Application/Notification by Barton [2016] FWC 899 (17 February 2016) [2016] FWC 899 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.483AA - Application for an order to access non-member records Mr Robert Barton v Teys Australia Beenleigh Pty Ltd (RE2016/204) Meat Industry DEPUTY PRESIDENT ASBURY BRISBANE, 17 FEBRUARY 2016 Application for an order to access non-member records - suspected contravention - ongoing litigation between parties. 1. Background [1] Mr Robert Barton applies to the Fair Work Commission (the Commission) for an order allowing that he, as a permit holder, require Teys Australia Beenleigh Pty Ltd (Teys) to produce, or provide access to, non-member records or documents (or parts of such records or documents) under subsection 483(1). The application is made pursuant to s.483AA of the Fair Work Act 2009 (the Act). [2] Mr Barton is an employee of the Australasian Meat Industry Employees Union (the AMIEU) and holds an entry permit issued by the Commission. [3] The AMIEU and Teys have been in dispute for a number of years. The dispute has had a number of iterations before the Commission as presently constituted, Full Benches of the Commission, the Federal Court of Australia and the Full Court of the Federal Court of Australia. [4] Relevantly to the context and background of this application, on 27 August 2015, the AMIEU filed an application in the Commission (the Remuneration Dispute) seeking that the Commission deal with a dispute under the dispute resolution procedure in the Teys Bros (Beenleigh) Pty Ltd/AMIEU Production Departments Enterprise Agreement 2010 (the Agreement). The substance of the alleged dispute, in summary, is that the AMIEU alleges that Teys were not, or are not, complying with the terms of the Agreement in remunerating employees in accordance with a document called the “remuneration document”. The AMIEU alleged that the “remuneration document” is a term of the Agreement and that Teys are bound to apply it. Teys disputed this. [5] The Remuneration Dispute was listed for Conference before me on 7 September 2015. At that Conference, the representative of Teys foreshadowed that Teys intended to file an application in the Federal Court seeking declarations that the “remuneration document” did not form a part of the Agreement. As a result Teys sought that the Remuneration Dispute be stayed pending the outcome of those prospective Federal Court proceedings. [6] Following an interlocutory decision of the Federal Court, 1 in which the Federal Court dismissed an application by Teys for an injunction preventing the Commission from dealing with the Remuneration Dispute, I issued a Decision staying the Remuneration Dispute until such time as the Federal Court had determined Teys’ application in respect of the “remuneration document”. 2 [7] Teys’ application in the Federal Court resulted in a Decision, finding that the “remuneration document” is a valid term of the Agreement. 3 Teys have appealed that Decision to the Full Court of the Federal Court. [8] The AMIEU says that as a result of the Decision of the Federal Court referred to above, Teys has potentially been underpaying employees by failing to apply the terms of the “remuneration document”. Following the Federal Court’s Decision, the AMIEU sought that the Commission relist the Remuneration Dispute for Conference. Teys advised the Commission that while it was willing to attend and participate in the Conference, it would be appealing the Decision of the Federal Court. Teys also advised that it had briefed an external party to undertake an audit of employee payments and that that audit was not complete. [9] The matter came before me on 2 February 2016 for Conference. Lengthy and productive discussions occurred between the parties. The parties came to an agreed position on a way to progress the resolution of the Remuneration Dispute. Part of that agreed position was the production of documents from Teys to the AMIEU that would enable the AMIEU to consider what it says is a suspected contravention of the Agreement, including the “remuneration document”. Teys identified that some of the documents sought would potentially contain information of employees who were not members of the AMIEU. The AMIEU foreshadowed that it would consider filing an application in the Commission seeking permission to access those documents as non-member records. This application is the result of that position. [10] Applications of this nature are ordinarily dealt with on an ex parte basis, subject to a direction of the Commission. The application filed by the AMIEU advised that the AMIEU did not object to the application being brought to the attention of Teys, should the Commission consider it appropriate to do so. Given the history of this matter, and the circumstances leading to the application, I considered it appropriate to deal with the matter other than on an ex parte basis and caused the application to be provided to Teys by my Associate. Teys’ views in respect of the application were sought. [11] Teys have advised that it does not object to the application. 2. Relevant legislation [12] By operation of s.482 of the Act, a permit holder, while validly on premises, may require the occupier of those premises or an affected employer to allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention. 4 The section however does not allow a permit holder to inspect or make copies of records or documents that are a non-member record. [13] Non-member records or documents are defined by s.482(2A) as: “ Meaning of non-member record or document (2A) A non-member record or document is a record or document that: (a) relates to the employment of a person who is not a member of the permit holder’s organisation; and (b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation; but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.” [14] Mr Barton now applies pursuant to s.483AA of the Act for an order permitting him to inspect and copy non-member records or documents. Section 483AA of the Act provides: “483AA Application to the FWC for access to non-member records (1) The permit holder may apply to the FWC for an order allowing the permit holder to do either or both of the following: (a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non-member records or documents (or parts of such records or documents) under paragraph 482(1)(c); (b) require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under subsection 483(1). (2) The FWC may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, the FWC must have regard to any conditions imposed on the permit holder’s entry permit. (3) If the FWC makes the order, this Subdivision has effect accordingly. (4) An application for an order under this section: (a) must be in accordance with the regulations; and (b) must set out the reason for the application.” 