Australian Institute of Marine and Power Engineers, The-West Australia Branch v Rivtow Marine Pty Ltd

[2016] FWC 2269

[2016] FWC 2269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Australian Institute of Marine and Power Engineers, The-West Australia Branch
v
Rivtow Marine Pty Ltd
(RE2016/259)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 14 APRIL 2016

Alleged dispute concerning whether or not the entry by Mr Williams on to the tug the Mallina was authorised by section 484 of the Fair Work Act 2009 – request for revocation of an order for the production of documents.

[1] On 12 February 2016 the Australian Institute of Marine and Power Engineers (AIMPE) lodged an application pursuant to s.505 of the Fair Work Act 2009 (the FW Act), through which it sought the resolution of an asserted dispute with Rivtow Pty Ltd (Rivertow) over whether persons on the tug boat Mallina, based at Port Headland, were employees such that the AIMPE should be permitted to utilise entry rights to that boat pursuant to s.484 of the FW Act.

[2] Whilst this decision deals specifically with a dispute over the production of various documents sought by the AIMPE, it is appropriate that I set out some of the background to the application and the initial proceedings before the production of documents issue can be addressed.

[3] In its initial application, the AIMPE sought an order which would allow officers of the AIMPE holding a permit issued under Division 6 of Part 3-4 of the FW Act, to enter the tug Mallina in accordance with that part of the FW Act. The AIMPE made the application on the following grounds:

“1. The AIMPE is entitled to represent the interests of an unlimited number of marine engineers under rule 4 of the organisation’s rules.
2. Mr Andrew Williamson is an officer of the AIMPE. Mr Williamson is also a holder of a permit issued under Division 6 of Part 3-4 of the Fair Work Act 2009.
3. The Respondent is the occupier of the premises; the tug the Mallina.
4. There are people employed as marine engineers who work on the Mallina.
5. Officers of the AIMPE holding permits issued under Part 3-4 of the Fair Work Act 2009 are entitled to enter the premises in accordance with that Part.
6. Mr Williamson has given notice of his intention to enter the premises consistent with the requirements of Part 3-4 of the Fair Work Act 2009.
7. The Respondent has refused Mr Williamson entry to the premises and by doing so are in breach of ss 501 and 502 of the Fair Work Act 2009.” 1

[4] The matter was the subject of a directions conference on 24 February 2016. As a consequence of directions issued on 29 February 2016, both the parties were required to provide an outline of their submissions and witness statements for any witnesses to be called. The matter was set for hearing on 6 April 2016.

[5] I have briefly summarised the AIMPE submissions in the following terms. The AIMPE assert that it is entitled to represent the industrial interests of marine engineers and that, on 10 February 2016, Rivtow had employed a marine engineer on the Mallina. The AIMPE asserted that it’s contention that this marine engineer was an employee, was supported by the provisions of the FW Act and various authorities. The AIMPE asserted that Rivtow had engaged marine engineers under what it described as a “triangular contracting arrangement”. 2 The AIMPE asserted that:

“31. Rivtow employs its marine engineers under a complex arrangement. That arrangement involves two primary contracts. The first is a Management and Procurement Agreement, the second is a Partnership Agreement.

32. In short, Rivtow requires its workers to split into groups. Each group then has to set up three structures: a company, a trust and a partnership.

33. The workers in each group are directors of the company. The company is the corporate trustee of the trust. The workers are beneficiaries under the trust.

34. The workers in each group are also required to enter into a partnership arrangement with each other. The company, in its capacity as a trustee, then enters into a contract with Rivtow and a contract with the partnership.

35. The Management and Procurement Agreement is the contract between Rivtow and the corporate trustee. The Partnership Agreement is the contract between the corporate trustee and the partnership of the workers. 3

[6] The AIMPE asserted that the degree of control which Rivtow is able to exert over the marine engineers indicates that they are employees. 4 Whilst the AIMPE acknowledged that there were certain indicia which indicated that the marine engineers may be independent contractors, the Fair Work Commission (the FWC) should determine that they are employees for the purposes of the exercise of the right of entry provisions in Part 3-4 of the FW Act.

[7] For the sake of completeness it is appropriate to note that the AIMPE submissions made various assertions relative to alleged breaches of sections in Part 3-4 of the FW Act. Additionally, these submissions asserted that the marine engineers on the Mallina should be regarded as persons who were “usually employees”.

[8] The AIMPE asserted that ss.505 and 595 of the FW Act establish the jurisdiction for the FWC to deal with a dispute over the operation of s.484 through an arbitration on the issue of whether the marine engineers on the Mallina are employees for the purpose of s.484 of the FW Act. 5

[9] A witness statement was provided for the AIMPE by a Senior National Organiser, Mr Williamson. Whilst I have summarised the evidence of Mr Williamson later in this decision, it is appropriate that I note that Mr Williamson provided two unsigned contracts in support of the AIMPE contention that the persons operating the tug should be regarded as employees.

