GPO Box 9887
Melbourne VIC 3001
16 June 2021
Mr Phillip Sweeney
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Reference number: IA-1407
Notice of Decision – Freedom of Information request
Dear Mr Sweeney
I refer to your request submitted to the Fair Work Ombudsman (
FWO) on 15 April 2021 under the
Freedom
of Information Act 1982 (
FOI Act).
This letter sets out my decision in relation to the documents relevant to your request which I am
authorised to make under section 23 of the FOI Act.
Scope of Request
“The National Australia Bank has admitted to underpaying some of its Australian staff.
The documents I seek are copies of correspondence from the National Australia Bank to the Fair
Work Ombudsman advising of such underpayments.”
Timeframe for processing the request
The statutory processing period for processing Freedom of Information requests under the FOI Act is 30
days. The original decision date for processing this request was 17 May 2021.
On 12 May 2021 the FWO notified you of a requirement to consult with third parties in accordance with
section 27 of the FOI Act. This consultation requirement extended the processing timeframe by a further
30 days in accordance with s 15(6) of the FOI Act. The due date for a notice of decision on access is 16
June 2021.
Third party consultation
The FWO consulted with one third-party organisation under section 27 of the FOI Act on the basis that
they may reasonably wish to make a contention that relevant business information should be exempt.
Matters taken into account in making this decision on access
In making my decision, I took the following matters into account:
• The scope of the request
• The documents
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www.fairwork.gov.au | Fair Work Infoline: 13 13 94 | ABN: 43 884 188 232
• The FOI Act
• The Australian Information Commissioner’s FOI Guidelines
• Internal consultation
• Consultation with relevant third parties
Searches
I arranged for searches of FWO records to identify any documents falling within the scope of the FOI
request. Records searched included those held by Compliance and Enforcement Teams. The search
identified one relevant document with attachments (12 pages in total).
DECISION
I have determined that some of the documents are conditionally exempt under section 47E of the FOI Act.
The relevant documents are outlined in the schedule at
Attachment A to this letter. Attachment A
contains my decision in relation to each document. The schedule lists references to exemptions relied
upon under the FOI Act, and also indicates where irrelevant information has been redacted from the
document under section 22 of the FOI Act. Detailed reasons for my decision follow.
Exemptions applied and reasons for decision
Section 47E – Public interest conditional exemptions - certain operations of agencies
Section 47E(d) of the FOI Act conditionally exempts a document if disclosure would, or could, reasonably
be expected to have a substantial adverse effect on the proper and efficient conduct of agency operations.
I have decided that certain information and correspondence between the FWO and NAB which has not
already been released by NAB to impacted employees is conditionally exempt information under s47E(d).
The information and correspondence contain confidential communications between NAB and FWO
relating to non-compliance under the
Fair Work Act 2009 (
FW Act).
The material is exempt on the basis that it is important for the efficient and effective operations of the
FWO to be able to conduct discussions and negotiations with employers about compliance with the FW
Act in confidence. Disclosure under the FOI Act could reduce the level of trust and frankness between
employers and the FWO if the FWO could not maintain reasonably held expectations of confidentiality.
NAB communicated with FWO with the expectation that it would remain confidential and would be used
for the sole purpose of the investigation. A reduction in the willingness of employers in the future to
participate in an open and frank way could undermine less formal processes and result in less efficient
and effective investigation and resolution of complaints.
“Substantial adverse effect”
I consider that if employers cannot rely on the FWO to protect their communications from public
disclosure, it would discourage them in the future from making self-disclosures and cooperating with the
FWO. The FWO relies on employers feeling confident to make self-disclosures to the FWO of any potential
or actual breaches of Australian workplace laws.
It is more efficient and less administratively burdensome not to have to engage more coercive regulatory
powers and for information to be provided voluntarily by employers as part of a self-disclosure process.
The power to require persons to produce records or documents is not a substitute for information
voluntarily provided because a notice to produce is necessarily confined to a written response providing
existing documents. To change the way FWO operates in this way would not provide access to the same
information and would substantially and adversely impact upon the functions of FWO.
Any reduction in cooperation could hinder or limit the ability of the FWO to investigate allegations of non-
compliance and to take appropriate action to remedy breaches. I consider that the reduction in
cooperation caused by disclosure of these types of documents would cause a substantial reduction in
cooperation and, as a result, the proper and efficient conduct of the agency.
