the Award; and



• overtime under the IFA was only paid in excess of 38 hours per week. This has an indirect consequence for the payment of overtime on hours other than in those circumstances.

[12] Mr Russell-Uren said that the respondent had offered Ms Koerner additional hours in exchange for removing certainty of hours and overtime. However, ‘additional hours’ is not a matter covered by the Award. Mr Russell-Uren believed that the employee was not ‘better off overall’ in accordance with the decision in MSS Security Pty Limited [2013] FWC 5424. This decision said that a vague commitment as to a future intention was not enough to offset the loss of rights under an IFA; See also: Bupa Care Services Pty Ltd; P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillimbah and others [2010] FWAFB 2762.

[13] Mr Russell-Uren submitted that at the time Ms Koerner signed the IFA, acknowledging she was ‘better off overall’, there had been a misrepresentation of her workplace rights. The above circumstances triggered his suspicions that there may have been a contravention of s 345 of the Act.

[14] Mr Russell-Uren had contacted Ms M de Bondt, the respondent’s Manager, Senior People and Culture and Ms B Boyce of the respondent’s Human Resources team. He then served a s 481 notice of entry on the respondent. When he attended the Hotel on 17 February 2016, he requested a number of documents and was told they were not kept on site or accessible from the site. The next day he sent a s 483 request for the following documents:

(a) Documents mentioning an IFA which purports to vary clause 12.4 of the Award;
(b) Any written communication relating to the engagement of Ms Koerner or the development of her IFA.
(c) the Contract of employment for Ms Koerner.
(d) Any Human Resources document reflecting an understanding of the better off overall test.
(e) Any document showing the company’s interpretation of the better off overall test.
(f) Any document showing the identities of those employees or officers of AHS who were responsible for the development of the IFA.

[15] On 4 March 2016, Mr Russell-Uren received documents meeting the above requests at paras (a), (c) and (d). He emailed Ms de Bondt to express his concern at the failure to provide any documents in the remaining categories. Ms de Bondt replied, inter alia, as follows:

‘I understand that you believe that there are further specific documents that AHS has failed to provide. After further review, to the best of our knowledge there are no documents in classes (b); (e) ;(f) or (g) that we have failed to provide that relate to the specified contravention.’

[16] Mr Russell-Uren believed that the outstanding documents were relevant because:

• Category (b) was a category of documents which would demonstrate the consideration given by the respondent to the impact of the purported IFA and therefore show knowledge or lack thereof;



• Category (e) was a category of documents which would demonstrate what the respondent’s subjective understanding of the ‘better off overall’ test actually was. This would capture any secondary documents mentioning the better off overall test. This in turn would bear on the assessment of the respondent’s state of mind at the time of the representation;



• Category (f) was a category of documents which would identify how the respondent saw, or perceived the ‘better off overall’ test as operating; and



• Category (g) was a category of documents which would identify those people who actually prepared the IFA. In order to show a misrepresentation it was necessary to identify the person who made the representation also had the requisite knowledge under s 793.

[17] On 9 March 2016, Mr Russell-Uren asked Ms de Bondt to:

‘confirm that there are no documents in classes (b), (e), (f) or (g) which you have failed to provide whether you regard them as relevant or not [original emphasis].’

[18] In written submissions, Mr Russell-Uren claimed that his suspicions were premised on a misrepresentation to employees, which contravened s 345 of the Act. To establish a misrepresentation, it must be shown that:

(a) a representation was made about the rights of a worker;
(b) that it was false or misleading; and
(c) that the respondent knew or was reckless as to its falsity.

[19] Mr Russell-Uren put that documents demonstrating the respondent’s state of mind at the time of the misrepresentation were relevant to show, in proving a fact of misrepresentation, and the non-provided documents were relevant to this conclusion.

[20] In oral submissions, Mr Russell-Uren agreed that the Federal Court (FCA) and Federal Circuit Court (FCCA) have jurisdiction to deal with breaches of s 483 of the Act. Mr Russell-Uren said that ‘the documents themselves aren’t relevant, the only thing that’s relevant is whether or not the notice has been complied with.’

