[2025] FWCFB 144

Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 2611 of Commissioner Johns at Melbourne on 28 October 2024 in matter number U2024/3475.

[1] Oceaneering Australia Pty Ltd (Oceaneering Australia) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required against a decision[1] (the Decision) of (former) Commissioner Johns issued on 28 October 2024. The Decision dealt with an application made by Mr Travis Cairns against Oceaneering Australia pursuant to s.394 of the FW Act for an unfair dismissal remedy.

[2] The appeal was lodged outside of the 21-day time limit required by Rule 128 of the Fair Work Commission Rules 2024 (Rules).

[3] The parties consented to the application being determined on the papers without holding a hearing pursuant to s.607(1)(b) of the FW Act. We were satisfied, having regard to s.607(1)(a), that the appeal could be adequately determined without the need for oral submissions.

[4] Rule 128(2) provides that in relation to an appeal under s.604 of the FW Act, the notice of appeal must be lodged:

"(a) within 21 days after the date of the decision being appealed against; or

(b) if the decision was issued in the form of an order - within 21 days after the date of the order; or

(c) within such further time allowed by the FWC on application by the appellant."

[5] The Full Bench decision in Jobs Australia v Mrs Donna Eland[2] identified the following matters as relevant to the exercise of the Commission's discretion to allow further time for a notice of appeal to be lodged:

• whether there is a satisfactory reason for the delay;

• the length of the delay;

• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

• any prejudice to the respondent if time were extended.[3]

[6] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour the grant of an extension of the time within which to lodge the appeal.[4]

[7] The appeal was lodged two days late and there is no suggestion by Mr Cairns that he will be prejudiced by the delay if the time is extended. As to whether there is a satisfactory reason for the delay, the decision was issued on 28 October 2024 but no action was taken by Oceaneering Australia to lodge an appeal until Ms Tracey Ram commenced employment as the Senior Human Resource Business Partner 14 days later on 11 November 2024. Ms Ram was not informed of the Decision until 14 November 2024. By this time, there were only four days (including two working days) available for Oceaneering Australia to lodge an appeal within the timeframe permitted by Rule 128. Ms Ram submitted that 'as a matter of principle, she felt compelled to appeal,' she was the only individual within Oceaneering Australia capable of drafting the appeal and that budget constraints prohibited the engagement of an industrial relations consultant.

[8] Ms Ram also submitted that upon commencing work on 11 November 2024, she contracted the Respiratory Syncytial Virus (RSV) and began exhibiting symptoms of a potential deep vein thrombosis. These illnesses, compounded by underlying health conditions that remain under treatment, severely impacted her health and ability to work effectively. Despite these challenges, Ms Ram attended work during her first week to meet critical obligations and avoid disappointing her new employer.

[9] Ms Ram said she attended work despite not feeling well and was further hindered in submitting the appeal due to other responsibilities, including initiating access periods for two enterprise agreements, and the management of three disciplinary employment matters. Additionally, Ms Ram faced considerable difficulties navigating Oceaneering Australia's computer systems and locating the necessary materials, particularly the files relating to the Decision. These technology-related challenges further delayed her ability to progress the appeal. In submissions in reply, Oceaneering Australia submitted that Ms Ram was not alert to the filing deadline and that she made an error regarding the exact date that the appeal was required to be filed and believed it was due on 20 November 2024. Oceaneering Australia submitted that this misunderstanding was clearly due to Ms Ram's ill health and other difficulties she was experiencing during her first week of employment.

[10] In our view, Ms Ram's illness might explain why Ms Ram personally was unable to lodge the appeal on time however we are concerned that Oceaneering Australia does not appear to have taken any steps to appeal the Decision in the first 17 days after the Decision was issued. Oceaneering Australia's explanation for the delay is not strong.

[11] In relation to the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time is extended, we have identified no appealable error by the Commissioner with respect to both of the grounds of appeal relied on by Oceaneering Australia.

