WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2013 WAIRC 00253

DELIVERED : WEDNESDAY, 24 APRIL 2013

FILE NO. : M 70 OF 2012

CLAIMANT

AND

Peter Conran, Director General, Department of the Premier and Cabinet

RESPONDENT

Catchwords : Alleged breach of Clause 57 of the Public Service Award 1992 (the Award); breach alleged to be constituted by Respondent’s failure to provide access to ten files in which the Claimant is referred to in their respective titles; whether, for the purpose of Clause 57 of the Award, the ten files fall within the meaning of “personal and other file on an employee”; statutory construction.

Legislation : Industrial Relations Act 1979

  Freedom of Information Act 1992

Instruments : Public Service Award 1992

Cases referred to

in Judgment : Health Services Union of Western Australia (Union of Workers) v The Director General of Health as delegate of the Minister of Health in his Incorporated capacity under s. 7 of the Hospitals and Health Services Act 1927 (WA) 2012 WAIRC 01117

Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355

Result : Claim not made out 

Representation 

Claimant : Mr Glenn Ross in person

Respondent : Mr Ray Andretich, instructed by the State Solicitor of Western Australia appeared for the Respondent

REASONS FOR DECISION

Facts

1         Mr Glenn Ross is a public servant employed by the Department of the Premier and Cabinet (the Department).  The Respondent is the Director General of the Department.  Mr Ross and the Department are, and have been, in dispute about various issues relating to Mr Ross’ employment.  

2         Mr Ross’ employment is governed by the Public Service Award 1992 (the Award).

3         On 20 June 2012 Mr Ross requested that the Department give him access to ten files it holds, on which Mr Ross’ name appears in the title.  He asserts that Clause 57 – Keeping of and Access to Employment Records (Clause 57) of the Award requires the Department to give him access to those files. 

4         The requested files are:

a)      Personnel - Reviewing – Classification of ROSS Glenn – File no 58508

b)      Personnel – Reviewing – Classification of ROSS Glenn – File no 58508-2

c)      Personnel – Reporting – Public Service Appeal PSAB 17 of 2010 ROSS Glenn –            File no 62933

d)      Personnel – Reporting – Public Service Appeal PSAB 18 of 2010 ROSS Glenn –             File no 62934

e)      Personnel – Reporting – Public Service Appeal PSAB 21 of 2010 ROSS Glenn –            File no 63133

f)       Personnel – Reporting – Public Service Appeal PSAB 22 of 2010 ROSS Glenn –             File no 63134

g)      Personnel – Reporting – Public Service Appeal PSAB Discovery Documents –               File no 64069

h)      Personnel - Reporting – Public Service Appeal PSAB 2 Ross Glenn – File no. 61294

i)        Personnel – Reporting – Public Service Appeal PSAB 2 Ross Glenn – File no. 69082

j)        Personnel – Reporting – Management of Ross Glenn – File no 67229

5      On 28 June 2012 the Department advised Mr Ross that he would be granted access to his “personal files” but not the ten requested files.  The Department considered the ten requested files to be “organisational files” and therefore not subject to access.

The Claim

6         On 15 August 2012 Mr Ross lodged his Claim in this matter alleging that the Respondent has, by not giving him access to the requested files, contravened Clause 57 of the Award.   He seeks that the Respondent be penalised for his contravention and further ordered to give him access to the requested files.

7         The Respondent denies breaching Clause 57 of the Award and says that none of the requested files, for the purpose of the clause, come within a description of “personal or other file on an employee” maintained by the Department.

Clause 57 of the Award

8         Clause 57 of the Award provides:

“57. – KEEPING OF AND ACCESS TO EMPLOYMENT RECORDS

Employers must ensure that the keeping of employment records and access to employment records of officers is in accordance with (the) Industrial Relations Act 1979 Part 11 Division 2F Keeping of and access to employment records.

If the employer maintains a personal or other file on an employee subject to the employer’s convenience, the employee shall be entitled to examine all material maintained on that file.”

