Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
[2024] FWCFB 106
•5 MARCH 2024
| [2024] FWCFB 106 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Association of Professional Engineers, Scientists and Managers, Australia
v
Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
(B2023/1339)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 5 MARCH 2024 |
Application by the Association of Professional Engineers, Scientists and Managers, Australia
On 6 December 2023, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made an application pursuant to s.248 of the Fair Work Act 2009 (Act) for a single interest employer authorisation. The authorisation is sought in respect of bargaining for an enterprise agreement to cover certain employees in the black coal mining industry. In particular, in its current form, the application seeks authorisation of the commencement of multi-employer bargaining with four employers, namely: Great Southern Energy Pty Ltd T/A Delta Coal (Delta Coal), Whitehaven Coal Mining Ltd (Whitehaven), Peabody Energy Australia Coal Pty Ltd (Peabody) and Ulan Coal Mines Ltd (Ulan) (collectively the Respondents).[1]
Each Respondent has opposed the application made by APESMA on various grounds. The matter has been referred to this Full Bench by the President. The substantive hearing of the matter has been listed for late Aril and early May this year.
While dealing with various interlocutory matters, two issues have arisen that require the decision of this Full Bench. These relate to an application to be heard (intervention) made by 2 parties and a contested application for the production of materials made by Peabody against APESMA, in effect on behalf of the Respondents (production order application). This decision deals with these two aspects.
Intervention
During February 2024, both the Australian Council of Trade Unions (ACTU) and Minerals Council of Australia (MCA) filed an application to intervene in the present proceedings. These are, in effect, requests by non-parties to make submissions and/or provide material to enable the Commission to inform itself about the application under s.590(1) of the Act. Whether to permit such “intervention” is a matter of discretion for the Commission.
The ACTU and MCA have indicated that they seek to make submissions about the proper construction of the relevant Part of the Act. In addition, MCA seeks the capacity to provide evidence. Whilst neither intervention application is contested by any of the parties, APESMA oppose the request by the MCA to permit it to tender and challenge evidence.
During a Directions Conference[2] before Hampton DP, MCA indicated that the extent of the evidence sought to be tendered was a statement from an expert witness.
We are satisfied that it is appropriate to permit both the ACTU and MCA to intervene. This is a significant test of relatively new provisions, and the Commission will be assisted by submissions about the proper construction of the Act. In terms of MCA’s additional request, we do not consider that it should be permitted to participate as if it was a direct party to the proceedings. It has members that are named to be covered by the proposed Agreement, but these are already separately represented in these proceedings and its broader interests do not warrant being treated as a direct party. Consistent with that approach, MCA is not to be permitted to lead evidence that could properly be led by the direct parties, and we do not consider that it should generally be permitted to cross-examine any witnesses.
As to the foreshadowed request to provide expert evidence, there is no detail about this or an explanation as to why this cannot be led by one of the parties or how it might assist the Commission. In that light, we propose to permit MCA to file and serve the intended evidence on or before 15 March 2024. The Full Bench will subsequently determine whether to admit this evidence, better informed about the nature and purpose of that material.
Should any party seek a determination of that issue ahead of the filing and service of reply submissions on 5 April 2024, liberty is granted.
Production order application
On 20 February 2024, Peabody made an application relying upon s.590(2)(c) of the Act for orders requiring APESMA to produce documents relating to the present proceedings. This application is opposed by APESMA and has now been subject to oral and written submission.
The Order for Production sought specifically:
1.All documents recording or referring to any of the meetings referred to in paragraph [25] of the witness statement of Catherine Bolger dated 29 January 2024 (Bolger Statement), including any of the following:
a.any notice of meeting, agenda, or other meeting papers;
b.any minutes of those meetings; and
c.any notes or emails recording or referring to the business of those meetings.
