Anthony Gilbert Hicks v Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths') T/A Woolworths Supermarkets
[2024] FWC 591
•6 MARCH 2024
| [2024] FWC 591 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.590(2)(c) - Application for an order requiring a person to produce documents, records or other information
Anthony Gilbert Hicks
v
Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths’) T/A Woolworths Supermarkets
(C2023/7987)
| COMMISSIONER LIM | PERTH, 6 MARCH 2024 |
Application for an order requiring a person to produce documents, records or other information – application not granted
Introduction
On 19 December 2023, Mr Anthony Hicks made an application to the Commission pursuant to s 739(6) of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Woolworths Supermarkets Agreement 2018 (Agreement).
Mr Hicks is an employee of Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths’) T/A Woolworths Supermarkets (Woolworths or Respondent). Mr Hicks asserts that there is a dispute between the parties regarding the correct classification for a Woolworths Duty Manager under the General Retail Industry Award 2020 (Classification Dispute).
Woolworths contends that the Commission does not have the jurisdiction to deal with the Classification Dispute. A hearing to determine Woolworths’ jurisdictional hearing has been listed for 28 March 2024.
On 26 February 2024, Mr Hicks made an application for an order to produce documents pursuant to s 590(2)(c) of the Act (Production Application). Woolworths objects to the granting of Mr Hicks’ Production Application. Both parties were provided the opportunity to make submissions in support of their positions and I held a mention on 5 March 2024 to clarify submissions made by the parties.
I have decided against granting Mr Hicks’ Production Application. My reasons for my decision follow.
Background
Woolworths’ jurisdictional objection can be summarised as follows:
(a)Mr Hicks’ Classification Dispute is entirely hypothetical, as Woolworths does not employ anyone in the position of Duty Manager. There is also no prospect of any employee being required to work as a Duty Manager in the future.
(b)The Classification Dispute has no rational connection to Mr Hicks’ personal circumstances, as Mr Hicks has never been employed in the position of Duty Manager and Mr Hicks has never performed higher duties in the position of Duty Manager. Further, Mr Hicks does not have standing to raise a dispute of other employees who may have performed the role of Duty Manager.
Mr Hicks’ Production Application seeks an order for Woolworths to produce the following documents:
(1) The Kronos records that show each time the following employees have been paid for performing higher duties during their employment at Woolworths Victoria Park (‘WVP’) from 2022 to date (i.e. the type of record provided in CH-2 of the witness statement of Cedar Hogberg):
a. Sinju Joshi;
b. Bishal Adhikari;
c. Brett Raymond Murray;
d. Tran The Quyen Dang;
e. Dee Edwards;
f. Christine Smith;
g. Zoe Palmer; and
h. any employee that has been paid at Retail Employee Level 6 for performing higher duties.
(2) All weeknight rosters for WVP from 2022 to date or, alternatively, all rosters (2022 to present) for any period during WVP’s trading hours where there were no salaried employees working.
(3) In this schedule, ‘rosters’ are documents which detail the start and finish times of all WVP employees who worked during any part of the time period specified. ‘Weeknight’ means 5pm – 9pm, Monday to Friday
Submissions
3.1 Mr Hicks
Mr Hicks submits that the documents sought will disprove Woolworths’ allegation that the Classification Dispute is entirely hypothetical. The Kronos records will show that Woolworths continues to engage employees in the Duty Manager role on a ‘higher duties’ basis.
Mr Hicks contends that it is irrelevant whether or not he has performed higher duties as a Duty Manager. However, in the alternative, he submits that he has in fact performed higher duties in the position of Duty Manager and Woolworths’ records do nothing more than show that he was not paid for the work he performed.
Mr Hicks further submits that he seeks to show that there have been many times when other employees have also not been paid for the work they performed. Mr Hicks seeks to do this by comparing the Kronos records with times when there were no salaried employees working, which can be ascertained by reference to the rosters. Periods where there were no salaried employees working and no employees being paid higher duties lead to one of two conclusions: there was either no one leading the store, or the employee acting as Duty Manager was not paid for the work they performed.