9         Relevantly, section 49D within Part 11 of Division 2F of the Industrial Relations Act 1979 (IR Act) provides:

“49D. Employer’s duties as to employment records

(1) Subsection (2) applies to an employee during any period when an industrial instrument applies to his or her employment.

(2) An employer must ensure that details are recorded of —

 (a) the employee’s name and, if the employee is under 21 years of age, his or her date of birth; and

 (b) any industrial instrument that applies; and

 (c) the date on which the employee commenced employment with the employer; and

 (d) for each day —

  (i) the time at which the employee started and finished work; and

  (ii) the period or periods for which the employee was paid; and

  (iii) details of work breaks including meal breaks;

    and

  (e) for each pay period —

  (i) the employee’s designation; and

           (ii)        the gross and net amounts paid to the employee under the

                        industrial instrument; and

  (iii) all deductions and the reasons for them;

    and

 (f) all leave taken by the employee, whether paid, partly paid or unpaid; and

 (g) the information necessary for the calculation of the entitlement to, and payment for long service leave under the Long Service Leave Act 1958, the Construction Industry Portable Paid Long Service Leave Act 1985 or the industrial instrument; and

(h) any other information in respect of the employee required under the industrial instrument to be recorded; and

(i) any information, not otherwise covered by this subsection, that is necessary to show that the remuneration and benefits received by the employee comply with the industrial instrument.

…”

10      Section 49E(1) of the IR Act requires an employer to give a relevant person access to such records upon request.  A relevant person includes an employee.

Determination

11      The dispute between the parties in this matter is to be determined upon the proper construction of Clause 57 of the Award.

12      Mr Ross argues that Clause 57 of the Award should be read to mean that if the Respondent maintains a personal or other file on, relating to or about him, then he is entitled to examine all material on that file. He argues that it matters not whether the file is titled “Personal File”, “Personnel File” or “Employee File”.

13      In addition, Mr Ross submits that Clause 57 of the Award is a beneficial clause for employees and that where reasonable doubt exists as to the interpretation of a term or word used in the clause, it should be interpreted in such a way that is consistent with the intent of the clause, which is to provide a benefit to employees.

14      The Respondent submits that the files to which Mr Ross seeks access are organisational files and therefore not within the scope of Clause 57 of the Award.

15      As was accepted in Health Services Union of Western Australia (Union of Workers) v The Director General of Health as delegate of the Minister of Health in his Incorporated capacity under s. 7 of the Hospitals and Health Services Act 1927 (WA) 2012 WAIRC 01117 the contemporary approach  to the construction of industrial instruments stems from Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 in which the following principles were enunciated:

“a)  Matters of purpose, general policy and context are to be taken into account in deriving the meaning of the provision from its text. The process of construction must always begin by examining the context of the provision that has been construed, even for statutory interpretation.

b)      Specifically with respect to industrial instruments, interpretation must begin with consideration of the words used in their natural meaning, but that meaning is not to be interpreted in a vacuum divorced from industrial realities: City of Wanneroo v Holmes (1989) 30 IR 362, 378; BHP Billiton Iron Ore Pty v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (WA Branch) [2006] WASCA 124 [19] – [23]. 

c)      Industrial instruments, given their nature and purpose (relevant to, in particular, common law contracts of employment) are to be accorded a beneficial interpretation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 [9] – [10].

d)      When construing an award or an industrial instrument provision a court or tribunal should proceed on the premise that the framers were likely of a practical mind and have regard to the long tradition of generous construction over a strictly literal approach: New South Wales Nurses’ Association v Ramsay Health Care Australia Pty Ltd [2009] FMCA 579 [177]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [57] (French J).

e)      As Madgwick J pointed out in Kucks v CSR Limited (1996) 66 IR 182, 184; a court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into an award. However, meanings which avoid inconvenience or injustice may reasonably be strained for.”

