Our reference: FOI-000658
30 April 2017
Mr Jason Simpson
By email to: Jason Simpso
n xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Simpson
Notice of Decision – Freedom of Information Request
I refer to your request received on 31 March 2017 under the
Freedom of Information Act
1982 (
FOI Act) for access to information regarding the Fair Work Ombudsman's (
FWO) role
in the government's interdepartmental or cross agency illegal phoenix task force. In your
request, you specifically ask, “What is the role of the FWO in the illegal phoenix taskforce?”
DECISION AND STATEMENT OF REASONS FOR DECISION I am authorised by the Fair Work Ombudsman (
FWO), under s. 23 of the FOI Act, to make
decisions on requests for access to documents. In making my decision, I took into account
your request, the FOI Act, the Australian Information Commissioner’s Guidelines and
discussions with FWO staff.
In accordance with s. 26 of the FOI Act, this is my Statement of Reasons.
Background
The FWO is one of 20 government entities that make up the Phoenix Taskforce, committed
to combatting the problem of illegal phoenix activity. The work of the taskforce and the
different strategies employed by the Taskforce to date are outlined for the public on a
number of dedicated pages available on the website of the Australian Taxation Office,
including via this link -
https://www.ato.gov.au/General/The-fight-against-tax-crime/Our-
focus/Illegal-phoenix-activity/Phoenix-Taskforce/
The FWO has also referred to its ongoing work on several occasions in detecting and
deterring fraudulent phoenix behaviour by participating in the Inter-Agency Phoenix Forum
and the Phoenix Taskforce. Examples of these references can be found in the FWO Annual
Report for 2015-16, including via the fol owing link –
https://www.fairwork.gov.au/annual-report/02-performance-report/stakeholder-engagement
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Each of the government agencies which make up the Phoenix Taskforce, exercise their
separate legislative functions to further the aims of the Taskforce, as well as combining to
commission research reports and discuss collaborative strategies.
The FWO uses its existing powers under the
Fair Work Act 2009 to take legal action against
employers that fail to comply with workplace laws and have been identified as phoenix
operators. The FWO also provides advice to employees to assist them in recognising the
warning signs that they may be working for phoenix companies, as outlined here -
https://www.ato.gov.au/General/The-fight-against-tax-crime/Our-focus/Illegal-phoenix-
activity/
There have also been occasions where the FWO has shared information with other
government bodies on the Phoenix Taskforce, such as the Australian Securities &
Investments Commission (ASIC), to enable other enforcement action to be taken against
phoenix operators.
Access Refusal – s.24A
I have arranged for a search of the FWO’s internal records and can confirm that there are no
separate documents containing information about the FWO’s specific role in the Phoenix
Taskforce. For this reason, I have decided to refuse access to the documents you have
requested on the basis that they do not exist.
I note that my
decision is confined to
documents addressing your specific request, which was “What is the role of the FWO in the
illegal phoenix taskforce?”.
Section 24A of the FOI Act is entitled ‘Requests may be refused if documents cannot be
found, do not exist or have not been received.’ It states:
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.
I am satisfied that the FWO has undertaken al relevant searches and taken all reasonable
steps to find documents relevant to the information you are seeking. No such documents
exist. I am therefore refusing you access, under s. 24A of the FOI Act, to the documents you
sought on the basis that they do not exist.
Review Rights
I have attached a document setting out your rights of review of this decision (
Attachment A).
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Contact details
If you need further information, please send an email to
xxx@xxx.xxx.xx. Yours sincerely
Sally Dennington
Director – Customer Feedback and Information Access
Fair Work Ombudsman
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Attachment A
INFORMATION ON RIGHTS OF REVIEW & COMPLAINTS
Rights of review
If you are dissatisfied with this decision you can apply for internal review by this agency (Option 1
below) or external review by the Australian Information Commissioner (IC Review) (Option 2 below).
You do not have to apply for internal review before seeking IC review. However, the Information
Commissioner has expressed the view that it is preferable for a person to seek internal review by the
agency before applying for IC Review. If you choose Option 1 (internal review), you can also apply for
IC review of the internal review decision within 60 days after receiving notice of our decision.
Option 1 – Internal review
You can seek internal review of the decision. An application for internal review must be made in
writing within 30 days after the date you were notified of the decision, or within such further period as
the Fair Work Ombudsman allows. The internal review will be conducted by a senior officer who had
no involvement in the initial decision.
There is no particular form required to make a request for internal review. However, it would help the
reviewer if you said, in writing, why you think the decision should be reviewed.
An application for an internal review of the decision should be sent to:
Email:
xxx@xxx.xxx.xx
Or
FOI Manager
GPO Box 9887
MELBOURNE VIC 3001
Option 2 – Review by the Australian Information Commissioner
Alternatively, you can apply in writing to the Australian Information Commissioner for IC review of the
decision. An application for IC Review must be made within 60 days after the day you were given
notice of this decision.
In making your application, you need to provide an address for notices to be sent (this can be an email
address) and a copy of this decision. It would also help the Australian Information Commissioner if you
set out the reasons for seeking IC review in your application.
To apply for IC review, please refer to the FOI Fact Sheet 13 issued by the Office of the Australian
Information Commissioner
(http://www.oaic.gov.au/images/documents/freedom-of-information/foi-
factsheets/FOI_factsheet12_your-rights_online_July2012.pdf). You can file your application online at
https://forms.business.gov.au/aba/oaic/foi-review-/ or download a complaint form from the OAIC’s
websit
e www.oaic.gov.au
Complaints
You can complain to the Australian Information Commissioner about action taken by the Fair Work
Ombudsman in relation to your freedom of information request. Your complaint must be in writing and
it is the Information Commissioner’s preference that an online complaint form be completed. The form
can be found at
https://forms.business.gov.au/aba/landing.htm?formCode=ICCA_1. Alternatively, you
can send a letter to the Office of the Australian Information Commissioner, GPO Box 5218, Sydney
NSW 2001 or send an email t
o xxxxxxxxx@xxxx.xxx.xx.
www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232
Document Outline