Application of Section 40(d) FOI Act

Relevant considerations

1. Is there a reasonable expectation that disclosing the matter could have a substantial adverse effect on the conduct of industrial relations by an agency?

a) Conduct of industrial relations

In Murphy¹ the Information Commissioner adopted the following definitions of 'conduct' and 'industrial relations' from the Collins English Dictionary:²

Conduct: the way of managing [a business, affair, etc], handling.

Industrial Relations: those aspects of collecting relations between management and workers' representatives which are normally covered by collective bargaining.

The Information Commissioner was satisfied that 'industrial relations' means:³

…those aspects of the relations between an agency and its employees which may appropriately be, or have become, the subject of dealings between an agency and the representatives of its employees, or an individual employee, under the system of industrial law which governs those relations.

b) Substantial adverse effect

The Information Commissioner considered that the word 'substantial' means 'grave, weighty, significant or serious'⁴ and that the 'onus of establishing a "substantial adverse effect" is a heavy one'.⁵

The provision does not involve a substantial adverse effect on industrial relations but rather a substantial adverse effect on the conduct of industrial relations. Therefore, an expectation that disclosure could lead to industrial action does not equate to an expectation disclosure could have a substantial adverse effect on the conduct of industrial relations.⁶

The Information Commissioner has previously considered that the disclosing documents revealing the extent, or any disagreement, as to how far an agency would be prepared to go in meeting union demands could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the agency, even if the immediate dispute has been resolved.⁷

c) Is the expectation reasonable?

See 'Could reasonably be expected to' Annotation.

2. Would disclosure, on balance, be in the public interest?

The Information Commissioner has recognised the following public interest factors may be relevant in considering the public interest in disclosing information that has satisfied the prima facie exemption in section 40(d):⁸

• the public interest favouring nondisclosure, in ensuring the government's ability to conduct industrial relations
• the public interest favouring disclosure, in ensuring that the agency had acted within its lawful authority and discharged its functions competently.

¹Murphy and Treasury Department (1995) 2 QAR 744.
²Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 161.
³Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 162, rejecting the definition of 'industrial relations' in Re McCarthy and Australian Telecommunications Commission (1987) 13 ALD 1.
⁴Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 95 referring to Re Cairns Port Authority and Department of Lands (Unreported, Queensland Information Commissioner, 11 August 1994) at paragraphs 147-150.
⁵Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 95 referring to Re Dyki and Federal Commissioner of Taxation (1990) 22 ALD 124 at paragraph 21.
⁶Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 164; Robino & Ors and Townsville District Health Service (Department of Health) (Unreported, Queensland Information Commissioner, 4 March 1998) at paragraph 59.
⁷Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 163 considering Re Heaney and Public Service Board [1984] AATA 168 (Heaney) at paragraph 32: 'Knowledge of the precise disagreements on the management side may well be of use in any future salaries dispute and may facilitate identification of potentially weak points in what may otherwise be quite properly presented as a united front'.
⁸Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 163 considering Re Heaney and Public Service Board [1984] AATA 168 at paragraph 33-34 which considered the equivalent exemption in the Freedom of Information Act 1982 (Cth).