[12] We have reluctantly decided to exercise our discretion and grant the extension of time sought by Oceaneering Australia.

[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal, and an appeal may only be made with the permission of the Commission.

[14] This appeal is one to which s.400 of the Act applies. Section 400 provides:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

• (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[15] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one'.[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[8]

[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[9] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[10]

[17] Mr Cairns was employed by Oceaneering Australia as an Advanced Non-Destructive Testing (NDT) Technician from 2 October 2017 until his dismissal on 5 March 2024. Mr Cairns was a fly-in/fly-out (FIFO) worker.[11]

[18] Mr Cairns' role involved conducting NDT services to assess the structural integrity of industrial equipment, particularly in offshore environments. These services were part of Oceaneering Australia's contract to provide NDT and inspection services in the Bass Strait.[12]

[19] The NDT workforce comprised of approximately 38 employees, split into two shifts. The two shifts did not overlap and employees only had irregular contact with the other shift. Mr Cairns worked one of these shifts.[13]

[20] Mr Cairns was also a delegate for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU). As an AMWU delegate, Mr Cairns played an active role in the collective bargaining process for the NDT workforce under the Oceaneering Australia Pty Ltd Offshore NDT & Inspection Agreement 2021. To facilitate communication during this process, Mr Cairns created a WhatsApp group chat in April 2023, inviting his colleagues to discuss bargaining claims and workplace issues. By May 2023, approximately 30 employees from both shifts had joined the group.[14]

[21] Mr Cairns also created a spreadsheet using OneDrive, which he shared in the WhatsApp group. This spreadsheet catalogued bargaining claims and suggestions and included a table with the headings 'Name', 'Membership' and 'Phone'.[15] On 5 October 2023, Mr Cairns shared a message in the WhatsApp group celebrating that Shift 2 had achieved 100% union membership. He accompanied this message with a screenshot of the spreadsheet, showing employees who were AMWU members, and wrote 'Shift 2 = 100% [stars with hearts for eyes emoji]'.[16]

[22] Around six weeks after the posting, two employees (the complainants) expressed concern about their union membership status and phone numbers being shared without their consent in the message. Following the complaints, Oceaneering Australia initiated a disciplinary process against Mr Cairns.[17]

[23] On 17 November 2023, Mr Cairns was stood down with full pay pending the outcome of an external investigation by the Australian Resources and Energy Employer Association (AREEA) which was focused on allegations of unauthorised sharing of personal information and potential targeting of non-union employees.[18] On 5 March 2024, following a disciplinary procedure, Oceaneering Australia terminated Mr Cairns' employment[19] for the following reasons:

1. On or around 5 October 2023, in a group chat forum of approximately 29 participants, Mr Cairns published the personal details of employees on Shift 1 and Shift 2 including phone numbers and whether or not those individuals were members of the union.

2. Mr Cairns' communication in this chat forum has had the effect of targeting and/or marginalising those on Shift 1 and Shift 2 who may not wish to join the union.

3. The result of Mr Cairns' communications and disclosure of personal information is that individuals who are not members of the union have been harassed and/or marginalised creating a health and safety risk.

d. Mr Cairns' communications are alleged to have infringed an employees' freedom of association right to not become members of an industrial association (i.e union).[20]

[24] The Commissioner noted that during the hearing, the fourth matter was abandoned as a basis for establishing a valid reason for the dismissal of Mr Cairns.[21]

[25] Oceaneering Australia claimed that the conduct which led to Mrs Cairns' dismissal was a breach of Mr Cairns' contractual obligations and demonstrated a clear failure to comply with the Oceaneering Code of Business Conduct & Ethics, policies and manuals including:

• Code of Business Conduct and Ethics

• Human Resources Policy Manual

• Fair Treatment at work policy[22]

[26] The Commissioner referred to the relevant provisions of these policies including clause 4.9.1 of the Human Resources Policy Manual, which outlines that private information about employees must be handled with care and should only be shared with proper authorisation. This policy states:

Note that one example of laws both Oceaneering and the employee are bound to comply with are those relating to Privacy, at both the State and Federal level. The Privacy Act protects the way an individual's personal information is handled and Oceaneering is compliant with current legislation.

