Fair Work Act 2009

s 483AA - Right of entry

Application for orders to access non-member records - long-running Award coverage dispute - other proceedings - application for a new enterprise agreement - whether order is necessary to investigate suspected contravention - other evidence is available or can be requested - historic underpayment issues acknowledged and corrected - underlying dispute to be shortly determined - orders are not necessary to investigate suspected contravention - exercise of discretion - no orders made - application dismissed.

[1] This matter has its genesis in a long-running dispute between the Maritime Union of Australia ('the Union') and Manly Fast Ferry Pty Ltd ('Manly Fast Ferry'). In essence, the dispute concerns the correct Modern Award to be applied for the purposes of the better off overall test (BOOT) in respect to negotiations for a new enterprise agreement covering public passenger ferry services and commercial / marine tourism services (including whale watching) in Sydney Harbour. The two competing Awards are the:

• (a) Ports, Harbours and Enclosed Water Vessels Award 2010 [MA000052] ('Ports Award'); and

• (b) Marine Tourism and Charter Vessels Award 2010 [MA000093] ('Marine Tourism Award').

[2] The primary dispute between the parties will ultimately be resolved in contested proceedings before me on 5 and 6 February 2018, following an application filed by Noorton Pty Ltd t/a Manly Fast Ferry (Noorton) on 24 July 2017 to seek the approval of an enterprise agreement made by the employees when they voted for its approval on 11 July 2017 (Matter no. AG2017/3080). The main issue in contest (as it has been for over two years) is the correct reference instrument for the purposes of the BOOT.

[3] With that background, I return to the present application. On 3 July 2017, the Union filed an application, pursuant to s 483AA of the Fair Work Act 2009 (the 'Act') seeking orders for access to non-member records. Specifically, the orders sought were as follows:

'For Manly Fast Ferry Pty Ltd (ABN 82 070 125 478) and/or Noorton Pty Ltd (ABN 90 135 008 070) to supply to the Permit Holder the following records for all "General Purpose Hands" and "Hosts/Hostesses" employed in [sic] for 1 April 2014 to date:

1. Pay Records (in accordance with Reg 3.33)
2. Overtime (in accordance with Reg 3.34)
3. Superannuation contributions (in accordance with Reg 3.37)'

[4] The grounds in support of the making of the orders were set out as follows:

'1. The Maritime Union of Australia is preparing prosecutions for a suspected breach of the Ports, Harbours and Enclosed Water Vessels Award for underpayment to of wages against Manly Fast Ferry Pty Ltd (ABN 82 070 125 478) and Noorton Pty Ltd (ABN 90 135 008 070).

2. The matter is current subject to a dispute before the Fair Work Commission in matter AG2016/7862.

3. The MUA has reviewed payslips of employees of the above companies. One identifies a casual employee during May / June 2017 in the classification of "Host" is being paid $20.00ph. The correct rate of pay for that worker for the period is $27.20ph under the Modern Award. We understand that for the hours worked for said employee, include penalty hours with applicable loadings which have not been factored in.

4. The MUA is aware that Employees in the "General Purpose Hand" and "Host" classification are not being paid in accordance with the Ports, Harbours and Enclosed Water Vessels Award and are earning less than what is identified in at least one of the following pay scales:

5. The Maritime Union of Australia currently has members employed at the Manly Fast Ferry operation in the classification of General Purpose Hand and Host with the employment of Manly Fast Ferry Pty Ltd (ABN 82 070 125 478) and/or Noorton Pty Ltd (ABN 90 135 008 070).

6. The contravention affects both members and non-members of Manly Fast Ferry Pty Ltd (ABN 82 070 125 478) and/or Noorton Pty Ltd (ABN 90 135 008 070) as it appears that all employees are being underpaid.

7. The Maritime Union of Australia, under Rule 3. - Eligibility, is entitled to represent the industrial interests of General Purpose Hands and Hosts who perform work with the employers Manly Fast Ferry Pty Ltd (ABN 82 070 125 478) and/or Noorton Pty Ltd (ABN 90 135 008 070).'

[5] The reference above to a dispute in matter no. AG2016/7862 is to an unresolved dispute previously before me, in which the Union, inter alia, sought a determination that the Ports Award applied to the employees of the respondents.

[6] The s 483AA application was listed for conference on 21 July 2017, but was unable to be resolved. Upon a request from the Union to have the matter arbitrated, the Fair Work Commission ('the Commission') issued directions for the filing and service of evidence and outlines of submissions in preparation for a hearing on 24 August 2017. At the hearing, Mr A Jacka, with Mr P Garrett, appeared for the Union and Mr S McCarthy, Solicitor, with Mr R Ford, CEO, appeared for the respondents. Mr McCarthy was granted permission to represent the employers, pursuant to s 596 of the Act, noting Mr Jacka raised no objection to his appearance.