2.All documents recording or referring to any communications in the period 1 April 2023 to 5 December 2023 between APESMA and any persons then employed by any of the respondent employers in matter B2023/1339 in a role covered by the proposed agreement regarding:
a.multi-enterprise bargaining;
b.a single interest employer authorisation (SIEA);
c.the log of claims dated 18 November 2023 (at pages 13 to 17 of the Bolger Statement);
d.any of the meetings referred to in paragraph [25] of the Bolger Statement; and/or
e.a survey or vote for a SIEA covering the employer respondents, including the ballot referred to in the witness statement of Robert Coluccio dated 20 December 2023 (Coluccio Statement).
Definitions:
“Document” – for the purposes of this Order, Document:
a.is to be given a meaning consistent with the Evidence Act 1995 (Cth) to mean any record of information, in the possession, custody or control of APESMA, and includes:
i.anything on which there is writing; or
ii.anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
iii.anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
iv.a map, plan, drawing or photograph;
b.does not include any document that APESMA has already served or produced to Peabody Energy Australia Coal Pty Ltd in this proceeding at the time of this Order.
The context for the application is that amongst other requirements, the Commission must assess whether APESMA has demonstrated that a majority of relevant employees at each of the Respondents want to bargain for the proposed multi-employer agreement (s.249(1B)(d) of the Act). APESMA relies upon a combination of meetings and employee petitions/votes to support that contention, which is disputed by the Respondents.
The proposed order seeks, in effect, documents related to the meetings (meeting records) and documents related to the communications between APESMA and its relevant members (communication records).
Peabody contends that the principles applied by the Commission support the making of the proposed orders as they relate to documents that have apparent relevance to the issues in dispute, are sought for the purpose of supporting a case that it intends to advance, and their production would not oppressive or unreasonable.
Peabody foreshadowed that it intends to argue that the majority support requirement of the Act requires the Commission to assess whether the employees who participated in the petition gave informed support. That is, whether they understood the nature and consequences of the bargaining that was being proposed. This, it contended, was relevant to both categories of records being sought.
Peabody further contends that the meeting records sought reference meetings that APESMA has led evidence about and rely upon in support of their application, and that their relevance is not only to APESMA’s status as being a representative of the industrial interests of the relevant employees, but also to the question of (informed) majority support.
In relation to the communications records, Peabody contends that the evidence provided by APESMA to date indicates that only limited information was provided to the employees as part of the petitions/votes and the full context of the communications is relevant and the documents should be produced.
Peabody accepted that the names of individuals could be redacted from the records if appropriate.
The other Respondents adopted Peabody’s submissions, supported the production order application, and sought access to any documents produced given that the scope included meetings and communications with employees belonging to each of the employers.
APESMA contends that the production order application was, at best, premature as it sought production in advance of there actually being any evidence to suggest there is an issue to be determined. Further, APESMA contends that the application is nothing more than a fishing expedition to simply go looking for documents to explore whether there is a supportable basis for a case. This it submitted is inconsistent with relevant authority. [3]
APESMA also contends that it was open for the Respondents to argue that it had failed to satisfy the Commission on the majority support issue at a later time and that even if Peabody was able to support its argument with evidence, it would not persuade the Commission on that issue.
Finally, APESMA contends that it was generally quite unclear as to what might be caught by the proposed order over a very extensive period and would require a burdensome exercise of trying to go through every communication that any official or delegate had with any member that may have touched on any of those subject matters over that relevant period and would involve some interpretation of what those subject matters properly are.
In reply submissions, Peabody contends that the material being requested is relevant to a case that is being advanced and that the evidence provided by APESMA leads to doubt that the relevant employees understood the basic implications of the multi-employer bargaining authorisation sought by the application.
The Full Bench of the Commission in Esso v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[4] (Esso) stated 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,1which we adopt without repeating them. It is sufficient to observe that the powerunders.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.”(citation omitted)
We add for our part that the notion of a “fishing expedition” is that an order to produce is not to be used for the purpose of exploring whether there is a supportable basis for a case that might potentially be advanced.[5]
Further, the factors described in Esso guide the Commission’s discretion but are not akin to jurisdictional perquisites.[6]
Although Peabody has raised the notion that the material being sought was “relevant to the status of APESMA as a bargaining representative”,[7] we do not understand that Peabody, or the Respondents more generally, contest the capacity for APESMA to apply for the authorisation or to act as the bargaining representative of the relevant employees. We also observe that Peabody accepts that a majority of the relevant employees responded to APESMA’s survey/petition affirmatively and it is not seeking to look behind the employee numbers and identification process verified by the Commission under the December Directions. We deal with the production order application on that basis.