In the conduct of an employee's work, you may come across private information relating to another employee, a client or to a potential employee. This may be during the recruitment process, the Professional Development and Review process, a disciplinary process or simply during the course of a confidential conversation as part of your job.

Any such personal information should be stored in a confidential and secure manner. This information should not be used for any purpose other than that for which it was intended. This information should not be discussed with anyone, or passed to any third party other than one who is clearly required to perform the task for which the information was gathered. No information should be shared or requested about a third party unless you have been authorised by the person concerned.

When this information is no longer required it should be destroyed. Oceaneering will take any breaches of the privacy laws by employees very seriously and may resort to disciplinary action or termination, as appropriate.

Employees should note that whilst people generally have a right to request access to their personal information that there are certain exceptions that relate to the employer and employee relationship and Oceaneering may choose to rely on such exceptions from time to time, as it deems necessary."[23]

[27] Mr Cairns gave evidence that the only information he had about his colleagues' Union membership status was what they had disclosed to him. He said he had no way of checking and the AMWU office never provided him a member list or the details of who members were. The only information published was information that the employees themselves had shared with the group. Mr Cairns denied that the spreadsheet was intended to pressure or marginalize non-union members, and he argued that his message, "Shift 2 = 100%," was a celebratory post intended to highlight the unionisation of his shift, not to shame or harass non-union employees.[24]

[28] Oceaneering Australia submitted that the spreadsheet and message in the WhatsApp group had the effect of harassing and marginalising non-union employees, particularly those on Shift 1, who felt pressured to join the union due to the comparison to Shift 2, which was 100% unionised.[25]

[29] Oceaneering Australia submitted that Mr Cairns had previously used the WhatsApp group to discuss union density and his message on 5 October 2023 was viewed as part of a broader pattern of union recruitment efforts that created division among employees.[26]

[30] The Decision recorded that the complainants gave evidence that they thought the blank space next to their name under the heading 'Membership' identified them as not being a member of the AMWU and that they felt marginalised and concerned about the potential harassment in the workplace due to the publication of their private information.[27]

[31] The Commissioner identified that the issues to be determined for the purpose of considering whether there was a valid reason for the dismissal were whether the act of posting by Mr Cairns:

1. resulted in him publishing 'personal details of employees on Shift 1 and Shift 2 including phone numbers and whether or not those individuals were union members.' (Allegation 1),
2. had 'the effect of targeting and/or marginalising those on Shift 1 and Shift 2 who may

1. resulted in 'individuals who are not members of the union [being] harassed and/or marginalised creating a health and safety risk.' (Allegation 3).

[32] In relation to Allegation 1, the Commissioner noted that the spreadsheet was largely self-populated by employees on each of Shift 1 and Shift 2, however some of the cells in the table were populated by Mr Cairns with the permission of the relevant employee.

[33] In respect of Shift 2, every cell was populated except one phone number was missing. The word 'Yes' was recorded against every name on Shift 2 under the heading 'Membership'.[28]

[34] In relation to the Shift 1 list, the Commissioner noted that 19 people were listed, that in respect of 9 of those people, there was a blank cell under the heading "Membership", and that in respect of those 8 people, there was a blank cell under the heading 'Phone'. The Commissioner recorded that there were six people who had a blank cell under both the membership and phone headings including the complainants.[29]

[35] The Commissioner found that the identity of each of the people on Shift 1 was not confidential nor personal information and that no breach of any policy arises out of the list of names.[30] The Commissioner noted that there were no complaints received in relation to employees' phone numbers being on the list and found that where there are blanks in the cells under 'Phone', the logical conclusion is that the person's phone number is unknown. As such, no breach of any policy arises out of the list of phone numbers.[31]