3. Submissions in support of the application [15] As mentioned above, there has been lengthy litigation between the AMIEU and Teys. The primary genesis of that litigation has been enterprise bargaining between Teys and its workforce (for some of whom the AMIEU is bargaining representative) and approval of a replacement enterprise agreement. A brief summary of the result of the litigation, which has resulted in a number of decisions this Commission and the Federal Court, is that a replacement agreement to the Agreement has never validly commenced operation such that the Agreement has at all times been in operation and applied to the parties. [16] As a result of those decisions, the AMIEU submits that it formed a reasonable suspicion that there had been a contravention of the Agreement. That contravention is, at least in part, an alleged failure to apply to terms of the “remuneration document” that sets out incentive based payments payable to employees. Since at least October 2013, Teys has not been applying the terms of the Agreement and the “remuneration document” and, at least until such time as the matter is dealt with by a higher Court, the Federal Court has determined that the “remuneration document” is validly incorporated into the Agreement and, combined with the Full Court’s decision that the Agreement has never ceased to operate, Teys may be in breach of the Agreement in not applying the terms of the “remuneration document”. [17] On 12 August 2015, Mr Barton and Mr Robert Weston (also a permit holder) validly exercised rights of entry to Teys’ premises to investigate that suspected contravention. On this date, Mr Barton and Mr Weston were advised by Teys that “time and wages” records were not maintained at the premises entered but at the corporate premises of Teys. [18] On 17 August 2015, Mr Barton issued a further entry notice to Teys requiring that Teys produce time and wages records in respect of four employees of Teys, who were also members of the AMIEU. The records sought are said to be necessary to enable payments payable under the “remuneration document” to be calculated. Correspondence was entered into between the AMIEU and Teys in respect of the entry notice requiring production of documents. Some documents were agreed to be produced but, so the AMIEU submits, Teys refused production of others, essentially on the basis that the “remuneration document” did not form a part of the Agreement and could therefore not form the basis of a suspected contravention. [19] Following discussions before the Commission on 2 February 2016, Teys indicated that it was prepared to allow inspection of time and wages records but expressed reservation that some of the time and wages records did not relate solely to the four employees and AMIEU members identified by the AMIEU in its entry notice. Teys expressed its view that production of the documents that included information of employees that may not be members of the AMIEU might be a breach of Teys’ obligations to protect the privacy of its employees. [20] The AMIEU and Teys agreed that the AMIEU would seek an order from the Commission, allowing the AMIEU to inspect or copy the identified records or documents that may be non-member records or documents. 4. Consideration [21] The application has been made pursuant to s.483AA. Section 483AA requires that the Commission may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. It is necessary that the AMIEU establish that the order is necessary to investigate the suspected contravention. It would ordinarily be the case that to establish that the order it is necessary that consideration of the records or documents sought to be the subject of the order will be appropriate and to make a determination as to whether the documents are necessary to investigate the suspected contravention. If that matter is established to the satisfaction of the Commission, there remains discretion in the Commission to issue the order or not. [22] In considering the application, the Commission must have regard to any conditions imposed on the permit holder’s entry permit. There are no conditions imposed upon Mr Barton’s entry permit. [23] I have considered Mr Barton’s application and the grounds expressed for making the application. I consider it is appropriate that I issue an order, allowing access to the non-member records. In particular I am satisfied that the order is necessary to investigate a suspected breach of the Agreement and the, for now, incorporated “remuneration document”. I have taken into account the extensive history of disputation between the AMIEU and Teys, the productive approach taken by the AMIEU and Teys in respect of the Remuneration Dispute and, in particular, the outcome of the Conference before me of 2 February 2016. [24] In particular I have taken into account that the “remuneration document” provides for an incentive payment system that is based on work performed by employees collectively rather than individually. In order to calculate remuneration to which employees may be entitled under the “remuneration document” it is necessary that the relevant officials consider records or documents that relate to both members and non-members who are part of the group for which wages are calculated under the “remuneration document”. Teys has not objected to the relevant officials accessing the documents on the basis that they are non-member records or that they include information relating to non-members. 5. Conclusion [25] Prior to considering the application I sought that the AMIEU file a draft order and, in particular, seek an agreed position with Teys as to the description of the non-member records to which the Order was sought. A draft order was filed. The Order I consider it is appropriate to issue will issue concurrently with this Decision. DEPUTY PRESIDENT 1 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033. 2 The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd [2015] FWC 6489 . 3 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2. 4 See Fair Work Act 2009 (Cth) s.482(1)(c). Printed by authority of the Commonwealth Government Printer <Price code C, PR576929>