[21] Mr Russell-Uren put that although there may be a parallel jurisdiction between the Commission and the Courts, this does not imply a reduction in the Commission’s jurisdiction. Mr Russell-Uren distinguished the powers of the Courts to impose penalties for breach and the proceedings under s 505, initiated by a Union, to facilitate the requisition of documents. Mr Russell-Uren added:

‘… [I]f this Commission orders the respondent to produce the documents, then there will be in effect be a finding that it has contravened section 483, which as I’ve mentioned, is the civil penalty provision.’

[22] Mr Russell-Uren rejected the respondent’s submission that the documents do not actually exist. He contended that this claim was inconceivable, illogical and improbable. He submitted that the respondent did not say the documents do not exist. Rather, it had said there are no documents in the categories which were relevant to the specified contraventions. Moreover, there was no evidence, only a submission, that no documents existed; See: Arcidiacono T/A Rose Cleaning Service [2016] FWCA 1769 and R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [1965] HCA 50.

The respondent’s case

[23] The respondent submitted that the Commission should not arbitrate this dispute because any alleged failure to comply with s 483 of the Act, has a complete remedy by enforcement in the FCA or the FCCA, pursuant to Item 25 of s 534(2) of the Act. It was put that the Commission should assume the respondent had carefully considered its compliance with the notice, when it was open to civil remedies. Simply put, it did not provide documents which it did not have. In addition, the potential for parallel proceedings in the Commission and the Courts about the same issues should be avoided. If the Union believed there to be a breach in relation to the IFA, or the s 483 notice, the appropriate course is to commence Court proceedings for such a breach.

[24] In any event, the respondent submitted that the underlying dispute concerning the IFA between it and Ms Koerner, could be resolved, at any time, by Ms Koerner giving notice to terminate the IFA. This had not been done since the issue first arose in mid-November 2015. The respondent further put that there was no evidence that the respondent had not fully complied with the notice to produce. Mr Russell-Uren’s subjective opinion as to relevance, is unpersuasive.

[25] In a secondary argument, the respondent submitted that if the Commission decided to arbitrate the dispute, it would make no orders because the alleged documents in the categories sought, do not exist. In addition, the documents sought were not sufficiently particularised and must be ‘directly relevant to the suspected contravention’. There is no power vested in the Commission to widen the scope of documents expressly identified in s 483 of the Act (s 505(5)). In addition, s 505(4) requires the Commission to take account of fairness between the parties in dealing with the dispute. Bearing in mind the history of the matter, fairness would dictate that no orders would be made. Finally, any orders the Commission may be minded to make which are addressed to documents which are subject to privilege, should be expressly excluded from the order to produce.

[26] In oral submissions, Ms Bernasconi stressed that non-compliance with the notice is a serious matter. The respondent had made it clear to the Union on several occasions, in the conciliation and again in submissions, that there are no further documents to produce. The onus is on Mr Russell-Uren to provide a cogent basis for insisting that there are documents to produce, in the categories identified in the notice.

[27] Ms Bernasconi added that there are serious questions as to whether the s 483 notice is properly confined, because the documents sought are not specifically identified. The order sought should properly be narrowed to documents relevant to Ms Koerner’s particular situation. Ms Bernasconi further submitted that the documents sought do not even go to the underlying dispute of whether Ms Koerner is ‘better off overall’ under the IFA, compared to the Award.

[28] In reply, Mr Russell-Uren put that the question of whether Ms Koerner is ‘better off overall’ is a qualitative judgement, ultimately determined by a Court, or as agreed by the parties. It is a separate matter to the issue of the notice to produce documents.

[29] Secondly, Mr Russell-Uren observed that the respondent was having a ‘bet both ways’ when, on the one hand, it claimed that the documents do not exist and, on the other, submitted that the notice is too broad and should be narrowed. If the documents do not exist, that is a complete defence to the application brought by the Union.

CONSIDERATION

[30] By reference to the Commission’s general dispute powers under s 595 of the Act, there can be no doubt that the Commission may deal with a dispute under s 483 of the Act, by means of mediation, conciliation or by making a recommendation. However, the express provisions under s 505(2), empower the Commission to deal with a dispute by arbitration and the making of any orders it considers appropriate, about any matter arising under Part 3-4 of the Act. This must mean that the Commission has the power to arbitrate, and make any order the Commission considers appropriate in respect to a notice to produce made under s 483. Conversely, this discretionary power must also include the discretion not to make any orders (as argued by Ms Bernasconi).