[7] Only one witness provided written and oral evidence in the proceeding - Mr Paul Garrett, Assistant Secretary of the Sydney Branch of the Union and a permit holder under the Act (RE 2016/494). Mr Garrett claimed that the Union has members employed by Manly Fast Ferry Pty Ltd or Noorton. He believed there is confusion as to the correct employer identity, but for the purposes of his evidence, he referred to them both as Manly Fast Ferry. Mr Garrett said the respondents operate the following routes in Sydney Harbour:

• Manly-Circular Quay

• Manly-Darling Harbour

• Manly-North Sydney

• Manly-Pyrmont Bay

• Harbour Beaches Ferry

• Eco Hopper

• Whale Watching

[8] Mr Garrett referred to the background of negotiations for an enterprise agreement covering the employees employed by Manly Fast Ferry. All the employees are casual employees. In early 2015, a number of employees had expressed concerns as to their remuneration. It appeared that employees were receiving two rates of pay; one rate for peak hour services and a lesser rate for off-peak hours (10:00 am to 4:00 pm). In order to resolve the underpayment of wages issue, the Union sought negotiations for an enterprise agreement. The respondents issued Notices of Employee Representational Rights (NERRs) on 29 April 2015 and 26 April 2016, nominating Noorton and Manly Fast Ferry respectively as the employer. Mr Garrett said the negotiations were protracted, with disagreement as to the relevant Modern Award otherwise applying to the employees concerned. However, Manly Fast Ferry had agreed the Ports Award applied to its Manly-Circular Quay route, but not the others.

[9] Mr Garrett noted that a s 240 dispute application was filed on 2 August 2015. However, these proceedings, before Watson VP and later Dean DP, failed to resolve the relevant Award issue, notwithstanding the Union's consent to have the matter arbitrated, which the respondents rejected.

[10] Mr Garrett said that on 16 June 2017, the Union filed a s 739 dispute application. He said the dispute concerned:

i. Which modern Award currently applied to employees;

ii. Which enterprise agreement currently applied to employees;

iii. A breach of the [Ports] Award for an alleged underpayment of wages;

The respondents claimed that two workplace agreements covered the employees, namely:

1. The Noorton Pty Ltd T/as Bass and Flinders Cruises Pty Ltd Commercial Vessel & Whale Watching - General Purposes Hands - Workplace Agreement 2009 (the 'Commercial Vessels Agreement'); and

2. The Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009 (the 'Ferry Agreement').

[11] The Union disputed this view and whether those agreements applied at all. Confusion arose because employees' pay slips did not disclose whether employees were employed by Noorton or Manly Fast Ferry. This had consequences for whether the correct rates of pay were being paid to the employees. The respondents opposed the s 739 application on jurisdictional grounds and it remains unresolved.

[12] It was Mr Garrett's evidence that the Union suspected numerous breaches of the Ports Award, going back to April 2015. He gave an example of a casual employee who was underpaid if either the Ports Award or the Marine Tourism Award applied. He suspected breaches of both Awards. Mr Garrett referred to employees who are paid commission and who are also not paid Award rates when pay slips disclose no commission being paid. Mr Garrett gave an example as follows:

Mr Garrett added that even if commission was included, it would not meet or exceed the Award rate of pay.

[13] It was Mr Garrett's belief that because there is a regular turnover of employees, it makes it difficult for the Union to compare member and non-member rates of pay. In addition, many employees would be unaware that they had been underpaid. He relied on the employee numbering system, which discloses that there was an employee no. 240 in early 2015, but recent new employee numbers were commencing after no. 440, meaning a turnover of 200 employees in two years.

[14] Mr Garrett expressed a further concern of employees. If it is known they are Union members, that they will be precluded from further work, particularly given they are all casual employees and rostered hours had been reduced.

[15] In a second statement, Mr Garrett set out his findings after undertaking company searches on Manly Fast Ferry and Noorton.

[16] Mr Garrett challenged the respondents' recent position that the earnings of ticket seller employees are calculated on an hourly base rate of $20, plus periodic payments of commission on sales. He claimed this was contrary to what the respondents had told him in August 2015, which was that ticket sellers are paid the General Purpose Hand / Deckhand rate, plus 10% commission on all sales. In any event, commission is not part of the base rate of pay, as defined in s 16 of the Act.

[17] Mr Garrett claimed a further suspected breach involving two different periods of frequency of pay being paid to ticket sellers, fortnightly for wages and monthly for commission. This is contrary to the Commercial Vessels Agreement, which does not provide for combinations of weekly, fortnightly, four-weekly or monthly periods of payment.

