Fair Work Act 2009 s.519 and s.483AA - Application for an exemption certificate - Application for an order to access non-member records.

[1] On 13 September I conducted an ex parte hearing in relation to applications made by the Transport Workers' Union of Australia (TWU) for Orders under s.519 and s.483AA of the Fair Work Act 2009 (the Act). The Respondent in relation to these applications is Arkwood (Gloucester) Pty Ltd (Arkwood). On 20 September 2012, a solicitor employed by M & K Lawyers communicated by telephone with my Associate seeking details in relation to those proceedings on behalf of Arkwood.

[2] The Solicitor was informed that there had been applications under s.519 and s.483AA of the Act; both applications had been heard on an ex parte basis; the s.519 application had been withdrawn; the s.483AA Orders had been granted; transcript of proceedings is confidential and had not been released; and that I would issue written reasons for the decision to grant the s.483AA Order upon request. That request was made, and I set out below my reasons for dealing with the matter on an ex parte basis and for making the s.483AA Orders.

[3] The application under s.519 of the Act sought an exemption certificate for entry to the premises of Arkwood, for the purposes of investigating a suspected contravention of the Act as provided in s.481. The application set out grounds relating to suspected contraventions of section 350 of the Act in respect of inducements and s.340, 341, 346 and 347 with respect to adverse action against members of the TWU.

[4] Section 519 of the Act provides as follows:

(1) FWA must issue a certificate (an exemption certificate) to an organisation for an entry under section 481 (which deals with entry to investigate suspected contraventions) if:

(a) the organisation has applied for the certificate; and

(b) FWA reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence.

(2) An exemption certificate must specify the following:

(d) particulars of the suspected contravention, or contraventions, to which the entry relates;

(e) section 481 as the provision that authorises the entry.

[5] Section 483AA is in the following terms:

483AA Application to FWA for access to non-member records

(1) The permit holder may apply to FWA 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) FWA may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, FWA must have regard to any conditions imposed on the permit holder's entry permit.

(3) If FWA 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

[6] An ex parte hearing was conducted on 13 September 2012, on the basis that s.519 of the Act necessitates this approach. The applications for Orders under s.483AA were listed at the same time as the s.519 application, on the basis that the same facts were relied on in support of both applications. I determined that the applications should be heard together on an ex parte basis because to hear them separately would defeat the purpose of the s.519 application.

[7] In the course of proceedings, I indicated my view to the TWU that the bar for an applicant seeking an Order under s.519 is high, and this is particularly so given that the section essentially necessitates applications being dealt with on an ex parte basis without the organisation subject to the application being heard_._ To make such an Order, FWA is required to form a reasonable belief that advance notice of entry might result in the destruction, concealment or alteration of relevant evidence.

[8] I also indicated some reservations to the TWU in relation to making the Order under s.519 in light of the fact that there was no evidence of any propensity on the part of the employer subject of the Order to engage in the kind of conduct to which s.519 is directed. I also indicated that prima facie there was a basis for the Orders under s.483AA to be made. On that basis the TWU withdrew the application for the s.519 Order.

[9] On the material provided by the TWU in support of the s.483AA applications, I formed a view that there is a reasonable basis for the TWU to suspect a contravention of the Act that relates to or affects members. The suspected contravention relates to a number of matters including the treatment of members and non-members in relation to the offering of Individual Flexibility Agreements under relevant Awards.

[10] I am satisfied, pursuant to s.483AA(2) of the Act that an Order allowing officials of the TWU to inspect and make copies of specified non-member records is necessary for the investigation of the suspected breach. I also note that the records subject of the Orders are required to be kept as time and wages records under both the relevant Award and the Act.

[11] Accordingly, Orders under s.483AA were issued [PR529235] and [PR529236].

Mr A. Carter on behalf of the Transport Workers' Union of Australia.

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