16      Clause 57 of the Award is entitled “Keeping of and Access to Employment Records”. The clause contains two obligations, which are:

a)      Employers must ensure that the keeping of employment records and access to employment records of officers is in accordance with (the) Industrial Relations Act 1979 Part 11 Division 2F Keeping of and access to employment records; and

b)   If the employer maintains a personal or other file on an employee subject to the employer’s convenience, the employee shall be entitled to examine all material maintained on that file.

17      Although the meaning of “employment records” is not defined in the Award its meaning is to be gleaned from section 49D(2) of the IR Act to which the first part of Clause 57 contextually refers.  There is support for that view in what was said by the Full Bench of the Western Australian Industrial Relations Commission in Health Services of Western Australia (Union of Workers) v The Director General of Health as delegate of the Minister of Health in his Incorporated capacity under s.7 of the Hospital and Health Services Act 1927 (WA) (supra).  The Full Bench said, at paragraph 44:

“…..the terms of an industrial instrument must be read within the historical context of an operative award and past industrial instruments that apply to the class of employees whose terms and conditions of employment are covered by the industrial instrument in question. However, added to that context should be a consideration of any relevant statutory scheme.”

18      Section 49D(2) sets out  what employment records may consist of.  They include:

• the employee’s details such as name and date of birth,
• any industrial instrument that applies to that employment,
• the date of commencement of employment,
• the start and finishing times of work,
• details of any breaks taken,
• details of the employee’s designation,
• amounts paid and all deductions made,
• all leave taken, whether paid, partly paid, or unpaid,
• all information necessary for the calculation of entitlements for long service leave,
• any other information required to be recorded by the Award, and
• any other information that is necessary to show that the remuneration and benefits received by the employee comply with the industrial instrument.

19      The second paragraph of Clause 57 of the Award must be read in the context of the requirement in the first paragraph to keep employment records of the type specified in section 49D(2) of the IR Act.  The two paragraphs are contextually linked. Their subject matter is the keeping of service records.  The second paragraph recognises that service records may conveniently be kept on a file designated as a “personal file” or on any other file however titled or designated.

20      A file is an orderly collection of papers for preservation and reference. To maintain such a file is consistent with the requirements of section 49D(2) of the IR Act.  It follows that a “personal file” or “other file” is a file in which some or all the information of the type required by section 49D(2) of the IR Act is kept in an orderly fashion for preservation and reference.

21      Given their context, I conclude that the words “personal or other file” in Clause 57 relate to a file or files that contain service information and no more. The words do not extend to or draw in organisational files. Not every file that contains material relating to an employee comes within that which is contemplated by the second paragraph of Clause 57.

22      Files which relate to the management of employees are ostensibly not files containing service information but rather organisational files. Organisational management files relating to employees may contain a myriad of non-service information, some of which might be privileged.  Most of the organisational files held by the Department “on, relating to or about” Mr Ross, which Mr Ross seeks, concern legal proceedings between them.  It is not the case that Clause 57 of the Award enables unfettered access to such files. If that were so Mr Ross would, as of right, have access to legal advice given to the Respondent with respect to legal proceedings in which he is a party.  Clause 57 is not created for that purpose.

23      Division 2F of Part 11 of the IR Act is clearly concerned with ensuring that the remuneration and benefits received by the employee comply with the applicable industrial instruments and the relevant legislation relating to an employee’s conditions of service. The second paragraph of Clause 57 must be construed in that context.

24      It follows that Clause 57 does not apply to the files to which Mr Ross seeks access. There has not been a breach of the Award by virtue the Respondent’s refusal to allow Mr Ross access to the ten nominated files. Mr Ross has failed to prove his claim.

25      Mr Ross’ opportunity to access the nominated files is not lost. Indeed, the object of open government is achieved through the provisions of the Freedom of Information Act 1992.  Mr Ross acknowledges that he can access the nominated files through that process. I accept that there may be some limitations placed on him in that regard.  However, if he has a complaint about that he can take that up with the Information Commissioner.

G. Cicchini

Industrial Magistrate