[18] In further evidence in chief, Mr Garrett rejected the respondents' contention that the only ferry service was the Manly-Circular Quay route. He said except for the whale watching service, all the other routes are ferry services, operating under a timetable and conveying passengers from point A to point B. In these circumstances, the Ports Awards has traditionally applied.

[19] In cross-examination, Mr Garrett was asked about annexure PG6 to his statement - the pay slip for Mr Buono, dated 26 March 2015. He said the hourly Deckhand rate of $20.81 stated on the pay slip was even less than the equivalent rate under the Marine Tourism Award of $23.23. He believed this was evidence the respondent (Noorton) was underpaying employees in March 2015. Mr Garrett was shown an email from Mr Buono dated 25 March 2015, in which he complained about his rate of pay, and a replacement pay slip issued the next day (26 March 2015), disclosing his hourly rate was $27.60. Mr Garrett rejected Mr McCarthy's suggestion that these communications demonstrate the employer, Noorton, had immediately 'corrected' Mr Buono's rate of pay. Mr Garrett claimed he was unaware of the change in pay rates. Mr McCarthy asked if Mr Garrett was aware the rate of pay was corrected, and why he included an incorrect pay slip in his evidence. He accepted Mr Buono may have made him aware of the correction, but at the time, there were a number of pay slip corrections being made.

[20] Mr Garrett was asked about the heavily redacted pay slip he referred to in his statement at paragraph 29. He believed it was a ticket seller's pay slip for a period towards the end of the financial year 2015-16, disclosing a pay rate of $20 per hour and no commission. Mr Garrett was shown a ticket seller's pay slips for five weeks in June - July 2017. The ticket seller is unnamed, but identified as employee no. 454. The pay slips disclose commission payments of $1642.20 in the week of 25-29 June 2017. Mr Garrett assumed that this figure was for commissions in April and May, related to whale watching services. He agreed he had made his statement about this matter under the heading 'Ticket Seller Underpayment'.

[21] It was Mr Garrett's evidence that there had been a breach of s 16 of the Act, as demonstrated by an underpayment of ticket sellers who receive a base rate of pay and periodic commissions. Mr Garrett said the fact that the workplace agreement does not provide for different pay periods was not the only breach the Union alleged. It was claimed the base rate of pay was inadequate to meet the respondents' legal obligations, even if commission payments are included.

[22] Mr Garrett acknowledged that in a letter from the respondents, dated 7 August 2015, it was accepted that employees had not received recent wage increases of 6%, and only received 5%. The 1% adjustment was backdated to 31 March 2011. The rate for a General Purpose Hand was then $28.51 an hour. Mr Garrett accepted the respondents' General Purpose Hand rate was higher than the Ports Award rate in 2015 for Monday to Friday ordinary time, and remains higher two years later, as at 1 July 2017.

[23] In re-examination, Mr Garrett said he was unaware of how rates of pay compare when penalty rates are applied, or what the rates were for ticket sellers in respect to the Commercial Vessels Agreement.

[24] Mr Garrett raised issue with the rates of pay for the Manly-Darling Harbour route, which he understood (anecdotally) was paid as tourist work, rather than a timetabled ferry service.

[25] Finally, Mr Garrett understood employees, other than Mr Buono, did not have their payslips corrected in 2015.

[26] Mr Jacka relied on the witness statement of Mr Garrett and the Union's outline of submissions. After tracing the background to the application, Mr Jacka put that s 483AA provides that a permit holder may apply for an order to allow the permit holder to do either or both of:

i. requiring the affected employer to allow the permit holder to inspect and make copies of specified non-member records: s 482(1)(c); and

ii. requiring the affected employer to produce or provide access to specified non-member records.

[27] Mr Jacka said the question here is when the Commission may make such an order. Subsection (2) of s 483AA provides that the Commission may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. In undertaking this task, the Commission must have regard to any conditions imposed on the permit holder's right of entry permit. There is no suggestion any conditions apply to Mr Garrett's valid right of entry permit. Mr Jacka referred to the express exclusion in s 482(1)(a) in respect to non-union records and did not cavil with the privacy considerations required to be taken into account under s 504. However, the Union did not agree that s 483AA constitutes an exception to both the Act and the privacy rights of non-members. In this respect, he relied on Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 ('IEU v AIAE').

[28] Mr Jacka addressed why it was necessary to have access to non-member records to investigate a suspected contravention, by reference to the lengthy disputation with the respondents since 2015 in relation to underpayment claims. Relying on Mr Garrett's evidence, Mr Jacka opined that the suspected breach went to both Awards in contention and the industrial instruments the respondents claim apply to the employees. The Union had sought to address its concerns by engaging in enterprise bargaining, which has continued for more than two years.

