1
Fair Work Act 2009
s.483AA—Right of entry
Transport Workers’ Union of Australia
(RE2016/1461; RE2016/1462; RE2016/1463; RE2016/1464; RE2016/1465; RE2016/1466;
RE2016/1467; RE2016/1468; RE2016/1470; RE2016/1472; RE2016/1473; RE2016/1474;
RE2016/1475; RE2016/1476; RE2016/1477; RE2016/1479; RE2016/1480; RE2016/1481;
RE2016/1482; RE2016/1483; RE2016/1484; RE2016/1485; RE2016/1486)
COMMISSIONER GREGORY MELBOURNE, 15 NOVEMBER 2016
Application for an order to access non-member records.
Introduction
[1] Mr Luke McCrone has made an application to the Fair Work Commission (“the
Commission”) for an order allowing him to access non-member records. The application is
made under s.483AA of the Fair Work Act 2009 (Cth) (“the Act”). Mr McCrone is an
employee of the Transport Workers’ Union of Australia, Victorian/Tasmanian branch
(“the TWU”), and holds an entry permit issued by the Commission (RE 2016/211).
[2] The relevant Fair Work Commission Rules 2013 do not contain any requirement for
the Form F43 – “Application for an order for access non – member records” to be served on
the party against whom the order is sought, and the application was dealt with on an ex parte
basis on 15 November 2016. A total of 23 individual applications were lodged. The TWU did
not object to the Commission hearing the matters concurrently.
[3] Mr McCrone indicated in his submissions that the orders sought are in regard to
persons who are engaged to perform work in conjunction with arrangements entered into with
Linfox Australia Ltd, and its contract with the Coles’ Distribution Centres at 485 Dohertys
Road, Truganina and 50 – 100 Union Road, Somerton.
[4] Mr McCrone submits that his discussions with and subsequent investigations about a
number of individuals, who are performing driving duties in association with these
arrangements, indicate they are not being paid the rates and other entitlements that would
apply under the terms of the Road Transport and Distribution Award 20101 (the Award) for
employees performing work of this kind. He also indicated that this does not concern drivers
who are directly employed by Linfox. He also submitted that various audits required to be
carried out in respect of these drivers has revealed information that appeared to be “at odds”
with the information provided to him by the individual drivers about their employment
conditions and arrangements. As a consequence he seeks to be able to inspect the relevant
payslips and timesheets for the period from 1 July 2016 to 30 September 2016 in order to
further investigate these issues.
[2016] FWC 8197
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 8197
2
[5] Mr McCrone also indicated that that there are no conditions imposed on his Entry
Permit.
[6] Section 483AA requires that the Commission may make an order sought “if it is
satisfied that the order is necessary to investigate the suspected contravention”.2 I am satisfied
that the orders being sought are necessary to investigate the suspected contraventions and
whether the individuals are employees who are entitled to be paid in accordance with the
relevant Award. However, in coming to this decision, I am obviously not expressing a
concluded view about whether any such contravention exists. The orders sought will be issued
in conjunction with this decision.
COMMISSIONER
Appearances:
L McCrone for the Transport Workers’ Union of Australia
Printed by authority of the Commonwealth Government Printer
Price code A, PR587552
1 MA000038.
2 Fair Work Act 2009 (Cth).
THE FAIR WORK COMMISSION SEAL THE