[36] The Commissioner noted that Mr Cairns had the phone number of one of the complainants, but did not add it to the spreadsheet because the complainant had not volunteered it to the group. Further Mr Cairns asked that complainant if he could join him to the group chat and the complainant said, 'No worries mate your call'[32]

[37] In relation to the 'Membership' column, the Commissioner noted that the entries could have been 'Yes', 'No', 'Unknown', or 'Not disclosed.' However, in the published spreadsheet, the word 'Yes' was recorded only where an employee's union membership was known.[33] The Commissioner concluded that where there is a blank cell under 'Membership', the person's union membership is unknown (just as their phone number is unknown where that cell is blank),[34] and that there is simply nothing in the table, read in context, to suggest that the necessary conclusion must be that the person is not a member of the union.[35] The Commissioner rejected the views of the complainants, that the spreadsheet revealed that they were not union members, and found that no breach of any policy arose from of the list of blank cells under the heading 'Membership'.[36] Accordingly, the Commissioner rejected the findings of Oceaneering Australia that Allegation 1 was substantiated.[37]

[38] In relation to Allegation 2, the Commissioner observed that the evidence of the complainants and a review of the entirety of the WhatsApp chat did not support an allegation that the 'effect' of Mr Cairns' publication of the spreadsheet was that any employee including the complainants would be targeted or marginalised.[38] The Commissioner observed that the complainants had subjective feelings and concerns about being targeted or marginalised however none of these came to fruition and their original letters of complaint made no such allegations.[39] The Commissioner rejected the suggestion that Mr Cairns' comments that high union density was a good thing to increase the employees' bargaining power targeted non-members or had the intention of marginalising them and found that there was nothing in Mr Cairns' conduct that was inconsistent with the proper actions of a union delegate.[40] Accordingly, the Commissioner rejected the finding of Oceaneering Australia that Allegation 2 was substantiated.[41]

[39] In relation to Allegation 3, the Commissioner noted that when AREEA produced its first report on 20 December 2023, this allegation was found to be 'not substantiated'. The Commissioner stated that this finding should have been maintained by Oceaneering Australia but it was not in the final report.[42] The Commissioner found that just as the publication of the spreadsheet did not have the effect of targeting any employee including the complainants, it did not have the result of causing harassment of any employee. Further, there was simply no evidence of any such result, that Mr Cairns harassed anyone, that any other employee harassed anyone or was harassed, or of any health or safety risk being experienced by any employee including the complainants.[43] Accordingly, the Commissioner rejected the findings of Oceaneering Australia that Allegation 3 was substantiated.[44]

[40] Commissioner Johns concluded by stating that as he had not found that any of Allegations 1, 2 or 3 were substantiated, it followed that there was no valid reason for the dismissal.[45] The Commissioner made findings in relation to the matters in ss.387(b)-(h), including that there was not proper notification of the reason for dismissal and that Mr Cairns was not provided with an opportunity to respond, which are not challenged on appeal. Having regard to these findings, the Commissioner concluded that the dismissal was unfair [46] and that a remedy of compensation in the amount of $83,750 is appropriate.[47]

[41] Having regard to the F7 Notice of Appeal and Oceaneering Australia's written submissions, we understand that Oceaneering Australia is relying on the following two grounds of appeal:

1. The Commission made an error of fact in excluding the text message header 'Shift 2 = 100%' from its analysis. This oversight ignored the clear connection between the message and the blank cells in the 'Membership' column, which could identify non-trade union members.

2. The Commission made an error of law in that it did not apply the privacy laws to the complaint by the complainants, which was the reason for termination of employment.

[42] In relation to Ground 1, Oceaneering Australia submitted that:

1. In light of the statutory requirement under s.230 of the Fair Work (Registered Organisations) Act 2009 ('FW (RO) Act') for trade unions to maintain a register of current members, it is implausible to suggest that Mr Cairns was unaware of the membership status of the complainants

2. This disclosure of the complaints' non-membership status was the primary reason for Mr Cairn's termination of employment. This situation is comparable to the facts in QF & Others v Spotless Group Limited (Privacy),[48] where unauthorised disclosure of 'sensitive information', membership of a trade union, was deemed a breach of privacy.