[29] Mr Jacka noted the respondents' case that two workplace agreements have applied to the employees; see: paragraph [10] above, and which apply at different times of the day. This is a complex and unusual situation in which the employer applies two industrial instruments to an employee on any given day, subject to the work they perform, thus making it extremely difficult to work out any suspected breach, without access to member and non-member records. Moreover, the respondents have already made concessions and admissions that they have not correctly paid employees in the past.

[30] Mr Jacka rejected the respondents' submission that the Commission should first make a determination as to which Award applies. The statutory provisions only require a suspected breach, not an established breach.

[31] Mr Jacka relied on the Macquarie Dictionary definition of 'suspect' ('to think to be guilty; with little or no proof; to think to be likely; surmise; open to suspicion') to demonstrate that the Union need go no higher than that to make out its case. Which Award applies is not the test. In any event, Mr Jacka said that there is an abundance of evidence that would satisfy the Commission of a suspected breach. Mr Jacka added that in respect to the suspected breaches of both Modern Awards and the workplace agreements, Mr Garrett gave evidence that the respondents were not paying the ferry rates for routes which are clearly ferry services. Mr Garrett's evidence in this regard was not challenged. This was sufficient to satisfy the 'suspected breach' test. There are then flow-on effects to incorrect overtime rates and leave payments (although the entire workforce is casual).

[32] Mr Jacka referred to the pay slips provided by the respondents for a period in July / August 2015 and its admission that it had been incorrectly paying employees and had corrected the payments. This was not a basis to claim there was no suspected breach, because there is no evidence that the corrected payments applied across the entire workforce (including those who had left), or whether, and to what extent, retrospectively it had been addressed. On that basis alone, the Union's application should succeed.

[33] Mr Jacka also pointed to the respondents' evidence concerning one ticket seller's pay slips only, and no other employee or the extent of any retrospectivity for that person and all other ticket sellers.

[34] Mr Jacka noted that the respondents' own position was unclear in August 2015, when it said in its letter of 7 August 2015:

'In the interim, that is in the period from 1 April 2015 until the new enterprise agreement comes into operation, it is somewhat unclear as to what exactly is the correct application of the various industrial instruments that could have application.

From [Manly Fast Ferry]'s perspective, the situation would appear to be as follows during this interim period.

The ferry services between Circular Quay to Manly during morning and evening peak hours period Monday to Friday, the Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009 would continue to apply.

For ferry service between Circular Quay to Manly outside of the morning and evening peak hours Monday to Friday the ports, harbour award [sic] applies.'

He added, 'Then they say that for all other vessel services, the Commercial Vessel Agreement applies.'

[35] Ultimately, Mr Jacka put that the Commission's grant of the order is a discretionary decision; see: Barton v Teys Australia Beenleigh Pty Ltd [2016] FWC 899 (Barton v Teys).

[36] Mr McCarthy provided detailed submissions in opposition to the Union's application. The submissions commenced with a background to the respondents' securing a seven-year commercial contract with the NSW Government on 1 April 2015 to provide all day ferry services between Manly and Circular Quay. Prior to this, the respondents had ferry services and marine tourism activities, operating under the two workplace agreements (the Ferry Agreement and the Commercial Vessels Agreement). It was acknowledged that the employees would work under the two agreements, depending on whether they were engaged in ferry services or marine tourism services.

[37] At that time (2010), the ferry services of Manly Fast Ferry were transferred to Noorton, but Manly Fast Ferry remained as the brand name. When the negotiations for a new agreement commenced in May 2015, the respondents were of the view that the final outcome was to be 'blended and averaged' in order to remain competitive with other operators, such as Sea Link and Fantasy.

[38] Mr McCarthy stressed that from a NSW Government perspective and the State transport legislation and regulations, a 'ferry service' must be a Government-contracted service. This means that technically, the only ferry service conducted by the respondents is the Manly-Circular Quay service, notwithstanding the Ferry Agreement rates are applied to the Manly-Darling Harbour service. No other service is a ferry service. Mr McCarthy claimed that the respondents' competitors are not covered by the Ports Award, but by the Marine Tourism Award.

[39] Mr McCarthy submitted that after two years of unsuccessful bargaining with the Union, its real motivation for this application is to have the Ports Award underpin the respondents' operations and be the only reference instrument for the purposes of the BOOT in respect to the now-filed enterprise agreement. It was said that throughout bargaining, the Union had repeated its threat to pursue underpayment claims.

