30 June 2025
Dean Allmark
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Dean Allmark,
Freedom of Information – Notice of decision
FOI Reference number: 24/25 – 75
I refer to your correspondence to the Fair Work Commission (
Commission) dated 31 May 2025, in
which you requested for documents under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Decision
I have decided to:
• grant you with partial access to a document which is captured by the first point of your request,
with selected information in that document conditionally exempt under sections 47E(d) and
47F of the FOI Act and the disclosure of that information would, on balance, be contrary to the
public interest; and
• refuse you access to any documents captured by the second and third point of your request on
the basis that those documents do not exist as contemplated by section 24A of the FOI Act.
For your information, I am authorised by the President of the Commission to issue decisions in response
to freedom of information (
FOI) requests. There is a statutory time frame of 30 days which applies in
responding to your request, and as previously advised, the due date for a decision in relation to your
request is
Monday 30 June 2025.
The reasons for my decision are explained in further detail in this Decision Letter. However, I will first
recap the request.
Request
On 31 May 2025, you wrote the following to the Commission:
“Requesting complete complaint statistics for Eastern Guruma Pty Ltd (ABN 68113717132) from
2018-2025 including:
Total number of contacts (calls, emails, formal complaints)
Breakdown of complaint outcomes (resolved, dismissed, jurisdictional rejections)
11 Exhibition Street
Email
: xxx@xxx.xxx.xx
Melbourne VIC 3000
GPO Box 1994
Melbourne VIC 3001
Specific count of cases dismissed due to Minimum Employment Period rules
Number of cases involving probation period disputes
Requesting all available data on:
Compliance actions taken against Eastern Guruma
Warning notices issued
Audit reports
Requesting information about:
Legal pathways to access contact details of affected employees
Approved methods for class action notification
Precedents for similar group claims
Purpose: This information will support investigation of systemic workplace violations and potential
group legal action.”
Your request covers numerous points and as such I have decided to divide the documents sought in
your request to three points.
Point 1 comprises the “total number of contacts (calls, emails, formal complaints)”, a “breakdown of
complaint outcomes (resolved, dismissed, jurisdictional rejections)”, “specific count of cases dismissed
due to Minimum Employment Period rules”, and “number of cases involving probation period
disputes”, as referenced in your request.
Point 2 comprises the data on compliance which includes the warning notices and audit reports
referenced in your request.
Point 3 comprises the “legal pathways to access contact details of affected employees”, “approved
methods for class action notification”, and the “precedents for similar group claims”, as referenced in
your request.
Commission staff have located one document captured by the scope of your request, being a document
which pertains to Point 1. That document has been generated with the involvement of a computer, as
per section 17 of the FOI Act.
Having recapped the request, I will turn to the reasons for my decision.
Reasons for decision
Materials considered
In reaching my decision, I considered:
• your request;
• the FOI Act;
• guidelines issued by the Office of the Australian Information Commissioner as per section 93A
of the FOI Act (
FOI Guidelines);
• the Commission’s statutory and administrative functions as an agency; and
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• the contents and context of the requested documents.
General principles
Section 11 of the FOI Act bestows upon you a legally enforceable right to access documents held by a
Commonwealth agency such as the Commission. I further note that if a decision-maker reaches a
conclusion that part of, or the entirety of a document falls within an exemption under the FOI Act, then
part of, or the entirety of that document, does not have to be disclo
sed.1 There is nothing in the FOI Act which limits what an individual can do with any document which is
released in response to a FOI request and that has been taken into consideration for the purposes of
this request.
A decision to give an individual access to a document under the FOI Act is generally done so on the
premise that the release of that document is disclosed to a wider audien
ce.2 Here, you have made your
FOI request via Right to Know, a website which describes itself as:
“[a]
site to help anyone submit a Freedom of Information request. Right to Know also publishes and
archives requests and responses, building a massive archive of information.”3
Any document which is disclosed to an FOI applicant who has made a FOI request through Right to
Know can be published onto the Right to Know website and be made publicly available. I have also
taken that into consideration when assessing your request.
I will now turn to my findings.