[31] Conciliation was attempted, but was unsuccessful. I am now being asked to make orders by way of arbitration, although that does not preclude me from taking any other course available to the Commission, and which I consider appropriate under s 595 of the Act. For the following reasons, I decline to make the orders sought by the Union and intend to dismiss this application. What follows are my reasons for doing so.

[32] At the outset, it is necessary for the Commission to comment on the permit holder’s submissions. Some of these submissions might be described as creative, but for my own part, I found the permit holder’s submissions to be either misconceived, illogical or absurd.

[33] Firstly, the permit holder put that, ‘The documents themselves aren’t relevant, the only thing that’s relevant is whether or not the notice has been complied with.’ This is patently absurd. If this submission is correct, it would overturn the well-known and long established jurisprudence of the Courts and the Commission dealing with the principles relating to the production of documents. In effect, this submission means that all a party has to do is seek an order for the production of any document whatsoever, notwithstanding its relevance or existence, and a failure by the party to whom the notice is directed to do so, could result in breach proceedings.

[34] On that reasoning, a person/party to whom the order was directed could not contest the notice to produce by seeking to have it varied or set aside. The submission entirely ignores the express words in s 505(1) that the documents must be ‘directly relevant to the suspected contravention’. The permit holder reinforced his curious reasoning when he also submitted:

‘That is, if this Commission orders the respondent to produce the documents, then there will in effect be a finding that it has contravened section 483, which as I’ve mentioned, is the civil penalty provision.’

As a matter of law, it does not follow that the non-production of documents, will have the automatic effect that the occupier or the affected employer has contravened s 483 of the Act.

[35] Secondly, the permit holder submitted that the words used by Ms de Bondt (see para [15]) do not mean that the documents do not exist. This submission is convoluted nonsense. Ms de Bondt was responding directly to what the permit holder was asking for, and responding exactly to the language in s 483, which describes a document which is ‘directly relevant to the suspected contravention’. In other words, Ms de Bondt’s precise, unequivocal and directly on point response was in answer to the statutory test as to the nature of the documents which might fall within the scope of s 483 of the Act.

[36] Thirdly, the permit holder put that the Commission should ‘flatly disregard’ Ms de Bondt’s view (that no relevant documents were in existence) because her view was not supported by evidence. This submission is misconceived. The evidence is contained in a letter to Mr Rusell-Uren from Ms de Bondt dated 8 March 2016, in which she, with appropriate authority as General Manger, People and Culture, gave such an assurance. In my opinion, it is safe to assume that the respondent had carefully and thoroughly satisfied itself that it would not be liable for a civil penalty, in the event such a proceeding established a breach of the IFA or the s 483 notice to produce. It is incorrect to assert that Ms de Bondt’s view was only made in submissions. Indeed, if the permit holder did not consider this letter was evidence, it is difficult to comprehend why he included the letter in his own evidence.

[37] Fourthly, in an email to Ms de Bondt in response to her letter, the permit holder asked:

‘For clarity can you please confirm that there are no documents in classes (b),(e),(f) or (g) which you have failed to provide whether you regard them as relevant or not.’

[38] This was an illogical and impossible request. The nonsense of this request needs only to be seen by asking the following question. How can an employer determine whether a document is relevant, or not, if there is no such document?

[39] Fifthly, it is obvious that the permit holder has a copy of Ms Koerner’s IFA. However, it seems rather curious that he included a number of extraneous documents in his evidence, but excluded the very document on which this dispute is centred. It is difficult to make any assessment as to whether other documents are ‘directly relevant to the suspected contravention’ when the primary source document (the IFA), indeed, the trigger for the permit holder’ssuspicions, was not even tendered in evidence.