Peabody and the Respondents are directly contending that the Commission cannot be satisfied that a majority of relevant employees at each of the Respondents want to bargain for the proposed multi-employer agreement (s.249(1B)(d) of the Act). They contend, in part, that in order to do so, the employees who participated in the processes leading to apparent endorsement must have had a “full understanding” of the purpose and consequences of the survey and the proposed authorisation, and this is also in contest. We observe that this approach would raise important construction issues; however this is not the context to determine whether the proposition is sound. This is the first substantially contested application of this kind and the issue is largely untested in similar statutory settings.
The material sought has apparent relevance to the case that the Respondents are running and arises from the evidence provided by APESMA and the basis of its case. That evidence also supports the notion that some relevant documents of the kind sought are likely to exist and have not been provided.
No objection has been made on the basis that the production would reveal internal deliberations.
In all these circumstances, we consider that a production order should be made, but in more limited terms. The scope of the proposed order in relation to both aspects is too broad.
The scope of the meeting records will be limited to certain classes of documents named in the Order; namely any notice of meeting, agenda, or other meeting papers and any minutes of the relevant meetings. The scope of the communication records will also be limited to certain classes of documents that it has provided to the relevant employees. Those documents will be those that APESMA has provided to the relevant employees regarding:
· multi-enterprise bargaining for the black coal mining industry;
· the making of a single interest employer authorisation (SIEA) for the black coal mining industry;
· the log of claims dated 18 November 2023 (at pages 13 to 17 of the Bolger Statement); and
· a survey or vote for a SIEA covering the employer respondents, including the ballot referred to in the witness statement of Robert Coluccio dated 20 December 2023.
Full details, including the time period involved, are set out in the Order[8] that is being issued in conjunction with this Decision.
We will allow APESMA to redact the names and contact details of any employees cited in the material to be produced.
The material is to be produced to the Commission by 19 March 2024 and, subject to any further order, it will be made available to all of the Respondents.
We have made no decision yet as to the ultimate admissibility of the material.
DEPUTY PRESIDENT
Appearances:
I Taylor SC for the Association of Professional Engineers, Scientists and Managers, Australia
R Dalton KC for Peabody Energy Australia Coal Pty Ltd
J Mattson for Great Southern Energy Pty Ltd T/A Delta Coal
A Khouri for Wollongong Resources Pty Ltd
J Murdoch KC for Ulan Coal Mines Pty Limited
V Bulut of Counsel for Whitehaven Coal Mining Ltd
S Kemppi for the Australian Council of Trade Unions
G Giorji for the Minerals Council of Australia
Hearing details:
2024
February 23
MS Teams.
Final written submissions:
27 and 29 February 2024.
[1] Wollongong Resources Pty Ltd (Wollongong Resources) was originally named as a Respondent in APESMA’s application. However, the Commission has been advised that APESMA is no longer pursuing the application against Wollongong Resources and the application has been amended to remove this entity.
[2] 23 February 2024.
[3] Relying upon Woodside Energy Ltd v Australian Worker’s Union[2022] FWCFB 168 at [29] and Construction, Forestry, Maritime, Mining and Energy Union v MacKellar Mining Pty Ltd[2022] FWC 690 at [166].
[4] [2017] FWCFB 2200.
[5] Kirkman v DP World Melbourne Ltd[2015] FWCFB 3995 at [19] and Woodside Energy Ltd v Australian Worker’s Union [2022] FWCFB 168 at [29]
[6] Woodside Energy v AWU[2022] FWCFB 168 at [25].
[7] Written submissions 23 February 2024.
[8] PR772057.
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