Application by Safe Working Solutions National Pty Ltd - [2020] FWC 3785

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application by Safe Working Solutions National Pty Ltd [2020] FWC 3785
Case: [2020] FWC 3785
Decision Date: 24 JULY 2020

CaseChat Overview and Summary

The matter before the court was an application by Safe Working Solutions National Pty Ltd seeking the termination of the Safeworking Solutions Pty Ltd National Infrastructure Agreement 2015. The application also sought orders requiring the production of documents from the opposing party. The case was heard in the relevant Australian court with jurisdiction over the matter.

The legal issues before the court encompassed whether the grounds for terminating the agreement were met and whether the application for the production of documents was justified. The court had to consider the terms of the agreement, the conduct of the parties, and relevant legal principles applicable to contract termination and discovery of documents. The court's task was to determine if the applicant had provided sufficient evidence to support their claims.

The court meticulously reviewed the evidence and arguments presented by both parties. It assessed whether the grounds for terminating the agreement were substantiated, focusing on the terms and the conduct outlined in the agreement. Additionally, the court examined the necessity and relevance of the documents sought by the applicant. After thorough deliberation, the court determined that the applicant had not provided adequate grounds for terminating the agreement. Consequently, the court dismissed the application for termination. Regarding the request for document production, the court found that the applicant had not demonstrated a sufficient need for the documents. Therefore, the application for the production of documents was also dismissed. The court's decision was based on the lack of compelling evidence and justification provided by the applicant.

Orders