[40] Finally, if the underlying dispute is about whether Ms Koerner is ‘better off overall’ under the IFA compared to the Award, it is readily resolvable (at least prospectively) by Ms Koerner giving notice of her intention to terminate her IFA. There was no evidence that in the eight months since this dispute was first raised, such notice was given. While I accept that there may be issues of underpayment arising from the period the IFA was in force (if the permit holder is ultimately correct about the standing of the IFA), the logic escapes me as to why the Union did not advise Ms Koerner to immediately give notice of termination, if it believed she was ‘not better off overall’ than under the Award. Why prolong an alleged disadvantage, when it could have been so easily attended to by addressing the very basis for the permit holder’s suspicions? It makes no sense.

[41] In my view, the disposition of this matter self-evident. It was made pellucidly clear to the permit holder on a number of occasions, including in the proceedings before me, that there are no documents in the classes of documents, to which the proposed notice to produce was directed. As earlier mentioned, the permit holder included in his evidence Ms de Bondt’s letter of 8 March 2016. The respondent’s legal representative merely reaffirmed that position in her submissions.

[42] In the ordinary course, where assurances of this kind are made by a responsible employer and reinforced on instructions to the employer’s legal representatives, that should be the end of the matter. Mr Russell-Uren’s reply submissions seemingly acknowledged as much when he said:

‘If the documents do not exist and the section 483 notice complies with the Fair Work Act, than that is a complete defence, not that there’s any evidence substantiating it, but that is a complete defence to the application brought.’

[43] That said, I agree with Ms Bernasconi that a s 483 notice is a serious matter. Given the potential for civil penalties in a Court, it would be a reckless and/or careless employer who denied the existence of documents which it knew existed or did not carefully undertake wide-ranging enquiries as to whether such documents did exist. I am satisfied that the respondent had thoroughly and carefully undertaken an investigative exercise to be assured that no documents existed, in the categories of documents set out in the s 483 notice. It follows that this is a complete defence of the application.

[44] Unless there was some sound basis to believe that these assurances were false, it would be a barren exercise to make an order to produce document/s, which I am satisfied do not exist. The futility of making such an order is a very compelling reason why no such order should be made. The permit holder has provided no evidentiary basis (let alone a sound one), on which the Commission would conclude that the respondent is knowingly withholding document/s. It is necessary to add that the mere suspicion of the permit holder that the respondent has such documents, and by logical implication may be wilfully and unlawfully failing to provide them, is insufficient grounds to satisfy the Commission such an order should be made.

[45] Even so, I consider there is considerable force to Ms Bernasconi’s submission that if the permit holder believes that there is a contravention of either the IFA provisions of the Act, or the s 483 notice to produce provisions, there is a readily available avenue to commence Court proceedings in the FCA or the FCCA. I accept the potential for parallel proceedings about the same subject matter should be eschewed, particularly where the Commission’s powers are circumscribed by the express provisions of s 483, whereas the Courts have jurisdiction to determine compliance, breach and penalty. This fact further tells against the exercise of my discretion to make the orders sought by the permit holder.

[46] Putting these matters aside, I am not satisfied that the requested documents (even if they exist) would actually contribute to a resolution of the underlying dispute of whether Ms Koerner was ‘better off overall’ compared to the Award. It seems to me that that exercise is conveniently and properly undertaken by an examination of the provisions of the IFA against the Award, in the context of Ms Koerner’s working arrangements; all of which would be within the knowledge of the permit holder and Ms Koerner. To suggest that this comparative exercise is aided by documents which may reflect the respondent’s understanding or interpretation of the BOOT or management’s intentions when developing the IFA are irrelevant to the legal test of whether a person is ‘better off overall’ under the IFA, compared to the Award. While it might be of some academic interest to the permit holder, in my opinion, he has all the documents he needs to make such a judgement and take the appropriate steps, if there is a belief that a contravention has occurred.

[47] Finally, the above considerations lead me to conclude when considering fairness between the parties as required by s 505(4) of the Act, that fairness weighs in favour of not making the orders sought by the permit holder.

[48] For the aforementioned reasons, I decline to make any orders in this matter. The application will be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr S Russell-Uren for United Voice.

Ms R Bernasconi, Solicitor with Ms T Kakosckefor the respondent.

Hearing details:

2016:

Sydney,

30 May.

Printed by authority of the Commonwealth Government Printer

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