Lastly, Mr Hicks submits that having access to the rosters may enable him to ascertain the exact dates that he worked as a Duty Manager.
3.2 Woolworths
Woolworths submits that the Classification Dispute has been referred to the Commission pursuant to clause 22.2 of the Agreement. Accordingly, if the Commission does have the power to determine the dispute (which Woolworths denies), such power is conferred by clause 22.2 of the Agreement.
Clause 22.2(c) of the Agreement relevantly provides that: “in any proceedings before ethe FWC pursuant to this clause…the FWC may request but not compel a person to produce documents”.
Section 739(3) of the Act provides, “In dealing with a dispute, the FWC must not exercise any powers limited by the term”. By reason of clause 22.2(c) of the Agreement, the Commission does not have the power to make an order for the production of documents.
Woolworths cites Zanon v CSL Behring (Australia) Pty Ltd T/A CSL Behring[1] (Zanon), where the Commission found that the Commission’s power to order the production of documents in a dispute under s 739 was subject to the constraints in the applicable dispute resolution clause.
Further, Woolworths submits that the Commission should not request the production of the Kronos documents identified in the Production Application for the following reasons:
(a)There is no issue in dispute in the substantive proceedings, or in connection with Woolworths’ jurisdictional objection as to whether other employees have been paid higher duties at the Retail Employee Level 6 rate of pay.
(b)The dispute relates to the position of Duty Manager, which Woolworths says has not existed in its supermarket store structure since around September 2019.
(c)Mr Hicks’ claim for the Kronos documents is misconceived. The witness statement of Cedar Hogberg in the jurisdictional objection matter shows that the records go no further than identifying the occasions on which an individual employee was recorded as having undertaken higher duties and the classification level relevant to those higher duties. They do not identify the type of duties or the particular position that the team member has performed. For example, the Retail Employee Level 6 classification applies to various positions and duties, including to the position of Department Manager.
(d)Mr Hicks does not have the standing (and does not purport) to bring a dispute on behalf of other employees who have been paid higher duties at the Retail Employee Level 6 rate of pay.
(e)The Commission should not request the production of the Kronos documents because they are not relevant to any fact in issue in the proceedings, including in relation to Woolworths’ jurisdictional objection. Further, subparagraph 1(h) of the orders sought is an impermissible “fishing expedition” and an abuse of process.
Woolworths further submits that the Commission should not request the production of the weeknight rosters identified in the Production Application for the following reasons:
(a)Mr Hicks seeks to rely on the roster documents to draw an inference that “the duty manager employee was not paid for the work they performed”. There is no issue in dispute in relation to whether or not “other employees” have been paid higher duties for the work they performed. Mr Hicks also does not have standing to bring a dispute on behalf of other employees. The documents sought are not relevant to any fact in issue in the substantive proceedings or Woolworths’ jurisdictional objection.
(b)Further, and in the alternative, the request of “all weeknight rosters” for a period of more than two years is an impermissible “fishing expedition” and an abuse of process.
(c)The alternative request for “all rosters (2022 to present) for any period during WVP’s trading hours where there were no salaried employees working” would require Woolworths to analyse over two years of rosters and identify any periods within WVP’s trading hours where there were no salaried employees working.
3.3 Mr Hicks’ Response
Mr Hicks’ responsive submissions are as follows:
(a)His application for an order under s 590(2)(c) of the Act arises in relation to Woolworths’ jurisdictional objection, not the substantive application itself.
(b)Resolving a jurisdictional objection is clearly not the same as dealing with a dispute. The task before the Commission is not to deal with the Classification Dispute, but to determine whether s 595(1) of the Act has been met. If the answer to that question is ‘yes’, then the Commission may deal with the Classification Dispute.
(c)If the Commission were to find that dealing with a dispute pursuant to the Act includes the determination of jurisdiction, it would lead to absurd outcomes. By way of example, suppose that the Commission, after holding a hearing to determine a jurisdictional objection, finds that it does not have the jurisdiction to deal with a dispute. It has already dealt with the dispute by determining the jurisdictional objection. This would put the Commission in breach of s 595(1) of the Act.
