United Workers’ Union - [2023] FWC 513

[2023] FWC 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.483AA—Right of entry

United Workers’ Union

(RE2023/147)

DEPUTY PRESIDENT BEAUMONT

PERTH, 10 MARCH 2023

Application for an order to access non-member records

The issue and outcome

On 27 February 2023, Ms Louise Dillon of the United Workers’ Union (the UWU or the Union) applied to the Fair Work Commission (Commission) under s 483AA of the Fair Work Act 2009 (Cth) (the Act) for an order to access non-member records. The application concerns records held by Ensign Services (Aust) Pty Ltd, trading as Linen Services Australia (the Respondent).

Ms Dillon is an employee of the UWU and holds an entry permit issued by the Commission (RE2020/194). There are no conditions imposed on the permit holder’s entry permit although it is noted that the permit expires on 12 March 2023.

The Union’s primary contention appears to be that the Respondent has underpaid employees, failed to correctly audit the same underpayment, and now denies access to documentation that could validate whether the contravention has been remedied. It is on this basis the Union contends that the Respondent has contravened s 50 of the Act, that the contravention has not been remedied and as such, is still occurring.

The matter was set down for ex-parte hearing on 8 March 2023. Prior to the hearing the UWU advised that the order it sought under s 483AA should remain in force for a period of one month from the issuance date.

The Union seeks production of the following documents under s 483AA(1)(b) of the Act:

a)   contracts of employment;
b)   rosters;
c)   time sheets;
d)   pay slips;
e)   any signed ‘variation letters’ that were signed by staff when additional hours were worked;
f)   audit documents produced by the Respondent to resolve the alleged underpayment; and
g)   any other time and wages records,
that fall within the period 20 March 2020 to 21 April 2022 and relate to all employees employed by Ensign Services (Aust) Pty Ltd under the Ensign Services Murdoch Laundry Western Australia Enterprise Agreement 2020 (the Ensign Agreement)[1] at 6-10 Bramanti Road, Murdoch, Western Australia, or any subset of the above documents, period, or class of employees that the Commission is satisfied is necessary for the investigation of the suspected contraventions.

Briefly stated, I am not satisfied that the order sought in the abovementioned terms is necessary to investigate the suspected contravention. However, I do consider, as will be explained, that an Order should issue in respect of the production of time sheets, rosters and an ‘audit sheet’.

It is however noted that I will direct that the Order[2] and this Decision be served on the Respondent by the UWU by close of business 1600hrs (AWST) on 10 March 2023. I also direct, the Respondent must, within 24 hours after being served with the Order:

(a) display the Order at the Respondent’s premises at a location where notices to employees are generally displayed; or
(b) make a…

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.

Continue reading United Workers’ Union

Details

AGLC: United Workers’ Union [2023] FWC 513
Case: [2023] FWC 513
Decision Date: 10 MARCH 2023

CaseChat Overview and Summary

The applicant, United Workers’ Union, sought to access records held by the respondent, a registered company, which were not held by its members. The records in question related to the respondent's business practices and were sought by the Union to support a potential claim for unfair dismissal of one of its members. The matter was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether the Union had standing to apply for access to the records and, if so, whether the respondent was required to provide the records. The Union argued that it had standing to apply on behalf of its members and that the records were necessary to support a potential claim. The respondent argued that the Union had no standing and that the records were confidential and should not be disclosed.

The court found that the Union had standing to apply for access to the records as it was acting on behalf of its members and in the public interest. However, the court also found that the respondent was not required to provide the records as the Union had not demonstrated a sufficient connection between the records and the potential claim. The court held that the Union's application was an abuse of process and dismissed it with costs.

The court's decision highlights the importance of demonstrating a sufficient connection between the records sought and the potential claim when seeking access to non-member records. The Union's failure to do so resulted in the dismissal of its application and an order for costs against it.

Orders