Findings – Point 1
The sole document which is captured by Point 1 will be released partially, with selected information in
that document conditionally exempt under sections 47E(d) and 47F of the FOI Act. Furthermore, the
disclosure of the conditionally exempt information would, on balance, be contrary to the public
interest. The reasons for this finding are detailed below.
Section 47E(d) (certain operations of agencies)
Section 47E(d) of the FOI Act provides:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected
to, do any of the following:
…
(d)
have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
(
emphasis added)
It is worthwhile addressing the wording of this conditional exemption.
1
Freedom of Information Act 1982 (Cth), s.31B.
2 [3.36] FOI Guidelines.
3 ‘Right to Know’,
Right to know (web page
) <https://www.righttoknow.org.au/>.
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The expression ‘would or could reasonably be expected’ requires the assessment of the likelihood of
the predicted or forecast event, effect or damage occurring after the disclosure of a docum
ent.4 The
use of the word ‘could’ in this context is less stringent than the use of the word ‘would’, in that it
requires the analysis of the reasonable expectation rather than the certainty of the event, effect or
damage occurring
.5 A reasonable expectation can include an effect which has occurred, is presently
occurring, or could occur in the fu
ture.6 With respect to the words ‘substantial adverse effect’ that term refers to “an adverse effect which is
sufficiently serious or significant to cause concern to a properly concerned reasonable person”
.7 In
particular, the meaning of the word ‘substantial’ in this context has been interpreted to mean the “loss
or damage that is, in the circumstances, real or of substance and not insubstantial or nominal”
.8 Furthermore, regard must also be had to the words ‘proper and efficient conduct on the operations of
an agency’. The word ‘operations’ is given its ordinary meaning, which includes a reference to an
activity, or something done by someone or something
.9 The words ‘conduct of an agency’ in this
context includes the manner “in which an agency discharges or performs any of its functions”
.10 This
can extend to not just statutory functions, but also captures, among other things, the administrative
functions of an agency such as the Commission.
Ultimately, the extent to which this exemption applies is greatly dependent on the circumstances and
context of the information in question
.11 Here, the information conditionally exempt under section 47E(d) comprises the matter number, and
the entries for the ‘last event’, ‘last event date’, ‘last result’, ‘last result date’, and ‘allocated to’ fields
which pertain to Commission matters which were not the subject of a Commission decision.
The relevant Commission matters, to which this conditional exemption applies, were dealt with by the
Commission in a confidential forum, which is permitted under the
Fair Work Act 2009 (Cth) (
FW Act)
.12
The disclosure of this information under the FOI Act would undermine the confidentiality of those
matters and in turn could reasonably be expected to disincentivise, or at the very least make parties in
a Commission matter, less willing to participate in and provide full and frank information to the
Commission in a conciliation or other such alternative dispute resolution forum facilitated by the
Commission. Such ramifications will substantially, and more relevantly, adversely affect the
Commission’s ability to facilitate outcomes in alternative dispute resolution forums which will thereby
hinder its ability in achieving its objectives in a manner which is quick, informal and avoids unnecessary
technicalities as well as one which promotes harmonious and cooperative workplace relation
s.13 It is
further noted that the Commission relies greatly on resolving matters via alternative dispute resolution.
It is for those reasons that the abovementioned information is conditionally exempt under section
47E(d).
4 [5.16] FOI Guidelines.
5
Re Maksimovic and Australian Customs Service [2009] AATA 28 at [28].
6 Ibid.
7
Re Thies and Department of Aviation [1986] AATA 141 at [24].
8
Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 at [383].
9
Utopia Financial Services Pty Ltd v Australian Securities and Investments Commission [2017] AATA 269 at [217].
10
Re James and Others and Australian National University (1984) ALD 687, 699.
11 Moira Paterson,
Freedom of Information and Privacy in Australia; Government and Information Access in the
Modern State (LexisNexis Butterworths, 2005), 311.
12
Fair Work Act 2009 (Cth), ss. 368(2), 398(2), 592(3).
13 Ibid, s.577(1).
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Section 47F (personal privacy)
Section 47F of the FOI Act states:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure
of personal information about any person (including a deceased person).