1. The text message header 'Shift 2=100%' was part of a broader effort by Mr Cairns to recruit non-members, highlighting membership gaps and establishing a clear connection to the blank cells in the 'Membership' column. The message header was critical to understanding both the data and the privacy breach.
2. The Commissioner's conclusion that the blank cells in the 'Membership' column represented 'unknown' membership status, rather than non-membership of a trade union, was a significant error of fact as the blank cells were intentionally left empty to indicate non-membership of a trade union
3. The Commissioner erred in failing to consider the broader context of Mr Cairns' WhatsApp message, which explicitly aimed for 100% membership of the AMWU.
4. The following text message is important contextual detail for interpreting the spreadsheet and the blank cells:

"If you have not yet joined up for the first time or you had previously been a member. Now is a good time!"

1. In the context of 'Shift 2 = 100%' membership, which lists all employees who are members, the blank cells in Shift 1's 'Membership' column strongly suggest non-members, and by extension, a privacy violation. The comparison between Shift 1 and Shift 2 supports this inference. While Shift 2 had 100% union members, Shift 1 had a mix of union members and non-members, with 47% identified as members. The blank cells in Shift 1 logically imply that those not marked as members were non-members.
2. Mr Cairns' WhatsApp message, referring to 'Shift 2 = 100%' and the goal of achieving similar union membership for Shift 1, further supports the inference that non-members were being actively targeted.

9. In the alternative, the omission of membership information in a spreadsheet can inadvertently disclose 'sensitive information', including membership of a trade union. In this case, the absence of 'Yes' in the "Membership" column for Shift 1, in contrast to Shift 2's full membership data, leads to a reasonable inference that the employees in Shift 1 were non-members. This indirect disclosure poses a privacy risk, exposing individuals to potential peer pressure or ostracism. This principle is supported by the case of Seven Network (Operations) Limited v Media Entertainment and Arts Alliance,[49] which recognised that privacy breaches can occur due to indirect disclosure.

1. The concerns expressed by the complainants about the potential social consequences of their non-membership in a trade union being disclosed by Mr Cairns without their consent was not appropriately addressed by the Commission.

[43] In relation to Ground 2, Oceaneering Australia submitted that:

1. The Commission made an error of law in that it did not apply the privacy laws to the complaint by the complainants, which was the reason for termination of employment;

2. Section 6(1) of the Privacy Act 1988 (Privacy Act) defines membership of a trade union as 'sensitive information', which is protected under Australian Privacy Principle (APP) 6. This principle prohibits the disclosure of 'sensitive information', such as trade union membership without an individual's consent, which Mr Cairns did not seek or obtain.

3. The findings in QF & Others v Spotless Group Limited are particularly relevant, as the disclosure of union-related data in that case was also determined to breach the Privacy Act. Furthermore, the Federal Court has reinforced in Seven Network (Operations) Limited v Media Entertainment and Arts Alliance[50]. that personal data, including union membership, is highly sensitive, and even indirect disclosure constitutes an infringement of privacy protections.

[44] In relation to public interest, Oceaneering Australia submitted that:

1. The appeal raises significant public interest issues, particularly concerning the protection of individuals' privacy rights in Australian workplaces.
2. The unauthorised disclosure of 'sensitive information', membership of a trade union has profound implications for employee rights, workplace culture, and the broader community.

1. The Decision has created an inconsistency with established principles of privacy law, for example, QF & Others v Spotless Group Limited[51]
2. The Decision manifests an injustice by not considering the privacy rights of the employees involved, particularly their right to control the disclosure of their non-membership of a trade union.
3. If the Decision is allowed to stand, it risks normalising improper handling of sensitive information by union delegates, which could erode public trust in workplace privacy protections.