[40] It was further submitted that up until 2015, the respondents were unaware of the statutory provisions of s 206 of the Act, which require wage rates in a workplace agreement not being below the base rate prescribed in the otherwise-applicable Modern Award. As a result of its checking, the respondents increased wage rates for General Purpose Hands and Host employees to $23.81 an hour under the Marine Tourism Award and made a mistake of 1% in relation to its Ferry Agreement. This is referred to in the letter of 7 August 2015, mentioned in Mr Garrett's evidence. Mr McCarthy referred to the pay slips shown to Mr Garrett in cross-examination, which, it was claimed, had demonstrated that over a two-year period, the rates of pay for its employees were, and are s 206 compliant. The Union knows this to be the case. Accordingly, this application is without justification and is just a 'fishing expedition'.

[41] In referring to the statutory provisions relevant to the application. Mr McCarthy submitted that s 482 of the Act identified a general provision that a permit holder does not have a right to access non-member records in order to protect the privacy rights of non-members. This connection is recognised by Note 2 to s 482(1), which reads:

'Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.'

It follows that an order under s 483AA constitutes an 'exception' to the general principle and the Commission can only make an order granting access to non-member records:

(a) if it is satisfied that the order is necessary to investigate the suspected contraventions; and

(b) even if the Commission is so satisfied, there is still a discretion as to whether or not the Commission will make the order; see: Barton v Teys at [21]-[24]. Mr McCarthy contended that this decision confirms that:

ii. the Commission retains a discretion to make the order sought.

[42] Mr McCarthy submitted that given the Union asserts it has members who have been employed by the respondents, for over two years as General Purpose Hands and Hosts, and it would be entitled to, and indeed has obtained members' records from them, it is unnecessary for the Union to seek non-member records. This is the only issue at the heart of the application, and the Union cannot establish it is necessary to gain access to non-member records.

[43] Mr McCarthy attended to each of the Union's other grounds in support of the application as follows:

The MUA alleges that there is uncertainty as to 'the identity of the employer'.

[44] Mr McCarthy rejected the Union's claims of uncertainty as to the true employer. The employer is Noorton Pty Ltd t/a Manly Fast Ferry and the Union is fully aware of this fact. Mr Garrett referred to two pay slips, two years apart, which both have Noorton Pty Ltd clearly identified. Mr McCarthy noted the Union's submission, which refers to two NERRs issued by Noorton in April 2015 and June 2017. Mr McCarthy conceded that one NERR issued in April 2016 identified Manly Fast Ferry Pty Ltd as the employer, but this was a result of an intention of the respondent to place all employees under a related corporate entity. However, this change did not proceed and at all times in the recent two-year period, the employees have been employed by Noorton. In addition, in the recent s 739 dispute, the Union named the incorrect employer, which was corrected to Noorton. The recently-made enterprise agreement filed with the Commission makes it clear the agreement is between Noorton and its employees.

The MUA alleges that the uncertainty as to the identity of the employer - has the result that the Workplace Agreements the employer alleges apply to the employees have no application.

[45] Mr McCarthy addressed the submission of the Union that the use of different ABNs on employees' pay slips means that neither of the workplace agreements applies to employees and they are covered instead by a Modern Award.

[46] Mr McCarthy set out the history of Award coverage since 2009 and submitted that with the commencement of the Act in 2009, the two workplace agreements continued to operate by way of the provisions of the transitional legislation. In 2010, all employees became employed by Noorton when employees of Manly Fast Ferry Pty Ltd transferred to Noorton. The two entities are 'associated entities' in accordance with s 311(6) of the Act. This position remains the same today, with the employer being Noorton and the two workplace agreements currently being applied.

The MUA alleges that there is a dispute between the MUA and the employer in regards to which Award applies - and that this is a relevant matter under s 483AA

[47] Mr McCarthy put that Mr Garrett and the Union continue to incorrectly assert that the Ports Award applies to the employment of the employees. This is not legally correct, as the Ports Award is excluded from applying to the employees' employment by the continued operation of the two workplace agreements. He relied on clause 7 in each of the agreements to support this conclusion. The clause in the Ferry Agreement reads:

'7. RELATIONSHIP TO PARENT AWARD & OTHER AGREEMENTS

7.1 The terms and conditions of this Agreement shall replace in its entirety the terms and conditions of the NAPSA known as the Motor Ferries (State) Award and all variations thereof, and any Award or industrial instrument replacing such NAPSA which would otherwise govern the employment relationship between the Parties to this Agreement.

7.2 NOTE: The terms and conditions of this Agreement are based on the more generous provisions of the State Transit Authority of New South Wales Ferries (State) Award rather than the otherwise applicable NAPSA.

7.3 This Agreement supersedes any and all previously existing agreements or arrangements between the parties, whether oral or written and supersedes any and all previously existing agreements, which may have, but for the lodgement of this agreement, governed the employment relationship between the parties.'

