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 notice.
  • 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.

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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 particular circumstances.