Application by Safe Working Solutions National Pty Ltd
[2020] FWC 3785
•24 JULY 2020
| [2020] FWC 3785 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Application by Safe Working Solutions National Pty Ltd
(AG2020/1836)
| Deputy President Masson | MELBOURNE, 24 JULY 2020 |
Application for termination of the Safeworking Solutions Pty Ltd National Infrastructure Agreement 2015 – applications for Orders requiring production of documents.
This decision relates to applications for orders requiring production of documents under s 590(2) of the Fair Work Act 2009 (Cth) (the Act) filed respectively by Safeworking Solutions Pty Ltd (Safeworking Solutions) and the Australian Rail, Tram and Bus Industry Union (the RTBU).
The background to the applications may be shortly stated. Safeworking Solutions filed an application for the termination of the Safeworking Solutions Pty Ltd National Infrastructure Agreement 2015[1] (the Agreement) on the 26 June 2020 pursuant to s. 222 of the Act. The application followed a ballot of employees conducted by Safeworking Solutions on 24 June 2020 which resulted in a majority of employees that participated in the ballot voting in support of the proposed termination of the Agreement.
The RTBU is covered by the Agreement and has advised the Fair Work Commission (the Commission) that it opposes the termination of the Agreement. Central to the foreshadowed objection of the RTBU to approval of the termination of the Agreement is that of the high proportion of casual employees engaged by Safeworking Solutions and the particular cohort of employees that were invited by Safeworking Solutions to participate in the ballot on 24 June 2020 for the proposed termination of the Agreement.
The matter was initially listed for Mention on 30 June 2020 during the course of which both parties foreshadowed making applications for orders for the production of documents. Directions for the filing of material and the listing of the matter for hearing were subsequently issued on 30 June 2020. The directions included the requirement for any applications for orders for the production of documents to be filed by 4.00pm on 3 July 2020. Both parties subsequently filed applications pursuant to s 590(2) of the Act in accordance with the directions.
The applications for orders to produce documents were listed for hearing on 14 July 2020 at which Mr Bakri of Counsel sought leave to appear on behalf of the RTBU and Mr Williams of Counsel sought leave to appear on behalf of Safeworking Solutions. Representation was not opposed by either party and permission to appear was granted to both representatives by the Commission pursuant to s 596 of the Act.
In its application for orders for production of documents Safeworking Solutions seeks the production of various documents held by the RTBU falling within 8 categories, including various correspondence sent by the RTBU to its members employed by Safeworking Solutions prior to and following the 24 June 2020 Agreement termination ballot. Safeworking Solutions also seeks production of documents relating to surveys conducted by the RTBU of its members in relation to the proposed termination of the Agreement.
The RTBU consented to six of the documents sought being produced, those being documents falling within categories 1, 2, 3, 4, 5 and 7 sought by Safeworking Solutions. With respect to the remaining documents falling within categories 6 & 8 the RTBU did not oppose production on the basis that it would produce two versions of the documents, those being;
(i) Redacted versions of the documents which would be available for inspection by Safeworking Solutions; and
(ii) Unredacted versions of the documents which would be available for inspection by the solicitors acting for Safe Working Solutions National on the condition that they would not be disclosed to anyone including any servants, agents or employees of Safeworking Solutions or Safe Working Solutions National Pty Ltd.
In its initial applications filed on 3 July 2020 the RTBU sought orders for the production of documents by both Safework Solutions and its solicitors, IRIQ Pty Ltd T/A IRIQ Law (IRIQ). During the course of the hearing conducted on 14 July 2020 the RTBU withdrew its application for production of orders by IRIQ and narrowed the range of documents that it sought to be produced by Safeworking Solutions. The RTBU filed an amended Draft Order following the hearing on 14 July 2020 in which it detailed the orders that it pressed for the production of. Those documents are as follows;
1. A copy of each of the emails (excluding any attachments to the emails) which was sent to employees of Safeworking Solutions Pty Ltd (employees) on 16 June 2020 as referred to in sections 2.1 and 2.2 of the Form F24A dated 25 June 2020 filed in support of the Application (the 16 June Emails).
2. One copy of each type of the documents that constituted the “Access Pack” which was attached to the 16 June Emails.
3. Any document recording the result of the ballot conducted on 24 June 2020.
4. Copies of any ballots returned by employees, whether by SMS message or otherwise, in respect of whether they approve a proposed termination of the EA.
5. A copy of the certified Workplace Ballot Final Report declared on 24 June 2020.
6. Copies of all daily payroll reports for all employees of Safeworking Solutions Pty Ltd who performed any work (including attending training) during the period 16 June 2020 to 14 July 2020 (inclusive).