Clause 7 of the Commercial Vessels Agreement is in like terms.

[48] Mr McCarthy said the real motivation of the Union in this case and the earlier dispute proceedings is to seek a determination of which Modern Award applies. That is not an appropriate matter to be dealt with under this application. That question will be determined in the proceedings for approval of the new enterprise agreement.

The MUA alleges that there is documentary evidence to reasonably suspect that the employer has been underpaying employees by not paying at least the Award rates of the Ports Award over a period of more than two years.

[49] Mr McCarthy referred to the only evidence in this respect relied on by the Union, which was the two pay slips going back to March 2015. What the Union fails to mention is that when the incorrect rate was raised at that time, it was immediately acknowledged and corrected.

[50] In respect to the heavily-redacted recent pay slip of a ticket seller, the Union did not take into account that commission for the relevant period equated to an additional $205.28 per week. From 1 July 2017, the ticket seller's base rate was adjusted from $20 an hour to $25.19 an hour, placing the rate higher than the rate of $24.39 an hour, otherwise applicable under the Marine Tourism Award.

[51] Accordingly, Mr McCarthy submitted that the historic pay slips relied on by the Union do not represent evidence that the respondents have been underpaying employees for more than two years, nor that there have been 'numerous breaches' by the respondents. The chain of seven letters between the parties from 31 May to 20 June 2017 show that the Union was fully aware of the circumstances described above and there is no reasonable basis to assert that the respondents are in breach of their legal obligations.

The MUA alleges that because all employees are casual employees and there has been a significant turnover of employees (some 200 in 2 years).

[52] Mr McCarthy submitted the Union's assertion of an employee turnover of 200 over two years is simply wrong and its methodology for so asserting is flawed. Mr McCarthy noted that at the commencement of the new ferry services contract in 2015, the Company increased its workforce by 40. Today, some 15 of the Company's casual vessel crew have been with the Company since 2015.

[53] As to preference for a casual workforce, Mr McCarthy claimed that a number of employees have a strong preference to be, and remain casual. The Company's reasons for a casual workforce include:

[54] Mr McCarthy noted that when the Company recently proposed mandatory casual conversion to permanent employment, it was resisted by the employees, and the new agreement provides for a discretionary option of permanent employment after six months of casual engagement.

[55] Finally, Mr McCarthy put that the respondents reiterated its offer of cooperating with the Union as to any specific examples of alleged underpayment to any employees.

[56] In further oral submissions, Mr McCarthy said that the mistakes in 2015, corrected at the time, were accepted by Mr Garrett. Mr McCarthy reiterated that on the Union's own case, it has members, and has had members throughout this entire period. If the Union suspects a contravention, then it has the right of access to its members' records to investigate any alleged breach. In those circumstances, it is unnecessary to access non-member records. What is really going on here is not a debate about s 483AA, but rather a debate about what Modern Award should apply to the work of the employees, and what is, or is not ferry work.

[57] As to the argument about s 16 of the Act and the applicability of the base rate of pay, Mr McCarthy relied on the Explanatory Memorandum to the Fair Work Bill 2008, which gives the meaning of base rate of pay a very specific, limited purpose. He quoted paragraph 74 as follows:

'The definition [of base rate of pay] is relevant to calculating the amount payable to an employee when they take various forms of leave under the NES, including paid annual leave, paid personal carer's leave, payment for an absence from work on a public holiday or when a female employee takes paid no safe job leave.'

[58] Mr McCarthy submitted that s 16 does not say that if you pay rates that include a commission and which do not equate to the applicable award rate, that is a breach. Section 16 deals only with the National Employment Standards (NES) and various paid leave provisions; it has nothing to do with underpayment of wages. In any event, as Mr Jacka properly conceded, s 16 deals with leave and is irrelevant as the employees are casuals.

[59] In answer to a question from me, Mr McCarthy said that the Union has not asked to have access to any of its members' records. The Company has never been asked to provide pay records. The Union has only requested information as to what is paid to employees.

[60] In reply, Mr Jacka said there was no direct evidence from any employee of their preference for casual employment - only the views of the respondents. The request for non-member records should be seen in the context of a high turnover of casual employees, a relatively low density of Union members and genuine concerns that employees being known to be members, will be denied casual work. Mr McCarthy noted that the employee numbering relied on by Mr Garrett did not take account of another operation at Botany Bay and the higher staff numbers over the last two Christmas / New Year periods.

[61] Section 483AA provides as follows:

'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

[62] Non-member records or documents are defined in s 482(2A) as:

'(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.'

