Employers who receive a notice to produce documents from the
Fair Work Ombudsman (FWO) and/or the Australian Building and
Construction Commission (ABCC) often simply hand over large numbers
of documents. Sometimes they deliver documents when they do not
need to do so.
But what are your rights and obligations?
The Fair Work Act 2009 (Cth) (FW Act)
permits an inspector to require a person, by notice, to produce a
record or document to the inspector within a specified period,
which must be at least 14 days.
The notice must be in writing and specify that the person is
required to produce the record or document at a specified place
within a specified period of at least 14 days.
A person who is served a notice to produce must comply with the
A person must not fail to comply with a notice to produce
without a reasonable excuse.
There are however important limitations on the power to produce
documents. In order to be valid, a notice to produce must expressly
identify the specific purpose for which the notice is issued. The
Fair Work instrument or statutory safety net requirement that is
the purpose for issuing the notice must be identified.
In other words, an inspector cannot target a person to produce
documents merely to see what might be dredged up.
Where the notice does not give the recipient an opportunity to
consider what specific purpose the notice refers to, the notice to
produce may be invalid.
The FW Act also allows for non-compliance with a notice to
produce where there is a 'reasonable excuse'. The term
'reasonable excuse' is not defined and there has been
limited case law, but this must naturally be considered in each
context. However, it is not a reasonable excuse to merely claim
that the documents may incriminate the employer.
Employers should also carefully consider the specific documents
and periods of time that the notice is addressing, as the employer
only needs to produce those documents and no others.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
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This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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