“Would or could reasonably be expected to”
Paragraph 5.15 of the FOI Guidelines provides that, there must, based on reasonable grounds, be at least
a real, significant or material possibility in order to satisfy the test for ‘would or could reasonably be
expected to’. I consider that the prejudice to the conduct of future investigations and achievement of
regulatory outcomes which could arise from employers no longer voluntarily self-dislosing their handling
of allegations of non-compliance with workplace laws could be substantial. I consider the risk of adverse
effect to be not insignificant and more than a mere possiblity.
For these reasons, I have decided that the relevant information is conditionally exempt under s 47E(d) of
the FOI Act. Nonetheless, I must give access to the documents unless, in the circumstances, access at this
time would on balance be contrary to the public interest (subsection 11A(5) of the FOI Act).
Public interest test
Section 11A(5) of the FOI Act requires the agency to 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 working out whether access to the document
would, on balance, be contrary to the public interest the FWO must have regard to the factors favouring
release and factors which are irrelevant as listed at section 11B of the FOI Act, and the FOI Guidelines
issued by the Information Commissioner.
The FWO accepts there is a general public interest in disclosure of information held by government and
the disclosure of the documents would broadly promote the objects of the FOI Act by informing the
community about the actions taken by FWO when managing large corporate disclosures of non-
compliance with the FW Act.
I have determined that the likelihood of damage that would arise to the FWO’s ability to effectively and
efficiently carry out its legislative mandate as described in the FW Act
outweighs any benefit that would
attach to the release of these documents. The expectation of confidentiality that attaches to the
voluntary self-disclosure of information by employers to FWO is central to the proper and efficient
conduct of the operations of FWO. Accordingly, I have decided that the release of documents is
conditionally exempt in part under s 47E(d) of the FOI Act and would be contrary to the public interest.
Section 22 – Irrelevant information
On 16 April 2021 you agreed to the removal from the documents of information which might be
described as irrelevant. This information has been redacted from the documents under section 22 of the
FOI Act.
I can confirm that the material that has been redacted as irrelevant is limited to the following
• information that is publicly available,
• duplicate documents, including duplicate emails,
• names of FWO staff members, direct telephone numbers, email addresses and signatures of
FWO staff (other than Senior Executives), and
• personal information relating to third parties.
Access to the documents
An affected third party is entitled to seek review of my decision to release the edited documents to you.
As a result, I am unable to give you access to the edited documents for at least 30 days from the day I
notify them of my decision.
In accordance with section 27(7) of the FOI Act, the documents will be released to you after the
opportunities the third party has to seek review of the decision have run out, and the decision still stands
or is confirmed.
Website Publication
Subject to certain exceptions, section 11C of the FOI Act requires agencies to publish any information
released in response to freedom of information requests on the online Disclosure Log. Section 11C
contains some exceptions to this general requirement.
As the documents are exempt in part, I do not propose to release any material via the Fair Work
Ombudsman’s Disclosure Log.
Review rights
I have attached a document setting out your rights of review of this decision at
Attachment B.
Contact details
For further information, please email
xxx@xxx.xxx.xx.
Yours sincerely
Nicola Forbes
Director Information Governance
Fair Work Ombudsman
Attachment A – Schedule of Documents
Document
Pages
Date
Description
Decision
Applicable
Number
Provision (s)
1
001-012 20.12.2019
Email thread and attachments: Correspondence
Release in
s.22, s.47E(d)
National Australia Bank and the Fair Work
part
Ombudsman
Attachment B
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 review 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:
Em
ail: xxx@xxx.xxx.xx
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 30 days after the day you were given notice of this decision and
the decision relates to an access grant decision (s 54M(2)(a))1 or 60 days where the decision relates to an ‘access
refusal decision’ (s 54L(s)(a)):2
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 relevant information issued by the Office of the Australian Information
Commissioner. You can file your application online or download a review form from the OAIC’s website via
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 is completed. Alternatively, you can send a letter to the
Office of the Australian Information Commissioner, GPO Box 5218, Sydney NSW 2001 or send an email to
xxxxxxxxx@xxxx.xxx.
1 An
“access grant decision” is defined in s 53B of the FOI Act to mean a decision to grant access to a document
where there is a requirement to consult with a third party under ss 26A, 27 or 27A.
2 An
“access refusal decision” is defined in s 53A of the FOI Act and Part 10 of the FOI Guidelines at
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-10-review-by-the-information-
commissioner/
