Federal Court of Australia

Hisense Australia Pty Ltd v Naskovski [2026] FCA 20

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant have leave to appeal, the appeal being heard instanter and allowed.

2.    Order 2 of the orders of the Federal Circuit and Family Court of Australia (Division 2) dated 7 August 2025 is set aside.

3.    There is no order as to the costs of the application for leave to appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BENNETT J:

1    This is an application for leave to appeal certain orders made in the matter of Naskovski v Hisense Australia Pty Ltd [2025] FedCFamC2G 943.  In short, the Applicant asserts the primary judge erred in finding an employment contract is a type of record required to be kept under reg 3.32 of the Fair Work Regulations 2009 (Cth) (the FW Regulations).  That finding had two obvious impacts, being:

(1)    The primary judge's subsequent conclusion that the Respondent's request for a copy of his employment contract was a request for an employee record within the meaning of reg 3.42 of the FW Regulations; and

(2)    The primary judge's conclusion that the Appellant contravened s 535(3) of the Fair Work Act 2009 (Cth) (the FW Act) and reg 3.42 of the FW Regulations.  

2    The Applicant argues that in concluding the contract of employment is a type of record required to be kept under reg 3.32 and s 535, and the consequences of those conclusions identified above, the primary judge fell into error.  

3    The Respondent filed a submitting notice and took no active part in the application for leave to appeal.  

4    Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), because the decision of the primary judge was interlocutory; it determined liability but not penalties.  The principles to be applied to determine the question of whether leave should be granted were set out in Décor Corporation v Dart Industries Inc [1991] FCA 844; 33 FCR 397.  They were summarised in Latitude Finance Australia v Australian Securities and Investments Commission [2025] FCAFC 124 (Latitude) at [19] as follows:

(a) An applicant must generally demonstrate that, first, the decision in question is attended with sufficient doubt to warrant its being reconsidered by the Full Court and, second, that substantial injustice would result if leave were refused, supposing the decision to be wrong.

(b) The two criteria are cumulative (that is, both must ordinarily be made out) and they are also interrelated. 

(c) As to the first criterion, an applicant does not have to demonstrate that the proposed grounds of appeal are strongly arguable, or that the proposed appeal will or is likely to succeed. The applicant need only demonstrate that there is sufficient doubt about the correctness of the decision to warrant appellate reconsideration. 

(d) As to the second criterion, an applicant is likely to suffer substantial injustice (if leave were to be refused supposing the decision to be wrong) if the decision has the practical effect of finally determining the rights of the parties, or determines “a substantive right”. 

5    Because the question of leave turns, in large part, on the merits of the appeal, and the appeal is confined to a discrete question of law, the application for leave was heard alongside the substantive appeal. I now turn to address the merits of the argument before dealing with the question of leave in the conclusion.

BACKGROUND

6    Mr Naskovski was a warranty claims officer who worked for Hisense Australia Pty Ltd (Hisense). He commenced proceedings alleging Hisense contravened s 340 of the FW Act by taking adverse action against him because of or for reasons including that he exercised one or more workplace rights.  He also alleged he was underpaid in his period of employment and that Hisense failed to make a copy of an employment record available for inspection upon request, in contravention of s 535 of the FW Act and reg 3.42 of the FW Regulations.  It is only this latter issue which arises for consideration in this application.  

STATUTORY FRAMEWORK

7    This appeal concerns the construction of s 535 of the FW Act.  The construction is to be approached on the basis of the text of the statute, considered in the context in which it appears (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14] (Kiefel CJ, Nettle and Gordon JJ)).  Context can be understood to include matters like the overall statutory framework, and the purpose that the legislation was enacted to serve (SZTAL at [14]). Regulations are to be construed according to ordinary principles of construction. That requires they be placed in their statutory context. In the case of regulations that includes the legislation under which they are enacted and with which they are required to be consistent (Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 280 CLR 515 at [14] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J agreeing on this point)).

8    Section 535 is included within Part 3-6 of the FW Act, being “Other rights and responsibilities”, and Division 3, which is concerned with employer obligations in relation to employee records and pay slips. It is s 535 which imposes the obligation upon employers to retain records. It provides:

535  Employer obligations in relation to employee records

(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(2) The records must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) include any information prescribed by the regulations.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(3) The regulations may provide for the inspection of those records.

Note:     If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

(4) An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(5) Subsection (4) does not apply if the record is not false or misleading in a material particular.