(d)This is an absurd interpretation. The Commission would not be able to deal with jurisdictional objections unless it is certain from the start that s 595(1) has been satisfied.
(e)Section 739(1) of the Act only “applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute”. If the Commission does not have jurisdiction to deal with the dispute Woolworths contends because clause 22.2(c) of the Agreement does not permit it, then s 739(1) does not apply.
(f)Mr Hicks further contends that Woolworths’ reliance on Zanon does not assist the Commission. This is because the application for production of documents in Zanon was made in the context of a substantive dispute application, not a jurisdictional objection.[2]
Mr Hicks further submits that the higher duties records will establish that the Classification Dispute is not hypothetical, regardless of whether he has performed work as a Duty Manager.
Mr Hicks says that he will have no issues in discerning whether employees were paid Retail Level 6 for being a Duty Manager or for another position. Mr Hicks submits that at the WVP store, Retail Level 6 is only used for employees leading the store and for assistant department managers who step up to run the department whilst the department manager is on leave.
Mr Hicks also seeks the production of the records to discredit Woolworths’ evidence that he has never performed the work of a duty manager.
Statutory framework
The Commission’s power to deal with disputes is set out in s 595 of the Act, which provides:
“595 FWC’s power to deal with disputes
(1)The FWC may deal with a dispute only if the FWC is expressly authorised to do so or in accordance with another provision of this Act.
(2)The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a)by mediation or conciliation;
(b)by making a recommendation or expressing an opinion.
(3)The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4)In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5)To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”
Subdivision B of Div 2 of Pt 6-2 of the Act concerns “Dealing with disputes”. Section 738 of the Act provides:
“738 Application of this Decision
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement that includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extend that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
Section 739 provides the Commission’s power to deal with disputes as follows:
“739 Disputes dealt with by the FWC
(1)This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2)[Repealed]
(3)In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4)If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5)Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6)The FWC may deal with a dispute only on application by a party to the dispute.”
Consideration
5.1 Clause 22.2(c) of the Agreement
Section 739(3) of the Act provides that in dealing with a dispute, the FWC must not exercise any powers limited by the term. Clause 22.2(c) of the Agreement clearly defines the power of the Commission to request, but not compel the production of documents in a dispute.
Such an interpretation is consistent with the Full Court of the Federal Court’s characterisation of the Commission’s arbitral power in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[3] The Full Court observed that where a term under s 739(1) “places limits on the powers that may be exercised by the Commission in settling disputes, the Commission must remain within those limits”.[4] It is also consistent with other matters determined by the Commission, such as Zanon.
However, the parties dispute whether 22.2(c) is currently engaged. Woolworths contends that there is no dispute under the dispute resolution clause in the Agreement and thus the Commission cannot deal with Mr Hicks’ matter. Mr Hicks effectively submits that Woolworths cannot have it both ways – it cannot argue that there is no dispute and also argue that the dispute resolution clause applies.
It is not necessary for me to determine to finality whether the condition in clause 22.2(c) applies to the proceedings to determine Woolworths’ jurisdictional objections. That is because regardless of whether clause 22.2(c) is engaged, I do not find that there are factors that weigh in favour of exercising my discretion under s 590 of the Act. However, I observe the following:
(a)Though the Commission’s authority to engage in the arbitration of disputes pursuant to a dispute resolution term originates from statute, the application of the statutory power is affected by the terms of the relevant dispute resolution procedure.[5]
(b)The Commission does not have a general arbitral power to deal with disputes - the exercise of the Commission’s power in relation to s 739 can only occur in accordance with a relevant dispute resolution clause.[6]
(c)Mr Hicks’ dispute has been filed pursuant to clause 22.2(a) of the Agreement, which provides that if a dispute remains unresolved after discussions between the parties, a party may refer a dispute to the Commission for resolution.
