Application by The Australian Workers' Union (RE2018/1350 & RE2018/1387) Application by Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 2567

[2019] FWC 2567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by The Australian Workers' Union
(RE2018/1350 & RE2018/1387)

Application by Construction, Forestry, Maritime, Mining and Energy Union
(RE2019/203)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 15 APRIL 2019

Applications for Entry Permits for Douglas Charles Heath, Daniel Christopher Cain & Craig Darrin Beveridge – applications to set aside orders for production of documents – documents sought have an apparent relevance to issues in the proceedings – applications dismissed.

[1] On 3 April 2019 the Australian Mines and Metals Association (AMMA) applied for orders for production directed to The Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The applications related to the employment of Douglas Heath, Daniel Cain & Craig Beveridge who are each proposed permit holders, the subject of applications for a right of entry permit by the AWU (Cain & Heath) and the CFMMEU (Beveridge).

[2] On 5 April 2018 I made three orders for the production of certain categories of documents (PR706600, PR706601 and PR706602)(collectively the “Orders”).

[3] On 8 April 2019 the AWU applied for the order in PR706600 to be set aside. Similarly, on 9 April 2018 the CFMMEU applied to set aside the orders in PR706601 and PR706602.

[4] Simply stated, the grounds on which the applications to set aside the Orders are made are:

•  Relevance;

•  The Orders amount to a fishing expedition;

•  The Orders amount to an unwarranted intrusion on the privacy of the proposed permit holders; and

•  Some documents required to be produced are confidential internal records of the proposed permit holders and of the applicant organisations.

[5] It is also said that the Orders impose an unwarranted burden on the organisations given the potentially large volume of documents caught by the schedules of production.

[6] The grounds articulated by the AWU and the CFMMEU in their applications to set aside the Orders raise in essence the same considerations or principles that would apply in determining whether orders for production should be made. In Esso Australia Pty Ltd v AWU and Others 1 a Full Bench of this Commission summarised these principles as follows:

“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.” 2 [Endnote omitted]

[7] As to the question of ascertaining the relevance of a document sought to be produced a Full Bench of this Commission in Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville Coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd v Troy Brown; Campbell Dews; Damien Mason; Gregory Holmes; Jeffrey Mason; and Glynis Sabbo 3 discussed the extent to which it must be shown that a document sought in a production order is relevant to an issue in the proceedings and said:

“The first, and primary, proposition advanced by the appellants in support of its application for permission to appeal rests on a misconceived approach as to the assessment of the relevance of documents for which an interlocutory order for production is sought. The test is whether the documents sought have an apparent relevance to the issues in the proceedings.  Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission. The challenged orders clearly satisfy that test. The applicants in the unfair dismissal applications contend (among other things) that, for the purposes of s.389(2), it was reasonable for them to be redeployed to perform work currently done by contractors. Any documents which would be likely to demonstrate that, during the relevant period, there was work being performed by contractors which could be performed by the applicants would be of apparent relevance to that issue in the case.” 4 [Endnotes omitted]

[8] The Full Bench in Clermont Coal also discussed the cautious approach adopted by the Commission in requiring a party to reveal internal deliberations as to its industrial strategy or policy and observed:

“...However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced. It is not clear to us why compliance with the relevant orders will require documents of that nature to be disclosed. If, after the orders are complied with, a view crystallises on the part of any of the appellants that any of the documents produced would disclose internal deliberations as to industrial strategy or policy, they may, consistent with what was stated by the Deputy President in her decisions, apply to the Member hearing the substantive proceedings for orders to be made to impose appropriate limitations on access to the documents (including, for example, the redaction of documents). If the documents ultimately find their way into evidence, a party may apply to the Member for confidentiality orders under ss.593 or 594 of the FW Act...” 5 [Endnote omitted]

[9] AMMA has been granted permission to participate in the proceedings in opposition to the grant of permits to Messrs Cain, Heath and Beveridge. Its opposition to the granting of the applications are twofold. First, AMMA challenges whether Messrs Cain and Heath are in an employment relationship with the AWU and whether Mr Beveridge is in an employment relationship with the CFMMEU. Secondly, if the proposed permit holders are each employees of the applicant organisations whilst at the same time being employees of another organisation, whether they are each a fit and proper person to hold an entry permit, relevantly because of a conflict of interest between their duties as employees and/or officers of one organisation and their duties as an employee of the applicant organisation.

[10] Without repeating the categories of documents required to be produced by the impugned orders, I am satisfied that each of the categories of documents sought have an apparent relevance to the issues in the proceedings as I have identified them above. Whilst it is accepted that it is not in controversy whether Messrs Cain and Heath are employees of the CFMMEU, I am nonetheless satisfied that the documents sought by the order directed to the CFMMEU in connection with its employment of Messrs Cain and Heath have an apparent relevance to the issues in the proceedings particularly given that these are matters about which in a general sense are the subject of evidence on which the applicant organisations propose to rely. Moreover the documents sought have an apparent relevance to an issue that I apprehend from the oral argument advanced on 12 April 2019, AMMA will seek to agitate concerning the recent amendments to the purported contractual arrangements between Messrs Cain and Heath and the AWU.

[11] Given the apparent relevance of the categories of documents the subject of the Orders, I do not consider that the document sought amount to a fishing expedition as contended by the applicant organisations. I also do not consider that a search for the documents falling within the categories of documents described in the schedule to the orders would impose an unwarranted burden on the organisations concerned. The categories of documents are limited in nature and relate to the employment relationship between the proposed permit holders, the applicant organisations and the organisations in relation to which there is no dispute as to the existence of an employment relationship. The kinds of documents which would fall within the categories of documents are documents that one would expect an organisation to keep and ones that would be readily accessible.

[12] As to the category of documents described in paragraph 1e and 2e of the schedule in PR706600 and the corresponding paragraphs of the schedule in PR706601, as I foreshadowed during oral argument given that documents produced pursuant to those paragraphs might disclose internal deliberations or policies of the applicant organisations, I propose to limit access to documents so produced to the solicitors and counsel engaged by AMMA for the purposes of these proceedings with an order that the document or documents so produced or any part of such document or documents are not to be disclosed to AMMA or to any other person. I direct that each applicant organisation prepare a draft order to give effect to this paragraph.

[13] For the reasons stated, I do not propose to set aside the Orders and I extend the date of compliance with the Orders to 5.00pm on Tuesday, 16 April 2019. To the extent that some documents caught by the categories of documents set out in the schedule to each order are not able to be produced by this time, I give leave to the relevant applicant organisation to produce the document by 5.00pm on the day before the hearing.

DEPUTY PRESIDENT

Appearances:

A Slevin of counsel for The Australian Workers’ Union & Construction, Forestry, Maritime, Mining and Energy Union.

D Parker for the Australian Mines & Metals Association.

Hearing details:

2019.

Melbourne, Sydney & Perth (video):

April 12.

Printed by authority of the Commonwealth Government Printer

<PR707024>

 1   [2017] FWCFB 2200

 2   Ibid at [6]

 3   [2015] FWCFB 2460

 4   Ibid at [19]

 5   Ibid at [23]