[63] My research reveals that there has been no Full Bench consideration of s 483AA of the Act and the principles to be applied by the Commission in deciding applications under the section. There is a handful of short, single-Member decisions which have resulted in consent orders; see: Barton v Teys; Butler & Sutton v Qantas Airways Limited [2011] FWA 1579, or have been determined, ex parte, by the Commission; see: Transport Workers' Union of Australia, Bogle & Williams [2012] FWA 8247; Transport Workers' Union of Australia [2016] FWC 8197 and Fitzgibbon, Bolitho, Hardy, Smith & Construction, Forestry, Mining and Energy Union [2017] FWC 1856. Obviously, the present application is opposed by the employer.

[64] I note that in Barton v Teys, Asbury DP was dealing with a consent application in which the information sought by the permit holder related to an incentive payment scheme, based on work performed by employees collectively, not individually; that is, the collective group included member and non-member contributions to the overall incentive payment. This made it impossible to investigate individual breaches, unless the totality of the workforce was taken into account. That is not the situation here.

[65] At paragraphs [21] and [22], Her Honour said:

[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.'

and at paragraph [24], Her Honour further explained:

'[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.'

[66] Notwithstanding the dearth of Commission authority relating to s 483AA, Mr Jacka relied on the judgement of the Federal Court of Australia (Jessup J) in IEU v AIAE, in which His Honour tracked the history and legislative intent of s 483AA, and concluded as follows at paragraphs 109-115:

'109. It is apparent that the extent of a permit-holder's right to inspect and to copy documents which related only to employees who were not members of the relevant organisation has, over the years, been a sensitive question at the policy level. The balance which the legislature sought to achieve in Pt 3-4 was the subject of observation by Flick J (Tracey J concurring) in Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389, 405-406 [56]-[59]. The provisions are beneficial ones, and should be construed with an eye on the important role of organisations in protecting their members against contraventions of statutory and award provisions. But the particular provisions with which I am concerned in this case have been the subject of very detailed attention by the legislature, and involve some rather fine discriminations which, the history shows, were consciously made.

110. Returning to the terms of Pt 3-4 of the FW Act itself, s 482 operates only where there is a suspicion of contravention which relates to, or affects, a member of the permit-holder's organisation (and then only where the organisation is entitled to represent the industrial interests of that member, and the member works on the premises concerned). The section permits the permit-holder to inspect any work, process or object that is relevant to the suspected contravention. Insofar as this provision relates to work, it is not limited to work done by the member concerned - nor even, for that matter, by a member - but it must be relevant to the suspected contravention. Under para (b) of subs (1), the person who may be interviewed is not limited to a member of the organisation (but is limited in other ways). And, absent the passage in parenthesis, the right to inspect and to copy a record or document would not be so limited either, but the record or document has to be directly relevant to the suspected contravention and be kept on the premises or accessible from a computer kept on the premises.

111. But the passage in parenthesis places a further limit on the range of records and documents that may be inspected and copied under para (c) of subs (1). So, even a document which is kept on the premises and which is directly relevant to the suspected contravention may not be inspected or copied if it falls within the definition of "non-member record or document" in subs (2A). It is only with such a document that s 483AA is concerned.

112. Section 483AA shows that the legislature recognised that there may be situations in which, for the proper investigation of the suspected contravention, it was necessary for the parenthetical exclusion in s 482(1)(c) to be lifted. The notion of "necessary" in s 483AA(2) carries the meaning that the investigation could not be properly investigated with that exclusion in place. Whether or not that would be so in a particular case was a matter for the satisfaction of FWA (as the Commission was called at the time of the facts of the present case). Absent the availability of a conventional ground of administrative law challenge (such as that made by the respondents here), the question whether a s 483AA order was necessary in a particular case would not be justiciable elsewhere.

113. As a measure of how limited is the process for which s 483AA provides, FWA was required to consider the matter of necessity not in the broad, but only in relation to "specified non-member records or documents". Thus, although under s 482(1)(c) in its primary operation it was a matter for the permit-holder (at least in the first instance) to identify the records or documents sought to be inspected and copied, in the operation of the paragraph as extended by an order made under s 483AA it was a matter for FWA to specify the non-member records or documents that might also be inspected and copied.

114. Whatever order might have been made in a particular case under s 483AA, the permit-holder's right to require inspection and copying of non-member records or documents could not travel beyond the other limits imposed in s 482(1)(c). Put another way, even with the assistance of such an order, he or she could never have a right to require inspection and copying of non-member records or documents more extensive than his or her right to require inspection and copying of other records or documents. Specifically in the context of the respondents' point in the present case, those records or documents had to be directly relevant to the contravention - being one which related to or affected a member - which the permit-holder suspected.

