Dissemination by the FWBC of false information - ethics and accountability in the Commonwealth Public Sector

JS made this Freedom of Information request to Department of Jobs and Small Business

Department of Jobs and Small Business did not have the information requested.

From: JS

Delivered

Dear Department of Employment,

The Department of Employment supports and advises the Employment portfolio Ministers in its responsibility as the primary source of advice on policy development and the performance of the portfolio’s regulatory systems. The Minister expects that the department and Fair Work Building and Construction maintain a collaborative working relationship to communicate the objectives of the deregulation agenda and to report progress on regulatory reforms delivered by the Employment portfolio to the Government.

Media articles and a Federal Court report indicate that from 1 January 2013 to 28 July 2016 false information was disseminated by Fair Work Building and Construction (now ABCC), and FWBC was aware the information was false. Federal Court proceedings under the Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016 and on 18 October 2016 the Commonwealth of Australia was joined to the case. On 8 Sept 2017 the applicant and the Commonwealth consented to the proceedings against the Commonwealth being dismissed. The case against the Director was subject of a Federal Court judgement on 29 Sept 2017. It appears that the Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women first became aware of the behaviour of the Director of FWBC in October 2016.

The Public Service Act 1999 establishes a statutory Code of Conduct that binds all APS employees and agency heads to defined behavioural standards. It has been said that the scheme that currently applies in the Australian Public Service is robust and effective. Clause 1.3(f) of the Australian Public Service Commissioner’s Directions 2013 require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.

I seek access under FOI to documents in the possession of the Agency relating to any assessment or consideration - conducted in the period 1 December 2013 to 12 September 2017 – that the behaviour of the Director of the Fair Work Building Industry Inspectorate involved a potential breach of the Australian Public Service Code of Conduct.

Yours faithfully,

JS

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From: Employment - FOI

UNCLASSIFIED

Dear applicant

 

Transfer of your freedom of information request to the Australian Building
and Construction Commission (ABCC)

We refer to your correspondence (below) received by the Department of
Employment (the Department) via the Right To Know website on 7 October
2017, in which you seek access under the Freedom of Information Act 1982
(FOI Act) to the following:

 

'...documents in the possession of the Agency relating to any assessment
or consideration – conducted in the period 1 December 2013 to 12 September
2017 – that the behaviour of the Director of the Fair Work Building
Industry Inspectorate involved a potential breach of the Australian Public
Service Code of Conduct.’

 

Following consultation between the Department and the ABCC, we are
satisfied that the subject-matter of the documents being sought is more
closely related with the functions of the ABCC than those of the
Department.

 

Accordingly, we are writing to inform you that your request has been
transferred to the ABCC under section 16 of the FOI Act. The ABCC
has agreed to accept the transfer and will contact you shortly in relation
to this matter.

 

Should you have any further queries about this matter, please do not
hesitate to contact us via email at [1][Department of Employment request email].

 

Kind regards

 

Information Law Team

Corporate Legal

Australian Government Department of Employment

Phone (02) 6240 7310

[2][email address]

[3]www.employment.gov.au

 

This transmission is intended only for the use of the addressee and may
contain confidential or legally privileged information. If you are not the
intended recipient, you are notified that any use or dissemination of this
communication is strictly prohibited. If you have received this
transmission in error, please notify us immediately by telephone and
delete copies of this transmission together with any attachments.

 

 

 

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From: JS

Delivered

Dear Information Law Team,

Thank you for telling me that my FOI request has been transferred to the ABCC under section 16 of the FOI Act. Because the email emanates from Information Law Team I am unsure who is satisfied when you say “we are satisfied….”. Is it the Department and ABCC collectively or simply the Department (Information Law Team) itself?

OAIC Guidelines provide (in part) [An agency or minister who receives a request may transfer the request, or part of the request, to another agency or minister with their agreement if the subject matter of the document is more closely connected with the functions of another agency or minister (s 16(1)). It is implicit in those requirements that a request cannot be transferred solely as a matter of administrative convenience, or because another agency or minister produced the document requested or also has a copy of it. Equally, before a decision is made to transfer a request an agency or minister should take whatever reasonable steps are necessary to ascertain whether they have the documents that may meet the description in the FOI request.] I assume those reasonable steps have been taken by the Department.

While “We” is satisfied that the subject-matter of the documents being sought is more closely related with the functions of the ABCC than those of the Department I note that ‘We” does not provide any basis for that satisfaction. In any event I do not agree that the subject-matter of the documents being sought is more closely related with the functions of the ABCC than those of the Department.

The Public Service Act 1999 establishes a statutory Code of Conduct that binds all APS employees and agency heads to defined behavioural standards. It has been said that the scheme that currently applies in the Australian Public Service is robust and effective. Clause 1.3(f) of the Australian Public Service Commissioner’s Directions 2013 require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code. The standards/obligations apply equally both to the Dept and the ABCC (formerly FWBC).

The subject-matter of the documents being sought is closely related to the standards and obligations imposed on the Department and its officials by the PSA Act 1999 and APSC Directions 2013 rather than more closely related functions of the ABCC. Both agencies would appear to have identical obligations. Consequently, I do not agree with the transfer and believe the Department should process the FOI request.

Yours sincerely,

JS

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From: Employment - FOI

UNCLASSIFIED
Dear applicant

We refer to your request to the Department of Employment (the Department) under the Freedom of Information Act 1982 (Cth) (FOI Act) of 7 October 2017 and your follow-up correspondence of 17 October 2017 (below).

Transfer of your FOI request

As mentioned in the Department's correspondence of 16 October 2017, your request was transferred to the Australian Building and Construction Commission (ABCC) under section 16 of the FOI Act.

Under paragraph 16(1)(b) of the FOI Act, an agency which receives an FOI request for access to a document may transfer that request to another agency (with the agreement of that agency) if the subject matter of the document is more closely connected with the functions of that agency.

Upon receiving your request, the Department consulted with the ABCC, which agreed that the subject matter of the documents you requested were more closely connected with its own functions. It is on the basis of this consultation that the Department was satisfied that a transfer was appropriate and permitted under the FOI Act.

Searches for documents

Notwithstanding the above, the relevant areas of the Department have conducted preliminary searches of their records, and have advised that they do not hold any documents within the scope of your request.

Kind regards

Information Law Team
Corporate Legal
Australian Government Department of Employment
Phone (02) 6240 7310
[email address]
www.employment.gov.au

This transmission is intended only for the use of the addressee and may contain confidential or legally privileged information. If you are not the intended recipient, you are notified that any use or dissemination of this communication is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone and delete copies of this transmission together with any attachments.

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From: JS

Delivered

Dear Employment - FOI,

Thank you.

Yours sincerely,

JS

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Things to do with this request

Anyone:
Department of Jobs and Small Business only: