10 April 2017
Mr Robert Hudson
President, ITPA
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1617/57.02
Dear Mr Hudson,
I am writing in relation to your request, made under the
Freedom of Information Act 1982 (
the FOI Act), seeking:
The number of workers holding 457 visas hired by NBN over the last 18 months. The details we are seeking are:
Descriptions of the roles that were filled;
The salary/wage brackets that were / are being paid to 457 visa holders in these roles;
The market testing that was done to prove that local workers were not available to fill the roles filled by workers
holding 457 visas.
Request to Clarify
Under the FOI Act, members of the public have a general right of access to specific documents, subject to certain
exemptions. Under section 15(2) of the FOI Act, a valid FOI request must provide such information concerning the requested
document/s as is reasonably necessary to enable nbn to identify it, among other things. Drawing from the current request
terms, it is unclear what specific document/s you are seeking.
nbn will not commence the processing of this request until you
have sufficiently clarified the terms of the application. In addition, the statutory time frame for completing this request will
not begin to run until that time. Please refer to my points below regarding the points that I consider unclear.
Role descriptions – The first dot point refers to “descriptions of the roles” and it is unclear as to what sort of
document you are seeking – a formal job description, a specific job title or other information?
Salary/wage brackets – The second dot point appears to be seeking different things, i.e. a specific salary versus
a wage bracket, which I presume may be a salary band? However, this is unclear. Please also note that
nbn has,
in the past, refused access to information concerning specific salaries and salary bands as relating to
nbn’s
commercial activities. This was in the context of executive salaries. In that regard, I refer you to the paragraph,
below, concerning
nbn’s commercial activities. Again, I have not yet begun to examine any relevant documents,
nor am I making a formal decision in that regard, it is likely that I would make similar findings regarding the
potential release of salaries and bands.
nbn’s Commercial Activities Exemption
I refer you to
nbn’s commercial activities exemption (
the CAE), as pe
r section 7(3A) and Part II of Schedule 2 of the FOI Act.
Please be aware that documents that relate to
nbn’s “commercial activities” are not subject to the operation of the FOI Act
and would likely be exempt from release. The following link summarises and provides
general background information
concerning
nbn’s commercial activities carve-out. That background document references two Australian Information
Commissioner reviews that considered
nbn’s CAE: the
Internode Decision (in January 2012) and th
e Battersby Decision (in
July 2013). While I am not making a formal decision, nor have I reviewed any documents, there is a possibility that
documents falling within the terms of this request may be subject to the CAE, among other exemptions from release.
FOI Processing Period and Charges
As outlined above, the statutory period for processing an FOI request is 30 days, subject to any suspension of the processing
period or extension of the time for deciding the application. Please also note that processing charges may be imposed in
relation to FOI requests. You will be advised of any charges in relation to your request. For reference,
nbn’s approach to
processing charges is outlined at the following hyperlink: Submission to the Office of the Australian Information
Commissione
r Charges Review. In particular,
nbn supports – and will generally apply – Recommendation 24 in the
Hawke
Review into FOI Legislation, (the Hawke Review) as a benchmark in reviewing FOI applications. For your reference,
Recommendation 24 suggests a 40-hour ceiling for all FOI processing charges.
Disclosure Log
nbn is required to publish documents provided to FOI applicants within 10 working days after release. The information you
seek may be published in full (as released to you) or with some additional redactions as per section 11C of the FOI Act. For
further information and other details, please visit ou
r Disclosure Log on
nbn’s website.
If you need to discuss your application, please feel free to contact the writer on (02) 8918 8596.
Yours faithfully,
David Mesman
General Counsel
FOI Privacy & Knowledge Management