United Voice v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

[2016] FWC 9108

[2016] FWC 9108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

United Voice
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(C2016/7153)

DEPUTY PRESIDENT KOVACIC CANBERRA, 19 DECEMBER 2016

Appeal against decision ([2016] FWC 8209) of Commissioner Riordan at Sydney on 18 November 2016 in matter number AG2016/3877 – stay application – request for access to Form F16 and F17 - application for an order for the production of documents - stay application dismissed –request for access to Form F16 and F17 refused – order for the production of documents refused.

[1] On 5 December 2016 the Fair Work Commission (the Commission) received an appeal from United Voice (the Appellant) under s.604 of the Fair Work Act 2009 (the Act) against the decisions of Commissioner Riordan issued on 15 and 18 November 2016 1 (the Decisions). The Decisions concerned an application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (the Respondent) seeking approval of the JBU Enterprise Agreement 20162 (the Agreement). Commissioner Riordan approved the Agreement in his decision of 18 November 2016. In lodging its appeal, the Appellant sought a stay of the decision to approve the Agreement.

[2] On 7 December 2016 the Appellant wrote to the Commission again requesting that it be provided with copies of the Form F16 – Application for approval of enterprise agreement (other than a greenfields agreement) and Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) filed in respect of the Agreement. This request was previously dealt with in the Commissioner’s decision of 15 November 2016, which declined to provide the Appellant with copies of those documents.

[3] The application for a stay and the request for the release of the Form F16 and F17 were heard on 13 December 2016. At that hearing, the Appellant stated that in view of its appeal having been listed for hearing in January 2017 it no longer pressed its application for a stay, though it continued to press for access to the Form F16 and F17.

[4] The Appellant subsequently wrote to the Commission on 14 December 2016 confirming that it no longer pressed its application for a stay and requested that the Commission:

“…exercise its discretion under section 590 of the Fair Work Act and seek the production of the following:

… in relation to the 4 employees (‘the employees’) covered by the Agreement:

• their letters of engagement, contracts of employment, remuneration reviews and any document or thing (including electronic) relating to their remuneration; and



• the employees’ position descriptions, any document or thing (including electronic) relating to their classification, written any generic directions concerning work and or any document (including electronic) concerning the general directions that determine employees duties.

We made this request of Commissioner Riordan in our submission 22 September 2016. The request was not specifically determined but refused.” (Emphasis as per original)

[5] This decision therefore deals with the Appellant’s request for the release of the Form F16 and F17 and its request for the production of the abovementioned documents.

[6] For the reasons set out below, I decline the requests to release the Form F16 and F17 and the other documents sought by the Appellant.

Background

The Commissioner’s Decision regarding the release of the Form F16 and F17

[7] As previously noted, the Commissioner’s decision of 15 November 2016 declined to release the Form F16 and F17. The relevant aspects of the Commissioner’s decision in this regard are set out below:

“[2] United Voice has sought copies of the F16 and F17 that were lodged with the Agreement. The Fair Work Commission (FWC) has refused to provide United Voice (UV) with a copy of these documents on the basis that United Voice were not appointed as a bargaining representative by any of the employees, nor were they a default bargaining representative in accordance with section 176 of the Act.

[3] United Voice have continued to press for access to the F16 and F17 forms, as well as the right to be heard in relation to the FWC’s deliberations as to the Agreement’s conformity with the provisions of the Act.
…
[34] I can see no benefit in making the F16 and F17 available to United Voice. In accordance with section 590 of the Act, I formally deny that request. It is not appropriate to allow United Voice to undertake some form of forensic investigation into the approval process of the Agreement in the hope of finding a procedural error. That is the role of the FWC. It is a function that cannot be “contracted out” to United Voice or any other employer or employee association. I accept that access to this type of information is appropriately determined on a case by case basis and that each case must be determined on its merits. In this matter, I can see no useful purpose.” 3

The grounds of appeal

[8] The Appellant grounds of appeal are:

(i) the Commissioner erred in failing to properly undertake the task mandated by paragraph 186(2)(a) of the Act to be satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement; and
(ii) the Commissioner erred in failing to properly undertake the task mandated by paragraph 186(4) of the Act to be satisfied that the Agreement did not contain any unlawful terms.

[9] At the stay hearing, the Appellant acknowledged that the second ground of appeal, if upheld, would not entail a quashing of the Agreement.

The Appellant’s arguments in support of release

[10] With regard to the Form F16 and F17, the Appellant’s argument is set out in the following terms in its email correspondence to the Commission on 9 December 2016:

“We have not made the refusal by Commissioner Riordan to provide United Voice with the F16 and F17 part of our appeal …

The request for the F16 and F17 in our correspondence of 7 December 2016 is not a continuation of what the Respondent has pejoratively called a ‘fishing expedition’. It is for the legitimate forensic purpose of ensuring that the appeal book contains the evidence that supports the decision under appeal.”

