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5 November 2021
Mr Jimmy Parel
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Parel
Freedom of Information
FOI Reference number: 21/22 - 14
I refer to your emails to the Fair Work Commission (
Commission) on 6 and 14 October
2021, as well as a telephone conversation between yourself and my colleague Jessica
Gelsumini on 27 October 2021.
On the basis of these emails and your conversation with Ms Gelsumini, I understand
you have requested the following documents under the
Freedom of Information Act
1982 (
FOI Act):
Documents containing the salaries of Australian Nursing and Midwifery
Federation (ANMF) Victorian Branch employees for the last 10 years.
The 30-day statutory time period for processing your request commenced on the day
after your request was received.
1 The due date for a decision on your request is
5
November 2021.
I am authorised to make a decision in relation to your request.
2
Documents located
Commission staff searched the Commission’s
agreements database on our website
using the following search criteria: ‘“ANMF” and “Vic Branch”’, ‘“ANMF” and
“Victorian Branch”’, ‘“ANMF (Victoria Branch)’”, ‘“ANF” and “Vic Branch”’, ‘“ANF” and
“Victorian Branch”’ and ‘“ANF (Victoria Branch)’”.
3
Staff located two published Commission decisions (both
enclosed) which approve
the following enterprise agreements:
1.
ANMF (Victorian Branch) (Staff and Council) Enterprise Agreement 2020-
2024 (15 September 2021) (
2020 Agreement)
2.
ANMF (Victorian Branch) (Staff and Council) Enterprise Agreement 2016-
2020 (11 May 2017) (
2016 Agreement).
1
Freedom of Information Act 1982 (Cth) s.15(5).
2
Freedom of Information Act 1982 (Cth) s.23.
3 I understand that in or around 2013, the Australian Nursing Federation was re-named the Australian Nursing
and Midwifery Federation.
I note that clause 3 of both the 2016 and 2020 Agreements state that the
Agreements cover ‘all Employees as defined in subclause 8.6’. Subclause 8.6
defines ‘Employee’ as ‘all non-elected Employees’ of the ANMF Victorian branch.
This means that the 2016 and 2020 Agreements may not cover all employees of the
ANMF Victorian branch.
Searches were also conducted of the Commission’s case management system for
any documents (in addition to the Agreements listed above) that fit within the scope
of your request. The fol owing documents were located:
In respect of the 2016 Agreement
1. Form F17 - Employer’s statutory declaration in support of an application for
approval of an enterprise agreement (other than a greenfields agreement)
dated 20 April 2017.
2. Item 3.3 of Form F17 – Translating classifications
3. Signed ANMF (Victorian Branch) (Employees and Council) Agreement 2016-
2020
4. Single Enterprise Agreement Legislative Checklist prepared on 24 April 2017
(
2017 Single Enterprise Agreement Checklist).
5. Revised Form F17 Employer’s statutory declaration in support of an
application for approval of an enterprise agreement (other than a greenfields
agreement) dated 5 May 2017.
6. Signed ANMF (Victorian Branch) (Employees and Council) Agreement 2016-
2020 (with noted inclusion of model flexibility term)
7. Commission decision, including approved enterprise agreement, that was
sent to the parties in the matter on 11 May 2017.
In respect of the 2020 Agreement
1. Form F17 Employer’s declaration in support of an application for approval of
an enterprise agreement (other than a greenfields agreement) dated 2
September 2021.
2. Signed ANMF (Victorian Branch) (Employees and Council) Agreement 2020-
2024.
3. Single Enterprise Agreement Legislative Checklist prepared in relation to the
2020 Agreement (
2021 Single Enterprise Agreement Checklist).
4. Final signed ANMF (Victorian Branch) (Employees and Council) Agreement
2020-2024.
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5. Commission decision, including approved enterprise agreement, that was
sent to the parties in the matter on 15 September 2021.
Commission staff also conducted searches of the Commission’s case management
system to determine whether the Australian Nursing Federation made any
applications for approval of an enterprise agreement that related to employees in
Victoria prior to the 2016 Agreement, but this search returned no results.
The Commission’s Agreements Team and Registered Organisations Division also
confirmed that they are not in possession of any documents that fall within the scope
of your request.
Decision
I have decided to:
• grant access to edited copies of some of the documents listed above, and
• grant access to the remaining documents listed above.
The documents are
enclosed.
The reasons for my decision are below.
Information considered
In reaching my decision I have taken the following material into account:
• the terms of your request;
• the FOI Act;
• relevant case law; and
• the Australian Information Commissioner’s FOI Guidelines issued under s.93
of the FOI Act.
Reasons for decision
Section 11A of the FOI Act relevantly provides:
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an
agency…for access to:
(i) a document of the agency…
…
Mandatory access – general rule
(3) The agency…must give the person access to the document in accordance with
this Act, subject to this section.
3
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Exemptions and conditional exemptions
(4) The agency…is not required by this Act to give the person access to the document
at a particular time if, at that time, the document is an exempt document.
…
(5) The agency…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.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document
would, on balance, be contrary to the public interest (see section 31B (exempt
documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access
to the document.
…
2017 Single Enterprise Agreement Checklist
Section 47C of the FOI Act relevantly states:
(1) A document is conditionally exempt if its disclosure…would disclose matter
(
deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation
that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of:
(a) an agency…
…
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
…
(3) This section does not apply to any of the following:
(a) reports…of scientific or technical experts…
(b) reports of a body or organisation, prescribed by the regulations…
(c) the record of, or a formal statement of the reasons for, a final decision
given in the exercise of a power or of an adjudicative function.