115. It follows, in my view, that the question which FWA was required to address under s 483AA was whether it was necessary, for the proper conduct of the investigation, that the documents which the permit-holder was entitled to require to be inspected or copied under s 482(1)(c), as being directly relevant to the contravention, included non-member records and documents as defined.'

[67] In my view, the key consideration in s 483AA is found at subsection (2) and the satisfaction the Commission must have that the order is necessary to investigate the suspected contravention. The test of satisfaction hinges on the word 'necessary'. It is to that matter which I now turn, by formulating a question: Is the order 'necessary' for the permit holder to investigate a suspected contravention?; or, as Jessup J put it, 'The notion of necessary in s 483AA(2) carries the meaning that the investigation could not be properly investigated with that exclusion in place.'

[68] Despite the detailed arguments of Mr Jacka, I am not satisfied that it is necessary to order access to non-member records in order for the permit holder to investigate a suspected contravention. The primary reason for this conclusion is that the Union has provided evidence of member records it has in its possession, and which it claims support its suspicion that employees have been underpaid. In other words, the Union has the evidence it needs (or that is necessary) to investigate the suspected contravention.

[69] In my opinion, this application is both premature and misconceived. I note the Union has not even requested access to its members' records. The respondents have told the Union on a number of occasions what is being paid to employees. I do not accept the proposition that members are not prepared to disclose their Union membership for fear of being denied shifts or refused work completely as casual employees. There is no evidence to support this submission. Moreover, at least one employee has already been identified - Mr Buono. It hardly needs to be said that there are provisions under the Act to protect employees from such adverse action, and their Union is hardly known for its timidity or reluctance to forcefully and strenuously enforce its members' rights.

[70] In any event, I do not see how the Commission could get to the level of satisfaction required to then exercise its discretion to make the orders requested in circumstances where the Union already has possession of some members' records (and possibly more) and has failed to request other of its members' records.

[71] I say this application is premature because I agree with Mr McCarthy's submission that this application is intrinsically linked to the two years of unsuccessful negotiations about which Award should apply to the work of the employees. That matter will be determined after proceedings on 5 and 6 February 2018 in the application for approval of the new enterprise agreement.

[72] It seems to me that until that issue is resolved, it would be a confusing and uncertain, if not a barren, exercise to investigate a breach of a number of alternative outcomes. It will produce no clarity at all as to whether there is a breach, what the breach is and the extent of any breach. Of course, the Union suspects underpayment of wages whether the reference point is the Ports Award, the Marine Tourism Award or even the Commercial Vessels Agreement and the Ferry Agreement.

[73] In my view, this application is 'putting the cart before the horse'. It seems to me that because the issue of which instrument applies to the work in question will shortly be determined, a court of competent jurisdiction would be reluctant to second-guess that exercise, not to mention the duplication of resources or the possibility that two jurisdictions might make different findings.

[74] I add that given the historic coverage argument has been raging unresolved for over two years, a few more months will not result in any prejudice to the employees concerned, who may, or may not have underpayment claims subsequently against the respondent.

[75] In addition, I am not satisfied that the Union's evidence of one allegedly incorrect pay slip from over two years ago, which was corrected and accepted at the time, establishes many suspected breaches, justifying the orders being made for access to non-member records. I observe that the Union criticised the respondents' reliance on one employee's pay slips, but itself relied on one pay slip (Mr Buono's) to support its own arguments.

[76] Moreover, the one pay slip of a ticket seller in 2016 was answered by the respondents in respect to additional commission payments. In my opinion, while there may be arguments as to whether the rates of pay are compliant with s 206 of the Act, the evidence is not sufficient to satisfy me that access to non-member records is necessary to investigate a suspected breach. I also accept that s 16 of the Act is irrelevant as it applies to leave payments under the NES, and the employees in question, being casuals, would have no rights to paid leave.

[77] Finally, the reasons for this application do not set out that the suspected breach was also in respect to the Marine Tourism Award, the Commercial Vessels Agreement and the Ferry Agreement. The application only refers to suspected breaches of the Ports Award. The Union did not seek to amend its application to reflect breaches under those other industrial instruments. Accordingly, I cannot be satisfied that the application properly sets out the reasons for the application, as is commanded by subsection (4)(b) of s 483AA.

[78] For all the aforementioned reasons, I am not satisfied that the orders proposed by the Union are necessary to investigate a suspected contravention of the Ports Award. For completeness, and if I am wrong about my finding in the paragraph above, I am not satisfied that the orders proposed by the Union are necessary to investigate a suspected contravention of either the Ports Award, the Marine Tourism Award or the two workplace agreements.

[79] It follows that I decline to exercise my discretion to make orders under s 483AA(2) of the Act. The application is dismissed.

S McCarthy, solicitor, with Mr R Ford for Manly Fast Ferry Pty Ltd

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