11 April 2017
Mr Robert Hudson
President, ITPA
Sent via em
ail: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1617/57.05
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:
1) Descriptions of the roles that were filled;
2) The salary/wage brackets that were / are being paid to 457 visa holders in these roles;
3) 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
Thank you for your email of 11 April 2017 – I note that you have changed the time frame from the last 18 months to 1 July
2015 to the present.
Unfortunately, it is still not clear as to the information that you are seeking. In that regard, please note that
nbn is not a
Commonwealth Government Department. In addition,
nbn’s employees are not members of the Australian Public Service
(
APS). As such,
nbn staff members are not classified within APS or similar salary bands, to which you appear to be referring.
In particular,
nbn is a Government Business Entity and operates as a commercial entity and our staff members’ salaries are
generally determined by individual negotiations and contractual regimes. If you could please confirm that you are seeking a
list of individual (unnamed) staff members’ salaries and their job titles, previously referred to as the “description of the roles
that were filled”.
In addition, you have requested the following:
Documentation around this market testing - job ads which were produced, documentation of where, when and for
how long the ads were run, and any documentation (with personally identifiable information redacted if necessary)
around the response/s that nbn received to this market testing.
You also seem to be requesting individual job seekers’ details and copies of their job applications with personal information
redacted. Please confirm if that it is the case.
If you are seeking those sorts of details, i.e. individual employees’ salaries or details of individual job applications, it is likely
that this information would relate to
nbn’s commercial activities and/or individual’s personal and business affairs. As
indicated previously,
nbn has made previous decisions that individual salaries do relate to our commercial activities, noting
that release of these sorts of details would effectively set a benchmark or floor at which
nbn would be required to negotiate
similar salaries, thereby adversely impacting
nbn’s ability to obtain competitive rates for its staff. I refer you to the paragraph
below, concerning
nbn’s carve out from the application of the FOI Act.
While I note that you have requested salary information to be anonymised, I also note that the potential publication of job
titles could be triangulated with staff members’ social media profiles and other publicly accessible information. This would
mean salary data could potentially be reverse engineered, along with details of job applicants – either successful or
otherwise. It would be incumbent upon me to undertake third party consultations under the FOI Act in that regard.
I am not required to provide information that could reveal potentially exempt information, such as the number or the
existence of 457 visa holders employed by
nbn. However, I am of the opinion it would be a substantial and unreasonable
diversion of
nbn’s resources to undertake the required third party consultations with any 457 visa holders, noting that
nbn has already made a determination regarding individual salaries, i.e. that they relate to
nbn’s commercial activities. I would
ask you to consider any further clarification of this FOI request in that context.
Request Consultation Process I also refer you to section 24 of the FOI Act, which requires
nbn to undertake a request consultation process before issuing a
notice to refuse access. Before issuing a refusal notice,
section 24AB of the FOI Act requires
nbn to provide applicants with
written notice stating their intention to refuse access and to initiate a request consultation process. Accordingly, I request
that you review the scope of your FOI request and notify me by 25 April 2017 whether you wish to:
withdraw the request, or
make revised request, or
not revise the request.
Our team would be happy to assist you in refining the scope of your request. In that regard, I would invite you to call me on
the number below or ring my colleague, Kate Friedrich on (02) 9927 4118. If you have not notified me by the above-
mentioned date,
nbn will consider that this application has been withdrawn as per section 24AB(6) of the FOI Act. In
accordance with section 24AB(8) of the FOI Act, the time taken to consult with you regarding the scope of a request is not
taken into account when calculating the 30-day statutory time limit for processing FOI applications.
nbn’s Commercial Activities Exemption
I again 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 provide
s 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
