1
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.
[2016] FWC 899
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 899
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[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.
[2016] FWC 899
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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:
[2016] FWC 899
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(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.
[2016] FWC 899
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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.
[2016] FWC 899
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR576929
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).
ORK COMMISSION AUSTRALIA THE SEAS OF FAIR
