| [2018] FWC 2739[Note: An appeal pursuant to s.604 (C2018/2924) was lodged against this decision - refer to Full Bench decision dated 6 July 2018 [[2018] FWCFB 3803] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
G8 Education Limited
(C2018/673)
COMMISSIONER BOOTH |
BRISBANE, 15 MAY 2018 |
Application to vary redundancy pay for other employment or incapacity to pay – application for order to produce – copy of un-redacted Application.
[1] United Voice is seeking an order to produce an un-redacted copy of an Application made by G8 Education Limited (G8) (and other documents or information) under s.120 of the Fair Work Act 2009 (the Act). G8 resists the application.
[2] In 2016 G8 sold 16 of its childcare centres to Paisley Park Early Learning Centres. G8 seeks to vary any redundancy pay owing to employees on the basis that it obtained other acceptable employment for the employees at Paisley Park Early Learning Centres. United Voice opposes the Application on the basis that the employer did not obtain acceptable employment for its former employees.
Background to United Voice’s order to produce application
[3] G8’s Application to vary redundancy pay was accompanied by a spreadsheet containing the names and details of the 186 employees in question.
[4] G8 provided United Voice, whose rules provide coverage of employees working in childcare and early childhood education and have indicated they have approximately 20 members affected by the Application, with a redacted copy of the Application. The redacted copy excluded the personal details of the respondent employees.
[5] At a conference held on 1 March 2018, United Voice informally sought from the employer an un-redacted copy of the Application. The employer resisted the application.
[6] Subsequently United Voice filed an application for an Order Requiring Production of Documents to the Commission. Following a further conference the parties have provided submissions about the Order to Produce. This decision deals only with this issue.
Status of United Voice
[7] The Commission may inform itself in such a way as it considers appropriate. The Commission’s broad discretionary powers can include inviting submissions and participation in a proceeding. In this case, United Voice is not a party in this matter yet it submits it is an appropriate effective respondent.
[8] In its submissions, United Voice indicates it represents a number of employees who are respondents to the Application and notes its willingness to represent the affected group generally.
[9] G8 submits that while the Fair Work Commission may exercise its discretion and grant permission to United Voice to be heard and participate, its role and participation should be limited to those members it is able to identify a being affected by the Application.
[10] As the Full Bench observed in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd, 1 the Commission may choose in a particular case to hear from an employee organisation that might not otherwise have a right to be heard. This is on the basis that the Commission has a broad power to inform itself in relation to any matter and in such a manner it considers appropriate.2
[11] I consider it is appropriate to grant United Voice permission to be heard and participate in these proceedings. This is because United Voice has a proper role and expertise in representing its members in this matter. United Voice submits that it represents a number of employees who are the subject of the Application. Such representation does not require identification of its members for the purposes of being heard and participating in these proceedings. 3
Copy of un-redacted application and notice to produce
[12] This Schedule sets out the nature of the documents sought in the order to produce application. It is reproduced verbatim below.
Para. |
The Application |
N/A |
● An unredacted copy of the attached spread sheet referred to at 1.1, 1.2 and 1.3 of the Application and attached to the Application. |
Para. |
The Submission |
10 |
● A list of the 186 employees who received an offer of employment from Paisley Park detailing the name of the employee, the commencement date of the employee’s employment with the Applicant, the date of termination, the employee’s award classification, and a summary of employment obtained by the Applicant for the employee with Paisley Park.
|
18 |
● The final form of the agreement referred to as ‘the Agreement’. |
21 |
● Copies of the correspondence to each of the Employees from the Applicant noting the terms of the sale to Paisley Park. |
[13] United Voice has submitted that it should be provided access to the entire unredacted document.
[14] United Voice notes it was provided with the redacted copy with the name, address, email and mobile phone number of the each employee blacked out. It suggests the starting point in these proceedings should be openness and transparency.
[15] Further United Voice notes the Applicant did not seek any order from the Commission to redact the spreadsheet.
[16] G8 submits that:
“Having regard to the status of United Voice in relation to this Application, and in order to protect the privacy and confidentiality of the Applicant’s former employees that are the subject of this Application, the Applicant respectfully submits that no information or documents should be produced, or otherwise provided, to United Voice by the Applicant or the Commission until United Voice has provided evidence to demonstrate that it represents the interests of those individuals as current members of United Voice.”
[17] In support of its openness and transparency argument, United Voice submits:
“20. There was recently a division of opinion amongst different members of the Commission concerning the appropriateness of providing organisations that are not bargaining representatives with copies of the forms F16 and F17 that are lodged in support of the approval of an enterprise agreement. In Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd, a Full Bench of the Commission resolved this issue with a clear statement of the desirability of ‘open justice’ in the Commission’s conduct of matters before it and that such documents ‘should be freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality’. The Full Bench in Ron Southon noted at [26] to [27]:
Partly in the interests of efficiency and partly to reduce the administrative burden on the parties, an increasing amount of the work of the Commission is undertaken ‘in Chambers’ rather than in open court, and decisions are often made ‘on the papers’. This development should not have the unintended result that the activities of the Commission become shielded from the public gaze. …. The Commission and its predecessors have had a longstanding practice that in the absence of special circumstances or an order to the contrary, Commission files are open to the public.”