[45] Oceaneering Australia made submissions in reply where it referred to the letter of termination issued to Mr Cairns in the context of the Commissioner's finding that it failed to provide Mr Cairns with a proper notification of the purported reason for dismissal or an opportunity to respond to it. As this finding was not challenged in the Notice of Appeal, it is not necessary for us to deal with this matter.

[46] Mr Cairns submitted that even Oceaneering Australia's witness, the decision maker, Ms Prewett, accepted in cross examination that the text message did not in fact identify persons as definite non-members.[52] Mr Cairns submitted that in these circumstances the impugned finding was at the very least reasonably open to the Commissioner.

[47] Mr Cairns submitted that in relation to the second ground of appeal, Oceaneering Australia made various submissions about 'privacy' below, it did not at any stage actually refer to the Privacy Act in its submissions. It is therefore unsurprising in that context that the Commissioner did not have regard to that particular piece of legislation in its consideration.

[48] Mr Cairns submitted that the Privacy Act did not apply to Mr Cairns as pursuant to s.7B(1), acts done by individuals 'other than in the course of a business carried on by the individual' are exempt. There is no suggestion Mr Cairns was carrying on a business by attempting to organise union membership on site. The Privacy Act does not impose any obligations on Mr Cairns or confer any relevant rights on the complainants in respect of the WhatsApp chat.

[49] Mr Cairns submitted that even if the Privacy Act applied in this matter, the relevant text message does not contravene APP 6 as it applies only where an APP Entity has collected sensitive information about an individual, however no information relating to union membership status had in fact been collected by Mr Cairns about the complainants. In any event the text message does not reveal that the complainants, or any of the other identified persons, are not union members. As high as it goes both on its face and in context, as the Commissioner correctly identified,[53] is that the membership status is 'unknown'.

[50] Mr Cairns submitted that the Decision involves a dismissal which the Commission considered was both procedurally and substantively unfair and resulted in an award of approximately 15.5 weeks' pay. It is within the range of acceptable outcomes in a highly discretionary matter and does not on its face manifest an injustice as alleged.

[51] It is not controversial that Mr Cairns sent the 'Shift 2 = 100%' message and the spreadsheet to the WhatsApp group. The Commissioner found that was no valid reason for dismissal because the sending of the message and the spreadsheet using WhatsApp:

• (a) did not result in the publishing of personal details of employees and whether or not those employees were union members as alleged by Oceaneering Australia; and
• (b) did not have the effect of targeting or marginalising those on Shift 1 and Shift 2 who may not wish to join the union as alleged by Oceaneering Australia; and
• (c) did not result in individuals who are not members of the union being harassed and/or marginalised creating a health and safety risk as alleged by Oceaneering Australia.

[52] Appeal Ground 1 appears to be concerned that the Commissioner did not properly take into account the 'Shift 2 = 100%' message when he made findings about the consequences of Mr Cairns' conduct.

[53] The submissions made by Oceaneering Australia in relation to Appeal Ground 1 raise matters that were never before the Commission and therefore do not disclose any arguable case of appealable error by the Commissioner. For example, in relation to the submission that because of the statutory requirement for trade unions to maintain a register of current members, it is implausible to suggest that Mr Cairns was unaware of the membership status of the complainants, this matter was never put to Mr Cairns in cross-examination and was not part of any of the allegations against Mr Cairns. Similarly, Oceaneering did not at any time allege that cells in the spreadsheet 'were intentionally left empty to indicate non-membership of a trade union' so there was no reason for the Commissioner to make any findings about this matter.

[54] The balance of Oceaneering Australia's submissions in relation to Appeal Ground 1 seek to impugn the Commissioner's finding that there was nothing in the spreadsheet, read in context, which necessitated a conclusion that the persons who had a blank cell next to their name were not members of the union.