9    It may be observed that s 535 has a number of aspects. The employer must make certain records, and it must keep those records in relation to each employee for 7 years. The records that must be made and kept are “employee records of the kind prescribed by the regulations”. I initially understood there to be no statutory definition of “employee records”, however, counsel for Hisense drew my attention to such a provision in s 12 of the FW Act, arguing that it did not alter the analysis below, in effect because it did not impose an obligation to retain a specific document. I accept that submission. There is an obligation to keep employee records in the form required by the FW Regulations, which is specified in reg 3.31. It requires that it be in English, legible and able to be produced to an inspector.

10    Regulation 3.32 is expressed to be “[f]or subsection 535(1) of the Act” and it states “a kind of employee record that an employer must make and keep is a record that specifies” the matters set out in reg 3.32. Regulation 3.32 in turn provides as follows:

3.32  Records—content

For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

 (a) the employer’s name; and

 (b) the employee’s name; and

 (c) whether the employee’s employment is full-time or part-time; and

 (d) whether the employee’s employment is permanent, temporary or casual; and

 (e) the date on which the employee’s employment began; and

 (f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.

Note:     Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

11    Regulation 3.42 is a provision which operates upon a request made to access documents that are otherwise required to be retained. It provides as follows:

3.42  Records—inspection and copying of a record

(1) For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.

Note:     Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(2) The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.

Note:     Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:

(a) make the copy available at the premises within 3 business days after receiving the request; or

(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.

Note:     Subregulation (3) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.

 (a) make the copy available at the premises; or

 (b) post a copy of the employee record to the employee or former employee.

Note 1:    Subregulation (4) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

Note 2:     Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.

12    Mr Naskovski pleaded that he was entitled to his contract of employment based on the obligation in reg 3.42, understood in the context of reg 3.32. It is also relevant that the employer must correct a record that the employer is required to keep under the FW Act or the FW Regulations, as soon as they become aware that it contains an error (reg 3.44). Subject to that obligation (and the related obligation to make a notation of any change (reg 3.44(3)), an employer must not alter a record that they are required to keep.

13    Section 535 is a civil remedy provision, with the consequence that it should be “certain and its reach ascertainable by those who are subject to it” (Construction Forestry Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; 248 CLR 619 at [48] (Crennan, Kiefel, Bell, Gageler and Keane JJ); Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; 278 CLR 571 at [40] (Kiefel CJ, Gageler, Gleeson and Jagot JJ)). This is relevant to the construction of the obligation insofar as one can expect that obligations subject to civil penalty are to be construed without ambiguity or uncertainty.

14    Understood overall, the content of the obligation in reg 3.32, read in combination with s 535 of the FW Act, is to “make and keep” a record that includes within it the specified content. It does not import an obligation to keep that information in any particular form, save to the extent the form is required by reg 3.31, which concerns the language of the record, and the ability of the record to be “readily accessible to an inspector” and legible. In this context I turn to consider the proposed grounds of appeal.

THE FIRST PROPOSED GROUND

15    The first proposed ground of appeal is expressed as follows:

The primary Judge erred in finding that an employment contract is a type of record required to be kept under r 3.32 of the Fair Work Regulations 2009 (Cth) (the FW Regulations).

16    The first ground alleges that the primary judge erred in finding an employment contract is a type of record required to be kept under reg 3.32. In this respect, her Honour at [203] recorded the submission from Hisense that “there is no obligation to keep the records that are subject of [the requests] with the result that the allegation is “misconceived””. Her Honour said: “[t]he submission is not further explained and must be rejected”.

17    Her Honour went on to observe at [204] that:

At the very least, the contract of employment (the subject of each of the Employment Inquiries relied upon by Mr Naskovksi) would be a type of record comprehended by reg 3.32 of the Regulations …

18    Her Honour concluded at [205] that:

It is clear from the email sent by Ms Sun to Mr Naskovski on 6 October 2021 (referred to at [43] above and not disputed by Hisense) that Ms Sun (and therefore Hisense) was unable to locate Mr Naskovski's employment contract and could not, as a result, be said to have kept a record that conformed with reg 3.32 or have been in a position to copy or produce it for Mr Naskovski, following his repeated requests. I consider in these circumstances that Hisense has contravened s 535(3) and reg 3.42 of the Regulations.

19    It is clear that her Honour did not have the benefit of full legal argument on the issue as it has been put to this Court in the context of the present application for leave to appeal. Counsel for Hisense accepted the matter was not ventilated as clearly in the hearing below as it has been in this appeal. The lack of focus from the parties on the issue can be seen to have led to the matter now requiring ventilation in this appellate context. However, given it was raised below (however unclearly) and it has now been fully ventilated, it is appropriate to respond to the arguments as I apprehend them.