…
The FOI Act states that the meaning of the term ‘personal information’ is the same as that provided in
the
Privacy Act 1988 (Cth) (
Privacy Act).14 Relevantly, the meaning of the term ‘personal information’,
as defined in section 6 of the Privacy Act, is:
…information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
The personal information in question needs to be in relation to an individual (i.e. there must be a
connection between the information and the person
).15 This is a question of fact, and it depends on the
context and circumstances of the information in question
.16
When it comes to whether the disclosure of an individual’s personal information is unreasonable,
section 47F(2) of the FOI Act outlines the following considerations:
• the extent to which the information is well known;
• whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
• the availability of the information from publicly accessible sources;
• any other matters that the agency or Minister considers relevant.
Additionally, the below extract from
Re Chandra and Minster for Immigration and Ethnic Affairs17 also
provides some useful considerations in determining whether the disclosure of an individual’s personal
information is unreasonable. Those considerations, according to Deputy President Hall of the
Administrative Appeals Tribunal:
“… requires, in my view, a consideration of all the circumstances, including the nature of the
information that would be disclosed, the circumstances in which the information was obtained, the
likelihood of the information being information that the person concerned would not wish to have
disclosed without consent, and whether the information has any current relevance”.18
So too, do the following considerations with respect to the ‘other matters’ as referenced in section
47F(2)(d) of the FOI Act:
• the nature, age and current relevance of the information;
• whether the information is well known or available from other public sources;
14
Freedom of Information Act 1982 (Cth), s.4.
15
Privacy Commissioner v Telstra Corporation Limited (2017) FCR 24, 37.
16 [6.131] FOI Guidelines.
17 [1984] AATA 437.
18 Ibid, at [259].
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• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s collection and use of the information;
• whether disclosure of the information might advance the public interest in government
transparency and integrity; and
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI A
ct.19
The selected personal information which I will conditionally exempt under section 47F of the FOI Act
comprises the names of individuals who were applicants in the Commission matters which were not the
subject of a publicly available hearing and decision.
The personal information is not well-known and is not publicly available. Additionally, the disclosure of
at least some of the personal information could reasonably be expected to cause distress on the
affected individuals, given that a disclosure under the FOI Act could lead to those individuals reliving
the experience of a legal dispute with their former employer. Furthermore, the disclosure of the
personal information would have no benefit in advancing any issues pertaining to government
transparency and integrity, given that the matters listed in the document are individual employment
disputes. Finally, the personal information could reasonably be expected to be disseminated in a
manner which is outside of its intended consequences, whether that be done maliciously or otherwise.
There are no other factors which favour the disclosure of the personal information. It is for those
reasons that the personal information is conditionally exempt under section 47F.
Section 11A(5) (public interest factors)
Given that sections 47E(d) and 47F of the FOI Act are conditional exemptions, I need to consider the
public interest factors as contemplated by section 11A(5) of the FOI Act. Relevantly, section 11A(5)
states:
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a
particular time unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest.
In brief, access to a conditionally exempt document must be provided unless the degree of harm is of a
level which causes some harm or damage to the public interest and outweighs the factors in favour of
disclosur
e.20 As outlined in [6.224] of the FOI Guidelines, the public interest test is considered to be:
• something that is of serious concern or benefit to the public, not merely of individual interest;
• not something of interest to the public, but in the interest of the public;
• not a static concept, where it lies in a particular matter will often depend on a balancing of
interests;
• necessarily broad and non-specific; and
• related to matters of common concern or relevance to all members of the public, or substantial
section of the of the public.
Additionally, section 11B(3) of the FOI Act provides a list of factors which favour access to a document
in the public interest, namely:
19
‘FG and National Archives of Australia [2015] AICmr 26, at [47].
20
Jonathan Sequeira and Australian Broadcasting Corporation (No. 3) (Freedom of Information) [2023] AICmr 30
at [90].
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(3)
Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)
inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Finally, I cannot consider the irrelevant factors listed in section 11B(4) of the FOI Act, being:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause
a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the
document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access
to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
The disclosure of the conditionally exempt information could reasonably be expected to promote the
objects of the FOI Act.
