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;

(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)…

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

AGLC: United Voice [2016] FWC 4454
Case: [2016] FWC 4454
Decision Date: 5 JULY 2016

CaseChat Overview and Summary

United Voice brought an application against several respondents, seeking an order for them to provide documents relevant to a suspected contravention of an award. The application was heard in the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009 (Cth). The core issue was whether the respondents were required to provide documents that were directly relevant to the suspected contravention of the award. This was a novel issue as it involved the interpretation of the relevant statutory provisions in the context of parallel jurisdictions.

The Commission found that the application was misconceived because the respondents did not hold any documents that were directly relevant to the suspected contravention. It was determined that the documents requested were not in existence, and therefore, no utility would be served by making orders to produce documents that did not exist. The Commission held that the requested documents were not directly relevant to the suspected contravention, and thus, the application was dismissed. The Commission concluded that the documents requested were not directly related to the suspected contravention and, therefore, no orders would be made to produce such documents.

The Commission dismissed the application and made no orders. This decision underscores the importance of ensuring that applications for documents are well-founded and relevant to the matter at hand. The Court's reasoning highlights the need for a clear understanding of the statutory provisions and the specific circumstances of the case. The decision also serves as a reminder that applications for documents that are not in existence or not relevant to the matter will be dismissed.

Orders