Construction Forestry Mining and Energy Union v Alfred [2016] FCA 591

Construction Forestry Mining and Energy Union v Alfred [2016] FCA 591

A notice to produce documents issued under s 712 of the Fair Work Act 2009 is invalid if it fails to identify, with sufficient specificity on its face, the 'matter' to which the production relates, particularly when read with s 706(1)(a) and s 59C of the Fair Work (Building Industry) Act 2012. The impugned notice did not describe any 'matter' at all, much less a building matter, and was too deficient in particularity to permit the recipient to ascertain the relationship between the documents sought and the statutory purpose, rendering the notice void and of no effect.

Parties
Applicant: Construction Forestry Mining and Energy Union; Respondent: Gregory Alfred
Jurisdiction
Australia
Judgment Date
06 May 2016
Procedural Posture
Application for Declaratory Relief / Final Judgment
Outcome
Declaration granted; notice to produce declared invalid and of no effect.
Legal Topics
Powers of Fair Work Building Inspector, Validity of Notice to Produce Under Fair Work Act, Statutory Interpretation, Requirements for Valid Notices
Industrial Law Employment Law Powers of Fair Work Building Inspector Validity of Notice to Produce Under Fair Work Act Statutory Interpretation Requirements for Valid Notices

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Parties

Construction Forestry Mining and Energy Union

Applicant

Gregory Alfred

Respondent

Procedural Posture

Application for Declaratory Relief / Final Judgment

Legal Issues

  1. 1 Whether the Notice to Produce was valid under s 712 of the Fair Work Act 2009
  2. 2 Whether the notice sufficiently identified the subject matter and documents sought
  3. 3 Whether the notice related to a 'building matter' under the Fair Work (Building Industry) Act 2012

Ratio Decidendi

A notice to produce documents issued under s 712 of the Fair Work Act 2009 is invalid if it fails to identify, with sufficient specificity on its face, the 'matter' to which the production relates, particularly when read with s 706(1)(a) and s 59C of the Fair Work (Building Industry) Act 2012. The impugned notice did not describe any 'matter' at all, much less a building matter, and was too deficient in particularity to permit the recipient to ascertain the relationship between the documents sought and the statutory purpose, rendering the notice void and of no effect.

Court Disposition

Declaration granted; notice to produce declared invalid and of no effect.

Orders

  • The Notice to Produce Records or Documents purportedly issued pursuant to s 712 of the Fair Work Act 2009 (Cth) to the applicant on 11 March 2016 is invalid and of no effect.