[55] The message which Mr Cairns sent to members of the WhatsApp group stating 'Shift 2 = 100%' and accompanying spreadsheet was reproduced in full at [29] of the Decision. The Commissioner noted the policies which Oceaneering Australia claimed were breached as a result of the publication of the spreadsheet and message and extracted relevant provisions of these in the Decision.[54] The Commissioner identified that the issues that required determination for the purpose of establishing whether there was a valid reason for dismissal were whether the three allegations which led to the termination were made out. The Commissioner then went on to consider the meaning of the information in the spreadsheet. When describing the information about Shift 2, the Commissioner noted that the table records "100%", that he understood this to mean that there was 100% union density on Shift 2, and that Mr Cairns acknowledged this fact in his 5 October 2023 post when his wrote 'Shift 2 = 100%'. The Commissioner stated that as a union delegate, in the context of bargaining, there is nothing wrong with Mr Cairns celebrating the union's recruitment efforts.[55]

[56] The Commissioner then described the information in the spreadsheet about Shift 1 and found that the reference in the Shift 1 table to "53%" simply recorded that 53% of the shift are known members, and that it does not follow that 47% are not members of the union. The Commissioner found that the only conclusion to be drawn is that 47% are unknown, that no confidential or personal information is disclosed by virtue of a blank cell in the table and that consequently, no breach of any policy arises out of the list of blank cells under the heading "Membership". In our view such a conclusion was available based on the Commissioner's analysis of the information and language used in the table and the evidence of the witnesses. It is clear that the Commissioner did take into account the message which stated 'Shift 2 = 100%' and that he accepted Mr Cairns' explanation that the message was intended to be celebratory.

[57] Oher contrary conclusions were available from the same evidence about whether the spreadsheet published details about union membership on Shift 1, being the shift that does not appear to have 100% union membership. However it is not for the Full Bench to choose between available conclusions. Accordingly, no appealable error by the Commissioner with respect to Appeal Ground 1 is disclosed.

[58] We note that Oceaneering Australia submitted that that the concerns expressed by the complainants about the potential social consequences of their non-membership in a trade union being disclosed by Mr Cairns without their consent was not appropriately addressed by the Commission. This appears to be an additional ground of appeal which was not raised in the Notice of Appeal. The submissions about this matter have no foundation as the Commissioner specifically considered the impact of Mr Cairns' actions on the complainants by reference to the complainants' evidence that their complaints were 'not based on any direct experience at the time of being ostracised by other employees'[56] and 'not based on any direct experience at the time of inappropriate behaviour by any Company employee resulting from the publication of my details'.[57] The Commissioner observed that neither of the complainants gave any evidence about any direct adverse experience after publication.[58] Based upon his consideration of this and other evidence, including the WhatsApp message log, the Commissioner concluded that the allegations put by Oceaneering Australia were not substantiated. Such a conclusion was available to the Commissioner based on the evidence before him and no appealable error arises.

[59] Appeal Ground 2 alleged that 'the privacy laws...was the reason for termination of employment' however such laws were not referred to explicitly in the allegations which led to Mr Cairns' dismissal.

[60] The first allegation is potentially relevant to the Privacy Act as it referred to Mr Cairns publishing the 'personal details' of employee. Oceaneering Australia claimed that such conduct was in breach of various policies including its Human Resources Policy Manual which refers to the Privacy Act. The Human Resources Policy Manual notes that the Privacy Act protects the way an individual's personal information is handled, that employees may come across private information in the course of their employment, that personal information should be stored in a confidential and secure manner, that the information should not be used for any purpose other than that for which it was intended discussed with anyone, or passed to any third party other than one who is clearly required to perform the task for which the information was gathered or shared or requested about a third party unless authorised by the person concerned.