[18] G8 alleges that information in the spread sheet comprises “sensitive personal information”. The personal information is the identifying information of individuals including names, contact details and employment information.
[19] United Voice submits that employee details are part of the Application and it seeks access to this material to be in a position to function as the contradictor to ensure that the redundancy rights of the entire class of persons are dealt with appropriately. It objects to the suggestion that disclosure of information to officers of the union would be a breach of privacy in any sense.
[20] G8 submits it is prepared to provide this information to the Commission in confidence, provided it not be disclosed to United Voice or any other respondent, other than the individuals concerned.
[21] Further, G8 submits disclosure of personal information of this nature to United Voice would be a breach of privacy. G8 argues it is not necessary for United Voice to receive private information of individuals where it does not hold instructions to represent them in these proceedings. G8 has significant concerns releasing sensitive information of this nature to United Voice where there is no apparent basis for doing so.
[22] The principle of open justice urged by United Voice, and the Full Bench in Southon, does not preclude consideration of the significant privacy concerns: Southon applies, but it is not to be applied, as noted in Bowker v DP World, 4 in a limited and narrow nature so as to preclude proper consideration of whether the material is confidential.
[23] I am not satisfied that either the disclosure of personal information of the 186 employees would not be a breach of privacy, nor that withholding this information would breach the principle of open justice. 5 In these particular circumstances, it is appropriate that the Application be made available with the personal information redacted.
[24] United Voice should be aware who their members are and their contact details. It is not the responsibility of either this Commission or G8 to provide those details.
Conclusion
[25] The information contained in the un-redacted spreadsheet contains private information, and should not be provided to United Voice.
Termination letters and statements of termination payments
[26] United Voice seeks copies of these documents and G8 resists their production but is prepared to provide them to the Commission.
Conclusion
[27] Termination letters and statement of termination payments should be provided to the Commission.
[28] After viewing the letters and statements I do not rule out the possibility of providing United Voice with de-identified copies of these documents.
A final form of the Agreement
[29] United Voice gave a solicitor’s undertaking about confidentiality of the Agreement transferring the business to Paisley Park.
[30] G8 is prepared to produce what it says is the relevant clause (clause 11) but is prepared to give a full copy to the Commission if so directed. It seems inherent in this matter that the full Agreement should be before the Commission to satisfy itself as to the terms of transfer, and as to whether a particular clause is the only one relevant.
Conclusion
[31] The entire Agreement must be provided to the Commission.
[32] After viewing the Agreement I do not rule out the possibility of providing United Voice with a copy of the Agreement or part of the Agreement including clause 11. Any decision to provide the Agreement will take into consideration privacy and commercial in confidence matters.
Names of 3 employees who rejected employment with Paisley Park
[33] These employees are not the subject of this Application and are not relevant to the Application.
Copies of correspondence to each employee
[34] It is clear from United Voice’s reply submissions that they have a copy of at least one letter provided to an employee.
[35] The Commission has a copy of all correspondence forwarded to employees, and the letters are in identical terms. No further copies will be provided.
The service of the Application on affected ex-employees
[36] Prior to a conference being held on 1 March 2018, G8 provided a letter advising each of the employees that the Application had been filed. No copy of the Application was provided to the employees. United Voice has properly raised this matter.
[37] I direct that a copy of the originating Application be served on all employees the subject of this application. Each individual respondent should be provided with the Application but not the spreadsheet containing other respondents’ details.
Proposal by United Voice for summaries of affected employees and their employment history
[38] United Voice notes that the Commission has a broad discretion about how it informs itself about a matter. United Voice suggests the summary of affected employees, their employment with the Applicant and other employment obtained may assist the Commission. Such a summary may well provide assistance to the Commission but it is premature to require G8 to create such a document.
[39] In the substantive proceedings the parties have agreed that there will be a threshold consideration on the question of whether G8 “obtained employment” for the purposes of s.120 of the Act. Subject to a decision on this point it may well be that the Commission will then consider whether the Applicant should create a summary as proposed by United Voice.
[40] The matter will now be listed for further directions of the Application.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR607124>
2 Ibid at [75].
3 Regional Express Holdings v Australian Federation of Air Pilots [2017] HCA 55 at [45 -46] is authority for the proposition that subject to its rules an employee organisation is entitled to represent the interests of those employees eligible for membership.
4 [2015] FWC 4542 at [15].
5 Ibid at [18].