Requirement to produce documents 3 min read
The Federal Court has recently confirmed the ability of the Fair Work Ombudsman to require employers to hand over documents created before vulnerable worker legislation came into force.
- The Fair Work Ombudsman can use its legislative powers to require production of documents held by a franchisor even if the documents were created before September 2017.
- However, any notice to produce documents must be sufficiently clear and connected to the purpose of the notice.
As part of the efforts to prevent underpayments, legislation was amended in September 2017 to allow certain franchisors to be held liable for the sins of their franchisees.
In December 2019, the Fair Work Ombudsman (FWO) was investigating potential underpayments and record-keeping breaches of four franchisees. As part of this investigation, the FWO issued a notice to the franchisor requesting certain documents, including documents created before the relevant legislative changes in 2017.
The franchisor refused to produce the documents and argued that the notice was void for a number of reasons, including that it sought documents that could only have been created before the legislative changes.
The Federal Court rejected the franchisor's argument that the notice was void because it sought documents created before September 2017.1 This was because:
- there was nothing in the legislation that showed an intention by the parliament to prevent the FWO from seeking documents before this date; and
- there was no restriction on the court itself having regard to documents created before this date and, as a result, there was no reason to think the FWO would be restricted from doing the same (especially as the documents would inform the FWO's decision on whether to commence proceedings).