20    Regulation 3.32 is understood by reference to the content of the information, i.e. the obligation is to keep “a record” which has the information specified in reg 3.32. By contrast, a contract of employment is a document which records the terms of the employment relationship, and would generally be expected to contain the information required by reg 3.32, but the employer is free to keep the records in another form. Any obligation to maintain a contract of employment would be a different obligation to keep a specific document from a particular point in time (whether or not it included all of the information set out in reg 3.32). That obligation is distinct from an obligation imposed by s 535 of the FW Act.

21    There are examples within the FW Act of obligations to maintain particular written instruments for the purposes of s 535. They are all explicit, and include the obligation to keep “a copy of an agreement” for:

(1)    any agreement to average an employee's hours of work (reg 3.35);

(2)    any agreement between an employer and employee to cash out an accrued amount of leave (reg 3.36(2));

(3)    if an employer and employee agree in writing on an individual flexibility arrangement (reg 3.38).

22    Thus, the obligation to keep records imposed by s 535(1) is given content by the FW Regulations. The FW Regulations give that content in one of two ways:

(1)    by the general obligation to maintain certain records by reference to the information, in the sense identified in reg 3.32; or

(2)    by reference to specific documents identified with particularity.

23    The lack of any specific obligation to maintain a contract of employment tells strongly against its inclusion by implication, particularly in the context of a civil penalty provision where one is entitled to expect particularity or clarity in the identification of a relevant obligation.

24    The obligation imposed by s 535 could be satisfied by the production of a contract of employment (if it contained all the information required by the FW Regulations).

25    Her Honour fell into error by conflating the contract of employment with a record of employment that Hisense was obliged to keep pursuant to s 535 of the FW Act. That error was consequential in the circumstances.

26    In this case, the request for information was for the employment contract, KPIs, a job description and award classification. It is not clear whether the requests for KPIs, job description and award classification were said to also be requests for employee records within the meaning of s 535. Her Honour did not proceed on the basis that they were, and no notice of contention has been filed to suggest that they could or would be considered employee records. That appears appropriate as those documents do not appear to sit within the definition of employee records that I have outlined above – although it is not an issue that I am required to determine. Likewise no notice of contention was filed to assert that the request was for information encompassed with reg 3.32, rather than the employment contract per se. For the reasons I have identified, it follows that the first ground must be allowed.

THE SECOND PROPOSED GROUND

27    The second proposed ground is as follows:

The primary Judge erred in finding that the Respondent's request for a copy of his employment contract was a request for an “employee record” within the meaning of r 3.42 of the FW Regulations.

28    By the second ground, Hisense contends that the primary judge erred in finding that the Respondent's request for a copy of the employment contract was a request for an “employee record” within the meaning of reg 3.42 of the FW Regulations. My conclusion in respect of the first ground means that ground 2 is also established: the request by Mr Naskovski was for his employment contract. For the reasons I have explained, this is not to be equated with a request for a statutory “employee record” within the meaning of s 535 and reg 3.42. It follows that ground 2 is established.

THE THIRD PROPOSED GROUND

29    The proposed third ground is as follows:

The primary Judge erred in finding that the Appellant contravened s 535(3) of the Fair Work Act 2009 (Cth) (the FW Act) and reg 3.42 of the FW Regulations.

30    Ground 3 is an expression of the conclusion that follows from ground 2, expressed as its ultimate conclusion. It is not clear if all grounds are strictly necessary, but it must succeed for the same reason that I have identified in relation to grounds 1 and 2.

LEAVE TO APPEAL

31    The principles concerning the grant of leave to appeal are set out above, and for the reasons I have explained, I have concluded that her Honour's analysis was in error, and that the proposed grounds of appeal would be successful.

32    In Latitude at [18], the Full Court of this Court explained that appeals in the course of proceedings were often conducive of delay and not to be encouraged. This case involves an exception to that general proposition, where an interlocutory appeal is appropriate. That is because it involves a discrete issue that can be conveniently determined as a pure matter of statutory construction, and which is severable from the balance of the proceedings, factual issues and anything else which might be causative of delay. By swiftly identifying and dealing with the issue, the matter can now proceed to determination at its next stage.

CONCLUSION

33    I therefore consider it appropriate to grant leave to appeal, hear the appeal instanter, and set aside order 2 of the orders of the Federal Circuit and Family Court of Australia (Division 2) at Melbourne dated 7 August 2025.

34    The Applicant also seeks an order that certain paragraphs of the primary judgment be set aside. That is not an appropriate order. Paragraphs of a judgment contain reasons which support the orders made. It is the orders that are subject to the appeal and which are corrected if an appeal is established. A judgment is not edited or changed to reflect a conclusion on appeal. The application for such an order is therefore refused.

35    No party sought costs on appeal, which is appropriate given the context of the FW Act and the submitting notice that was filed.

36    These reasons were delivered ex tempore and were revised in accordance with Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J; Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

Associate:

Dated:    28 January 2026