[11] As to its request for the provision of the abovementioned documents, the Appellant in its submissions of 22 September 2016 in the proceedings before the Commissioner contended that the Agreement on its face raised issues of a similar nature to those identified by the Full Bench in Re KCL Industries Pty Ltd 4 (KCL). Among other things, the Appellant contended before the Commissioner that if the three employees who approved the Agreement were employed on rates and conditions superior to those mandated by the Agreement there was a genuine question as to whether the Agreement had been genuinely agreed as per s.186(2)(a) of the Act.

[12] The Appellant’s email of 14 December 2016 in which it again sought access to the requested documents stated among other things that:

“We have not been able to particularise whether the 4 employees are paid in a manner that would raise concern that the making of the agreement offends the principle expressed in KCL Industries because our request for information about this matter was refused hence the manner in which the First Ground of appeal is framed. We only have the statement in the first decision of Commissioner Riordan that the employees on common law contracts underpinned by the Corrections Award.”

The Respondent’s views

[13] The Respondent opposes the release of the Form F16 and F17, submitting that:

“As a threshold matter, United Voice either has an evidentiary basis for an appeal or it does not. Access to the F16 and F17 makes no difference to that – other than to show it to be the fishing expedition that it is.” 5

[14] The Respondent also noted in its submissions that the Appellant had not challenged the Commissioner’s decision to refuse it access to the documents and characterised the Appellant’s subsequent request for the documents as an attempt to circumvent the Commissioner’s decision in this regard. In support of its submissions, the Respondent relied on the Full Bench decisions in Mark Kirkman v DP World Melbourne Limited 6 (Kirkman); Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd and Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd7.

[15] In an email of 15 December 2016 the Respondent reiterated its opposition to the release of the Form F16 and F17 and also stated that it opposed the release of the further documents subsequently requested by the Appellant.

Consideration of the issues

[16] Having examined the Form F16 and F17 with particular regard to the Appellant’s grounds of appeal, I consider that neither document contains any evidentiary material which will assist the Commission in determining whether or not the Appellant’s first ground of appeal is sustained.

[17] Further, I note that the Appellant has not chosen to appeal the Commissioner’s decision to deny the Appellant access to the documents. I also note, as stated in the Commissioner’s decision of 15 November 2015, that the Appellant had not been appointed as a bargaining representative by any of the employees, nor was it a default bargaining representative in accordance with s.176 of the Act for the purposes of bargaining for the Agreement.

[18] For all these reasons, I decline the Appellant’s request to release the Form F16 and F17.

[19] As to the Appellant’s request for the release of the other documents referred to in its email of 14 December 2016, I note the following observation by the Full Bench in Kirkman:

“[19] In relation to Mr Kirkman’s second argument, it is apparent to us that he seeks access to the Complaints Documents not for the purpose of obtaining documents to support a case of differential treatment which he otherwise intends to advance, but rather to explore if there is any basis upon which he could advance a case of differential treatment of which he is currently unaware. That makes it an impermissible “fishing expedition”.” 8

[20] The Appellant’s statement in its email of 14 December 2016 that “We have not been able to particularise whether the 4 employees are paid in a manner that would raise concern that the making of the agreement offends the principle expressed in KCL Industries because our request for information about this matter was refused” suggests that the request for the documents is a “fishing expedition”. More particularly, the statement indicates that the documents sought are, paraphrasing the Full Bench’s observation in Kirkman, not for the purpose of advancing a case that the employees are paid in a manner which is inconsistent with the principle expressed in KCL but rather to establish whether or not the contention has any substance. That view is reinforced by the Appellant’s contention before the Commissioner that if (emphasis added) the three employees who approved the Agreement were employed on rates and conditions superior to those mandated by the Agreement there was a genuine question as to whether the Agreement had been genuinely agreed.

[21] Against that background, I decline to order the release of the documents requested by the Appellant on the basis that the request is an impermissible “fishing expedition”.

Conclusion

[22] For all the above reasons, I decline the request to release the Form F16 and F17 and the other documents sought by the Appellant.

Appearances:

S. Bull forthe Appellant

C. Dixon for the Respondent.

Hearing details:

2016

Canberra, Melbourne and Sydney:

December 13.

 1   [2016] FWC 7936 and [2016] FWCA 8209 respectively

 2   AE422190

 3   [2016] FWC 7936

 4 (2016) 257 IR 266

 5   Respondent’s Outline of Submissions in relation to the application for a stay and other procedural matters at paragraph 37

 6   [2015] FWCFB 3995

 7   [2016] FWCFB 2654

 8   [2015 FWCFB 3995

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