Application by The Australian Retailers Association - [2025] FWC 645

[2025] FWC 645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective

s.158 – Application to vary or revoke a modern award

s.160 – Variation of modern award to remove ambiguity or uncertainty or correct error

Application by The Australian Retailers Association

(AM2024/9)

Variation at the Commissions own Initiative

(AM2024/33)

Application by Anthony Hicks

(AM2024/26)

Application by The Shop, Distributive and Allied Employees Association

(AM2024/40)

VICE PRESIDENT GIBIAN

SYDNEY, 4 MARCH 2025

Application to vary the General Retail Industry Award 2020 – Order for production made by the Commission as contemplated by s 590(2)(c) of the Fair Work Act 2009 (Cth) – Claim for legal professional privilege – Whether preparatory documents or draft reports prepared by an expert witness subject to legal professional privilege – Whether privilege waived by service of the final report of an expert – Whether reliance on final report inconsistent with maintenance of the privilege – Review of privileged documents – Claim for legal professional privilege upheld subject to some instances in which privilege waived.

Introduction

This decision concerns a claim for legal professional privilege made with respect to documents relating to the preparation of an expert report which a party to proceedings before the Commission intends to rely upon at the hearing of the matter.

The Australian Retailers Association (the ARA) has applied to vary the General Retail Industry Award 2020 (the Retail Award) pursuant to ss 157(1)(a) and 160(1) of the Fair Work Act 2009 (Cth) (the Act). The application sought 17 variations to the Retail Award, most of which remain to be determined and are being heard by a Full Bench of the Commission together with a number of issues identified in the final report of the Modern Awards Review 2023-24.

In the proceedings, the ARA has filed and intends to rely on an expert report prepared by David Rumbens. Mr Rumbens is a partner of Deloitte Access Economics Pty Ltd. He is a qualified economist and the leader of Deloitte’s macroeconomic group in Melbourne. In early October 2024, Mr Rumbens was engaged by the then solicitors for the ARA, Corrs Chambers Westgarth, to prepare an expert report concerning, in broad terms, the workforce demographics, working arrangements, performance, competitiveness and productivity of the retail industry in Australia as well as the expected impacts of the variations sought by the ARA. An expert report prepared by Mr Rumbens was filed on 30 October 2024.

On 4 February 2025, an order for production was issued by the Commission on application by the Shop, Distributive and Allied Employee’s Association (the SDA) directed to Mr Rumbens requiring that he produce certain documents. The order for production required that Mr Rumbens produce to the Commission all documents and/or records evidencing or otherwise recording:

(a)any and all draft reports provided by Mr Rumbens to Corrs Chambers Westgarth and/or the ARA prior to the expert report being filed in the Commission.
(b)any…

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

Case: [2025] FWC 645
Decision Date: 4 MARCH 2025

CaseChat Overview and Summary

This case concerns an application by the Australian Retailers Association (ARA) to vary the General Retail Industry Award 2020. The ARA has applied to vary the award pursuant to sections 157(1)(a) and 160(1) of the Fair Work Act 2009 (Cth). The application sought 17 variations to the Retail Award, most of which remain to be determined and are being heard by a Full Bench of the Commission together with a number of issues identified in the final report of the Modern Awards Review 2023-24. In the proceedings, the ARA has filed and intends to rely on an expert report prepared by David Rumbens, a partner of Deloitte Access Economics Pty Ltd. The Shop, Distributive and Allied Employee’s Association (the SDA) issued an order for production requiring Mr Rumbens to produce documents evidencing or otherwise recording: any and all draft reports provided by Mr Rumbens to Corrs Chambers Westgarth and/or the ARA prior to the expert report being filed in the Commission; and any and all communications (letters, emails, text messages) sent or received by Mr Rumbens (or any person acting on his behalf and with his knowledge, approval or authority) pertaining to Mr Rumben’s retainer and the discharge by him of any aspect of that retainer other than Mr Rumben’s letter of retainer dated 9 October 2024 and a subsequent letter of instructions dated 25 October 2024 and the attachments in each case thereto. Deloitte produced a series of documents to the Commission. Of these documents, there were 291 documents in relation to which a claim for legal professional privilege is made. The ARA claimed legal professional privilege with respect to each of the documents produced. The claim for privilege has been challenged by the SDA. The ARA submits that the Commission should uphold the claim for legal professional privilege because the documents are confidential documents which were created for the dominant purpose of the ARA being provided with professional legal services relating to the proceeding and the ARA’s filing, on 1 November 2024, of the final expert report of Mr Rumbens dated 30 October 2024 in support did not result in any waiver of the privilege attaching to the Claimed Documents. The SDA accepts that the documents appear to be privileged but contends that it is reasonable to infer that the communications influenced the content of the report prepared by Mr Rumbens and that a statement that an expert has complied with the Federal Court of Australia Expert Evidence Practice Note does not establish that privilege has not been waived by reliance on the report. The Vice President rejected the claim of privilege with respect to certain documents. The Vice President held that although the documents falling within each category were subject to legal professional privilege, there had been a waiver of privilege with respect to a small class of documents containing comments in relation to the report or recording instructions or requests made of Deloitte or within Deloitte which appeared to have had the potential to have affected the content of the final report in a manner that is inconsistent with the maintenance of privilege.

Orders