The gravamen of the RTBU submissions is that central to the disposition by the Commission of the application for termination of the Agreement by Safework Solutions is that of establishing which employees were invited to participate in the ballot on 24 June 2020 and whether, as contended by the RTBU, there were persons excluded from participating in the ballot that ought to have been invited to participate. The production of documents sought was, according to the RTBU, critical to the Commission reaching the necessary level of satisfaction as to the statutory requirements having been met.
As to the issue of confidentiality of the documents sought, the RTBU contend that whether it is appropriate to grant a party access to documents will depend on the circumstances. In this case the RTBU submit that it is appropriate to order the production of the documents and allow access of the RTBU’s lawyers. Furthermore, the RTBU contend that the obligation of the Commission to accord procedural fairness to all parties tells in favour of granting RTBU’s legal representatives’ access to the documents.
While resisting production of documents sought by the RTBU that would require identification of individual employees, Safeworking Solutions advised that it consented to production of the following documents;
1. A copy of each of the emails (excluding any attachments to the emails) which was sent to employees of Safeworking Solutions Pty Ltd (employees) on 16 June 2020 as referred to in sections 2.1 and 2.2 of the Form F24A dated 25 June 2020 filed in support of the Application (the 16 June Emails) with the redaction of employees names.
2. One copy of each type of the documents that constituted the “Access Pack” which was attached to the 16 June Emails.
3. A copy of the certified Workplace Ballot Final Report declared on 24 June 2020.
In opposing the disclosure of individual employee names Safeworking Solutions accepts that it must satisfy the Commission in relation to the statutory requirements and that brings with it, obligations of disclosure. This will require the Commission to consider the appropriate ‘census date’ for the purpose of the ballot cohort establishment and the number of eligible employees.
Safeworking Solutions further submits that it is not the function of the union to interrogate all of the employer’s data to determine whether the Commission might be satisfied but rather any required data can be provided by Safeworking Solutions to the Commission to satisfy itself. Should the union hold concerns that particular members of the RTBU have been deprived of an opportunity to participate in the ballot on 24 June 2020, then the union has access to all of the information necessary to make its case, including its own survey material and information on rosters that may be obtained directly from its members.
Safeworking Solutions opposes the disclosure of confidential employee records to the RTBU or to its legal representatives and submits there is authority to support the making of orders which deny access to personal information to an opposing party.[2] It further argues there is no authority identified by the RTBU that concerns disclosure of material to solicitors (and/or counsel) but not to their represented party.
Consideration
The jurisdiction of the Commission to make an order for the production of documents arises from s.590 of the Act, and in particular 590(2)(c). The Act states:
“590 Powers of the FWC to Inform Itself
....
590(2)...
………………
(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWC;
………………………..”
Also relevant to the exercise of the Commission’s discretion in respect of confidentiality when considering the ordering of the production of documents is that of both ss 594 & 577 of the Act and the authorities[3] that go to the principle of the open and transparent administration of justice.
In exercising its discretion to issue an order to produce documents, the Commission as stated by Munro J in Clerks (Alcoa) Case will generally be guided by what applies in courts of law:
“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.
...
The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.
...
A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”[4]
The principles to be applied in respect of orders to produce were more recently summarised as follows in 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) (Esso);
“[6] The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”[5]
On the contested issue of access to documents containing employee details, I accept based on the cases to which I have been referred to by the parties that there have been circumstances in which legal representatives have been allowed access to employee names.[6] There have also been circumstances in which such access has not been granted.[7] The cases serve to reinforce the need for the Commission to consider the particular circumstances of the matter before it.
Turning firstly to the application made by Safeworking Solutions for the production of various documents, I propose to issue the orders for production of documents by the RTBU to the Commission in the manner consented to by the RTBU. Specifically, documents falling within categories 1, 2, 3, 4, 5 and 7 as sought by Safeworking Solutions will be ordered for production. As regards the documents falling within categories 6 & 8, they shall also be ordered for production in both a redacted and unredacted form. Furthermore, should Safeworking Solutions legal representatives seek access to the unredacted documents falling within category 6 & 8 the Commission will advise the RTBU who notwithstanding their stated consent to allowing such access will be afforded an opportunity to comment or object.
Turning now to the applications made by the RTBU. As stated above, the RTBU press for a range of documents to be produced which in essence they say will assist inform the Commission satisfy itself as to the statutory requirements and in particular whether the cohort of employees that were invited to participate in the ballot for the termination of the Agreement was properly determined.
Of particular significance in the matter is that of the high proportionate number of casual employees in the workforce who were covered by the Agreement at the time of the ballot. The Form F24A furnished by Safeworking Solutions identified that of the 134 employees covered by the Agreement at the time of the ballot 113 were casual employees. Consequently, establishment of the particular casual employees that were covered by the Agreement and entitled to participate in the ballot will be central to determination of the application.