(d)Woolworths’ jurisdictional objections are regarding the interpretation of ‘dispute’ in the Agreement. This will require an interpretation of the words in the Agreement. It is not an exercise in interpreting the words of the Act.
5.2 Section 590
Section 590 of the Act provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate. It confers a broad discretionary power on the Commission to inform itself by means including (but not limited to) the methods outlined in subsection 590(2).
In considering whether to exercise its discretion, the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.[7] These include:
(a)A party must establish grounds for a belief that a document or class of document exists, and that such a document or class of documents may be, or have been, in the custody or power of the person required to produce.[8]
(b)The documents sought must be identified with sufficient particularity.[9]
(c)The documents sought must have apparent potential relevance to the issues in the proceedings.[10]
(d)The documents sought must be used to support the requesting party’s existing case.[11]
(e)An order to produce cannot be used for the purpose of a ‘fishing expedition’; that is, used for the purpose of exploring if there is a viable case that might be advanced.[12]
(f)The extent to which the burden placed on a person required to comply with the order is reasonable.[13]
(g)The proper administration of justice in the sense that material that is relevant to an issue or issues for determination is available to parties to enable the parties to advance their respective cases.[14]
(h)Whether the documents are being sought for a collateral or improper purpose.[15]
Whether questions of legal professional privilege or confidentiality arise.[16]
(j)Whether compliance with an order to produce would reveal internal deliberations as to industrial strategy or policy.[17]
With regards to Mr Hicks’ request for Kronos records for other employees on the basis that they will show Woolworths continues to engage employees in the Duty Manager role on a ‘higher duties’ basis, I find that this is unnecessary. An examination of the Kronos records in the witness statement of Cedar Hogberg for the jurisdictional proceedings shows that Kronos records the level/s a Woolworths employee is paid during the employment, but does not attribute a classification or role.[18]
In Woolworths’ responsive submissions, they acknowledge that other employees have been paid higher duties at the Retail Employee Level 6 rate of pay.[19] Part of the contentions between the parties is whether employees are acting up into the Duty Manager role, or whether they are acting up into higher duties. Woolworths submits they are not one and the same. The Kronos records do not resolve this issue.
With regards to Mr Hicks’ request for all weeknight rosters for WVP from the start of 2022 until to the present time, I am not satisfied that Mr Hicks has made out a case for their production. It is unreasonable to seek the production of over two years’ worth of documents in this case, particularly given that Mr Hicks has submitted that the weeknight rosters in conjunction with the Kronos records will demonstrate that “employees…have not been paid what they were entitled to”.[20]
During the mention on 5 March 2024, I asked Mr Hicks to clarify if his statement related to the substantive dispute where he contends that employees acting up should be paid at a higher level. Mr Hicks clarified that it was in relation to periods where employees were performing higher duties but continued to be paid the same rates. That is a collateral purpose outside of this current matter.
Accordingly, regardless of whether clause 22.2(c) of the Agreement applies, I am not satisfied that it is appropriate to exercise my discretion pursuant to s 590 to grant the order sought by Mr Hicks.
COMMISSIONER
Hearing on the papers.
[1] [2018] FWC 1015.
[2] Zanon, [2].
[3] [2016] FCAFC 82
[4] Ibid, [29].
[5] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd[2022] FWCFB 93, [62].
[6] Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619, [34]; The Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032, [25];
[7] Esso Australia Pty Ltd v Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) [2017] FWCFB 2200 (Esso); Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847, [23].
[8] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [36].
[9] Ibid, [35].
[10] Clermont Coal Pty Ltd v Brown[2015] FWCFB 2460, [19].
[11] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [35].
[12] Kirkman v DP World Melbourne Ltd[2015] FWCFB 3995, [19].
[13] Esso, [6].
[14] Ibid.
[15] D.A. v Baptist Care SA[2019] FWC 7358, [36] – [38].
[16] Ibid.
[17] Ibid.
[18] Witness statement of Cedar Hogberg, 23 February 2024, attachment CH-2.
[19] Respondents’ submissions, 27 February 2024, [13].
[20] Applicant’s responsive submissions, 28 February 2024, [6].
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