[61] The Commissioner extracted this section of the Human Resources Policy Manual in the Decision. In his analysis of the first allegation, the Commissioner noted that the spreadsheet was largely self-populated by employees on each of the shifts, however some of the cells in the table were populated by Mr Cairns with the permission of the relevant employee. The Commissioner found that the identity of each of the people on Shift 1 was not confidential nor personal information and that no breach of any policy arose out of the list of names. The Commissioner found that no breach of any policy arose from the list of phone numbers because there were no complaints received in relation to employees' phone numbers being on the table and the logical conclusion was that the person's phone number is unknown where there were blanks in the cells under 'Phone'. The Commissioner concluded that where there is a blank cell under 'Membership', the person's union membership is unknown and found that no breach of any policy arose from of the list of blank cells under the heading 'Membership.' It is clear on the face of the decision, that the Commissioner's finding that the publication of the spreadsheet did not breach 'any policy' included the Human Resources Policy Manual and its references to the obligations of employees with respect to personal and private information.

[62] The Commissioner was not required to go beyond the terms of the policies which Oceaneering Australia relied upon to justify the dismissal. There is no error in the Commissioner not applying the privacy laws to the complaint by the complainants, in circumstances where the Oceaneering Australia did not rely on such laws when terminating Mr Cairns or in the proceedings before the Commissioner.

[63] In relation to Oceaneering Australia's reliance on QF & Others v Spotless Group Limited and Seven Network (Operations) Limited v Media Entertainment and Arts Alliance, we note that neither of these cases dealt with the disclosure of information in relation to a person's union membership status. QF & Others v Spotless Group Limited was a decision of the Australian Information Commissioner and Privacy Commissioner about Cleanevent Australia Pty Ltd (Cleanevent) providing the Australian Workers Union with a list of Cleanevent's employees without the consent of the employees. In this case, the personal information was the names of the employees.

[64] In Seven Network (Operations) Limited v Media Entertainment and Arts Alliance, the Federal Court considered alleged breaches of the Privacy Act by the Media Entertainment and Arts Alliance (MEAA) and ACTU Member Connect Pty Ltd (Connect). Seven Network (Operations) Limited (Seven) and the MEAA were parties to an enterprise agreement which Seven sought to renegotiate. In the course of a subsequent dispute between the parties, the MEAA engaged a call centre, Connect, to survey employees of Seven about the proposed agreement. The MEAA provided Connect with an internal Seven telephone list for this purpose which Connect uploaded to its database. The Court found that Connect and the MEAA had breached the Privacy Act in numerous respects, arising from MEAA's provision of the internal Seven telephone list to Connect, and Connect collecting person information from persons it called on that list and providing this to the MEAA.

[65] Although both cases involved trade unions, neither decision considered trade union membership in the context of the Privacy Act nor do they stand for the principles claimed by Oceaneering Australia

[66] Accordingly, no appealable error by the Commissioner is disclosed in relation to Appeal Ground 2.

[67] Oceaneering Australia has not established thar there is an arguable case of appealable error. There is no relevant diversity of decisions at first instance as the decisions relied upon by Oceaneering Australia in this respect do not deal with the FW Act or the issue of disclosure of union membership status. Further, the appeal does not raise any legal or factual issue of significance or general application, the legal principles applied by the Commissioner are not disharmonious when compared with other decisions, and we do not consider that the Commissioner's decision is counter intuitive or manifests an injustice. These are all matters which weigh against a conclusion that that it is in the public interest to grant permission to appeal.

[68] We do not consider that it is in the public interest to grant permission to appeal and s.400(1) therefore prevents us from doing so.

[69] Accordingly, permission to appeal is refused.

[1] Travis Cairns v Oceaneering Australia Pty Ltd [2024] FWC 2611.

[2] [2014] FWCFB 4822.

[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ.

[7] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44]-[46].

[8] [2010] FWAFB 5343, 197 IR 266, [27].

[9] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481, [30].

[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

[48] [2019] AICMR 20.

[49] [2004] FCA 637.

[50] [2004] FCA 637

[51] [2019] AICMR 20

[54] [2024] FWC 2611, [31]-[32]

Printed by authority of the Commonwealth Government Printer