Further, it is unclear as to whether there is a larger number of casual employees who may be regularly engaged by Safeworking Solutions and who by reason of their particular patterns of engagement were not rostered to work during the ballot period and as a consequence may not have been invited to participate in the agreement ballot. This cohort ‘selection’ appears to be at the core of the RTBU’s foreshadowed objection to approval of the termination of the Agreement.
The RTBU submit that there were casual employees who they contend are covered by the Agreement and who were not invited to participate in the ballot. This according to the RTBU calls into question whether the Commission can be satisfied that the termination was agreed to in accordance with subsection 221(1) of the Act. The RTBU further submits that establishment of whether the proper cohort of employees covered by the Agreement were able to participate in the ballot cannot be resolved without access to the documents sought. This includes the list of employees that were sent an email by Safeworking Solutions on 16 June 2020 inviting them to participate in the agreement termination ballot which can then be checked against the payroll information for the period 16 June 2020 to 14 July 2020.
True it is as Safeworking Solutions submits, the RTBU has access to information from its members and could seek to lead evidence as to the roster patterns of particular members both during the period of the ballot and since. That would not necessarily resolve the controversy as the Safeworking Solutions submission appears to proceed on the premise that all casual employees engaged by Safeworking Solutions are members of the RTBU or that the RTBU has information from all of its members. It would also not necessarily establish whether those particular employees were or weren’t invited to participate in the ballot. The information as to which employees were invited to participate in the ballot is held by Safeworking Solutions as is all of the relevant payroll/roster information in the period.
In my view, determining whether the correct cohort of employees were invited to participate in the Agreement termination ballot is central to the Commission reaching the required level of satisfaction as to the statutory requirements being met. The names of those employees who were invited to participate in the ballot need to be reconciled with the list of employees that were covered by the Agreement. Absent that information I doubt whether the Commissions can reach the required state of satisfaction.
I regard the documents falling into the categories of 1, 2, 5 & 6 per paragraph [8] above as sought by the RTBU as relevant. The documents are identified with sufficient particularity, their sought production does not constitute a ‘fishing exercise’ and nor has it been argued that production of those documents would be an unreasonable burden.
As regards the documents in categories 3 & 4 I have come to a different view. There is nothing before me currently to suggest that the ballot results as may be found in the copy of the certified Workplace Ballot Final Report, which will be ordered for production, should be distrusted such as to warrant a broader “fishing exercise”. I decline to grant an order for the production of documents that fall within the category 3 at paragraph [8]. As regards copies of ballots returned by employees sought pursuant to category 4, I am similarly not persuaded at this stage that the ballot process should be distrusted to the extent that the confidentiality and privacy of individuals participating in the ballot should be breached. That is not to say the production of such documents may not be required at some point in the proceedings and it is open to either party to make further applications for document production as the matter advances to and during hearings for the application to terminate the Agreement.
I note that Safeworking Solutions do not object to production of the documents falling into categories 2 & 5 at [8] above. However, they do object to producing documents containing employee names that would be made available to the RTBUs legal representative. I agree with that concern, particularly in circumstances where I am not convinced that the information sought by the RTBU cannot be produced in a useful redacted format by Safeworking Solutions. That could in my view be done by redaction of names and replacement of each redacted name with a unique identifying number for example. Such redaction could be done both with respect to the list of employees who were sent an email on 16 June 2020 and with respect to the employee payroll data sought for the relevant period. Both sets of data could then be reconciled without disclosure of individual names.
Having regard to the above I intend to issue the orders sought by the RTBU for production of documents falling into categories 1, 2, 5 & 6 per paragraph [8] above. However, the orders in relation to the documents falling into categories 1 & 6 will require the production of both unredacted and redacted versions. Unredacted versions will not be made available to the RTBU or its legal representatives at this stage although they will not be precluded from seeking access to the documents. Should such a request be made Safeworking Solutions will be advised and be provided an opportunity to comment or object.
Conclusion
Orders will be separately issued reflecting this decision.
DEPUTY PRESIDENT
Appearances:
Mr M Williams for the Applicant
Mr Y Bakri for the RTBU
Hearing details:
2020
Melbourne
14 July
[1] AE416834
[2] United Voice v G8 Education Limited [2018] FWCFB 3803
[3] See for example Amie Mac v Bank of Queensland Ltd & Ors [2015] FWC 774 at [6]-[7]
[4] [1988] AIRC 391 Print H2892 at p 2
[5] [2017] FWCFB 2200 at [6]
[6] The Australian Workers’ Union v Kantfield Pty Ltd T/A Martogg & Company [2016] FWC 6473 at [18], Transport Workers’ Union of Australia v Darling Downs Express Transport Pty Ltd [2015] FWC 2658 at [12], see also MTCT Services Pty Ltd v CEPU & others [2019] FWC 1422
[7] G8 Education Limited [2018] FWC 2739, see also United Voice v G8 Education Limited [2018] FWCFB 3803
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