…
The 2017 Single Enterprise Agreement Checklist contains the opinions of the staff
member who prepared the document, regarding the ANMF’s application for approval
of an enterprise agreement. It is not a record of a final decision given by the
Commission ‘in the exercise of a power or of an adjudicative function’ within the
meaning of s.47C(3)(c).
The document was prepared for consideration by the Commission Member who was
handling the ANMF’s application. It therefore contains ‘deliberative matter’ within the
meaning of s 47C(1).
4
4 See also
Robert Leonard and Commonwealth Ombudsman (No 1) [2014] AICmr 134, paragraphs [13]-[14] and
‘
VT’ and Commonwealth Ombudsman [2020] AICmr 51, paragraphs [68], [70] and [72].
4
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Under the
Fair Work Act 2009 (Cth), the functions of the Commission include
handling applications for approval of enterprise agreements.
5 The 2017 Single
Enterprise Agreement Checklist was therefore prepared ‘for the purposes of, the
deliberative processes involved in the functions’ of the Commission, within the
meaning of s 47C(1).
6
I consider that the 2017 Single Enterprise Agreement Checklist
is conditionally
exempt under s.47C.
2021 Single Enterprise Agreement Checklist
For the reasons explained above in relation to the 2017 Single Enterprise Agreement
Checklist, I consider that the 2021 Single Enterprise Agreement Checklist is also
conditionally exempt under s.47C.
Public Interest Test
As I have concluded that the 2017 and 2021 Single Enterprise Agreement Checklists
are conditionally exempt, I am required to apply the public interest test under
s.11A(5) of the FOI Act to determine whether to give you access to those
documents.
Section 11B(3) of the FOI Act states:
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.
I consider the factors weighing in favour of disclosure are that disclosure could
promote the objects of the FOI Act.
I consider the factors weighing against disclosure are that disclosure could expose
for public comment documents that were prepared for internal consultation and
consideration.
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Taking the above into account, I consider that the public interest is weighed more
heavily in favour of disclosure of the 2017 and 2021 Single Enterprise Agreement
Checklists.
5
Fair Work Act 2009 (Cth), Part 2-4.
6 See
Robert Leonard and Commonwealth Ombudsman (No 1) [2014] AICmr 134, paragraphs [19]-[20] and ‘
VT’
and Commonwealth Ombudsman [2020] AICmr 51, paragraph [71].
7
Timmins and Attorney-General’s Department [2015] AICmr 32 [27].
5
Remaining documents
I do not consider that any exemptions under the FOI Act apply to the remaining
documents and have therefore decided to grant you access to those documents (or
edited copies of those documents, as explained below).
Redacting documents
Section 22 of the FOI Act relevantly states:
(1) This section applies if:
(a) an agency…decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access;
and
(b) it is possible for the agency…to prepare a copy (an
edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under
section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency…to prepare the edited copy,
having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant)
that the applicant would decline access to the edited copy.
…
(2) The agency…must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
…
(3) The agency…must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is exempt
matter because of a specified provision of this Act.
…
The following documents contain the signatures, residential addresses and mobile
numbers of some individuals:
• Form F17 - Employer’s statutory declaration in support of an application for
approval of an enterprise agreement (other than a greenfields agreement)
dated 20 April 2017.
• Revised Form F17 Employer’s statutory declaration in support of an
application for approval of an enterprise agreement (other than a greenfields
agreement) dated 5 May 2017.
I consider that the signatures, residential addresses and mobile numbers would
reasonably be regarded as irrelevant to your request and I have redacted these
details from the above documents in accordance with s.22.
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Registered Organisations Commission
T
he Registered Organisations Commission (
ROC) may also have documents that
fall within the scope of your request. The ROC is the independent regulator of
Unions and Employer Associations in Australia. The ROC monitors registered
organisations and their compliance with legal requirements. It also publishes records
of information, which can be accessed here:
Find a registered organisation -
Registered Organisations Commission (roc.gov.au).
T
he ANMF’s profile on the ROC’s website includes officer and related party
disclosure statements and financial reports which may include some information
relevant to your request. For example, t
he 2021 ANMF - Victorian Branch’s Officer
and related party disclosure statement includes information related to the salaries of
the Branch Assistant Secretaries.
The Fair Work Commission and the ROC are separate organisations. If you have
any questions about material published on the ROC’s website, you wil need to
contact the ROC directly to discuss.
If you wish, you can also make an FOI request to the ROC. Further information
about how to make an FOI request to the ROC is available here:
Freedom of
information | Registered Organisations Commission (roc.gov.au)
Review rights
Internal review
If you disagree with my decision, you have the right to apply for an internal review by
the Commission. If you want to apply to the Commission for internal review, you
should do so within 30 days after you are notified of my decision. The internal review
wil be conducted by an officer other than myself, and the Commission must make a
review decision within 30 days.
Applications for internal review should be sent to:
Murray Furlong
General Manager
Fair Work Commission
GPO BOX 1994
Melbourne VIC 3001
Email:
xxxxxxxxxxxxxx@xxx.xxx.xx
Review by the Information Commissioner
Under s.54L of the FOI Act, you can apply to the Information Commissioner for
review of my decision. If you want to apply to the Information Commissioner for
review, you must do so in writing within 60 days after you are notified of my decision.
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More information is available on the Information Commissioner website at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
How to make a complaint
You can make a complaint to the Information Commissioner about action taken by
the Commission in relation to your FOI request.
Enquires to the Information Commissioner can be directed to:
Phone: 1300 363 992 (local call charge)
For more information, visit:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/make-an-foi-complaint.
If you have any queries about this matter, please contact me on (03) 8656 4544 or
via email at
xxx@xxx.xxx.xx.
Yours sincerely
Alexandra Swan
Senior Legal Advisor
Phone: (03) 8656 4544
Email:
xxx@xxx.xxx.xx
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