However, the disclosure of the conditionally exempt information:
• would, or at the very least could, reasonably be expected to prejudice the affected individuals’
right to privacy;
• would, or at the very least could, reasonably be expected to undermine the Commission’s
alternative dispute resolution functions in respect of individual employment disputes;
• could reasonably be expected to impede on the collection of personal information from parties
in respect of matters which are before the Commission; and
• could reasonably be expected to serve no public purpose.
I have not considered the irrelevant factors listed in section 11B(4) of the FOI Act.
An evaluation of the above factors indicate that the disclosure of the conditionally exempt information
would, on balance, be contrary to the public interest.
Findings – Points 2 and 3
For the reasons outlined below, documents which are captured by the scope of Points 2 and 3 of your
request do not exist. An elaboration of these findings is detailed below.
Section 24A (documents do not exist)
Section 24A of the FOI Act states:
24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b)
the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii)
does not exist.
…
(
emphasis added)
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Paragraph [3.85] of the FOI Guidelines provides that an agency may refuse a request if it has taken ‘all
reasonable steps’ to locate a document which is the subject of a FOI request and is satisfied that that
document does not exist. The FOI Act does not provide a meaning to the term ‘all reasonable steps’.
The meaning of the word ‘reasonable’ in the context of section 24A of the FOI Act has been construed
as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such
an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpos
e.21
Steps which are comprehensive and are directed to locating the documents in those places are relevant
in ascertaining whether ‘all reasonable steps’ have been tak
en.22 What constitutes a reasonable search
will depend on the circumstances of the request itself and will be influenced by the normal business
practices of the relevant ag
ency.23 Additionally, and depending on the circumstances of the request, a
search of backup systems or archives in locating the requested documents may be necessary
.24
In relation to Point 2, compliance functions in relation to the conduct of an employer which are
administered by the FW Act are conferred on the Fair Work Ombudsm
an.25 Additionally, and
relevantly, a search of the Commission’s Legal Services internal records yielded no results which pertain
to Point 2 of your request. Given that those searches are reasonable in the context of section 24A of
the FOI Act, I am satisfied that documents captured by Point 2 of your request do not exist.
In relation to Point 3, the Commission is an industrial relations tribunal and not a legal advisory
servic
e.26 Any records which the Commission has pertaining to the entity referenced in your request is
the matter file for a Commission matter, in which that entity is a party. Given that section 24A does
require a commonsense consideration, I am satisfied that any such documents captured by Point 3 of
your request do not exist.
Rights of review
If you disagree with my decision, you have the right to apply for an internal review of my decision by
the Commission. Any request for internal review must be made to the Commission within 30 days of
being notified of my decision. The internal review will be conducted by an officer other than myself (as
the original decision-maker), and the Commission must make a review decision within 30 days.
Applications for internal review can be sent by email to
xxx@xxx.xxx.xx or by mail to GPO Box 1994
Melbourne VIC 3001, marked to my attention.
Review by the Information Commissioner
You can apply to the Information Commissioner for review of my decision. Further information in
relation to this can be found on the
Information Commissioner website.
How to make a complaint
You can complain to the Information Commissioner about action taken by the Commission in relation to
your FOI request. Enquires to the Information Commissioner can be made by telephone (1300 363 992)
or online vi
a an Enquiry Form.
21
De Tarle and Australian Securities and Investments Commission (Freedom of information) [2015] AATA 770,
applying
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138.
22
Bienstein and Attorney-General (Commonwealth of Australia) [2008] AATA 490, at [48].
23
Chu v Telstra Corporation Limited (2005) FCA 1730, at [35].
24
Trevor Kingsley Ferdinands and Department of Defence (Freedom of Information) [2024] AICmr 182, at [21].
25
Fair Work Act 2009 (Cth), s.703(1).
26 Ibid, s.576(1).
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This concludes my Decision Letter.
Yours sincerely,
Nick Kierce
FOI Delegate
Legal Services
Fair Work Commission
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