[10] The submissions for Rivtow can be briefly summarised in the following terms. Rivtow asserted that the FWC did not have the jurisdiction to grant the orders sought by the AIMPE in as much as these related to the exercise of judicial power. A substantial component of the initial Rivtow position in this respect related to the AIMPE contentions that Rivtow had breached the obligations set out in Part 3-4 of the FW Act. Rivtow asserted that there were no employees on the Mallina. It advised that it had a contract with BHP Billiton (Towage Services) Pty Ltd (BHP) to operate tug boats at Port Hedland. Rivtow advised that it had subcontracted Indian Ocean Towing Pty Ltd as trustee for the Barrels and Brakes Unit Trust trading as Indian Ocean Towage Company to assist in operating the tugboats. Furthermore, Indian Ocean Towage Company had subcontracted the Indian Ocean Escort Towage Partnership (the Partnership) to assist in the provision of these services. The services to be provided by the Partnership include the operation and maintenance of the Mallina which was crewed by partners of the Partnership. Rivtow asserted that a fundamental precondition for entry rights under s.494 of the FW Act was not met in that there were no employees performing work on the Mallina. Rivtow confirmed that, on 8 February 2016, it had objected to the proposed exercise of entry rights.

[11] Rivtow provided a witness statement made out by its General Manager,Mr Pollack. I have not further addressed this statement because it has not yet been admitted into evidence.

[12] On 1 April 2016 I granted an Order (the Production of Documents Order), requested by the AIMPE, for the production of documents consisting of:

● The Management and Procurement Contract between Rivtow Marine Pty Ltd and Indian Ocean Towing Pty Ltd.
● The Partnership Service Contract between Indian Ocean Towing Pty Ltd and Indian Ocean Escort Towage Partnership.

[13] This material was required to be provided on 6 April 2016. Consistent with normal arrangements to this effect, the Order provided the capacity for Rivtow to object to the Order. Rivtow advised of its objection in this respect on 4 April 2016. The parties were advised that this issue would be considered in the hearing on 6 April 2016.

[14] Before detailing the submissions relative to the maintenance of the Production of Documents Order, I have briefly summarised the proceedings to date. In the course of this hearing the AIMPE advised that it no longer sought findings relative to any breach of the provisions of the FW Act and did not press its contention that any marine engineers on the Mallina should be regarded as persons who were usually employees. The AIMPE advised that it simply sought a finding that there was an employee on the Mallina such that entry rights pursuant to s.484 existed. The AIMPE asserted that the nature of the arrangements reached relative to the crew on the Mallina indicated that these persons were employees. The AIMPE acknowledged that in this regard it needed to demonstrate arrangements relative to payment of those persons, including the extent to which payments made to them recognised wages, travel, accommodation and other issues. To meet that requirement the AIMPE advised that it was seeking detailed information about the contractual arrangements but that it was prepared to regard that information as confidential.

[15] Mr Williamson’s evidence referred to media statements which announced that Rivtow had replaced the previous tugboat provider at Port Hedland. This information did not detail any current crewing arrangements. Mr Williamson’s evidence was that a member of the AIMPE, who was not currently involved in the operation of the Mallina, had provided him with an unsigned and incomplete Management and Procurement Contract 6 purporting to be a draft contract between Rivtow and a Trust and that he understood that this draft contract reflected the type of arrangement which had been entered into between Rivtow and a Trust involved in the operation of the Mallina. Further, Mr Williamson provided an unsigned and incomplete Partnership Service Contract7 which referred to a Management and Procurement Contract between Rivtow and the Trust Manager. Mr Williamson confirmed that he had no first-hand evidence with respect to any contractual arrangements in operation relative to the Mallina. Mr Williamson confirmed that a member of the AIMPE had advised him that a particular member of the AIMPE was working on the Mallina on 10 February 2016, which was the day upon which he had sought entry rights. Mr Williamson had not been in contact with that member or any other person on board the Mallina.

[16] Mr Williamson confirmed that he was aware of a presentation made to various members of the AIMPE in late 2015 by Mr Fogliano, of counsel, at the request of the AIMPE in order to provide advice to those members about partnership and trust arrangements.

[17] Rivtow contended that, no dispute over the exercise of s.484 rights had been made out, and that, in the absence of any such dispute there was no jurisdiction established by s.505 of the FW Act.

[18] I do not accept this proposition. The Rivtow response to the s.484 right of entry notice 8 states:

“I am writing regarding the Form 2 Entry Notice which was emailed by you to myself and Rivtow Marine (Rivtow) Administration on 3 February 2016 (Entry Notice).

The Entry Notice states that you propose to board the tug “Mallina” to exercise a right of entry under section 484 of the Fair Work Act 2009 (Cth) (FW Act).

Please note that there are no person employed to work on the tug “Maiilina” whose industrial interests your organisation is entitled to represent. This means that any attempt to board the vessel as indicated by your Right of Entry Notice will result in trespass by you and breaches of civil remedy provisions of Chapter 3, Par 3-4 of the FW Act by you and your organisation.

In relation to the Entry Notice, I particularly draw your attention to section 503 of the FW Act. Rivertow reserves all of its rights.” 9

[19] Mr Williamson’s evidence was that he understood from this correspondence that he was not welcome aboard the Mallina and, as a consequence, elected not to attempt to exercise entry rights.

[20] The Rivtow submissions are that s.487 of the FW Act requires that the preconditions for a s.484 entry notice must be met and that, a fundamental requirement in this regard is that there must be employees who perform work on the premises.

[21] I think it is more than tolerably clear that Rivtow has not agreed to allow Mr Williamson to board the Mallina. Accordingly, I think it is clear that there is a disagreement between Rivtow and the AIMPE over the operation of that section which falls within the scope of matters that might be dealt with by the FWC pursuant to s.505. To this extent I am not satisfied that the FWC lacks the jurisdiction to further consider this matter.

The Order for the Production of Documents

[22] Rivtow provided written submissions in support of its contention that the Order for the Production of Documents should be revoked. These can be briefly summarised in the following terms. Rivtow assert that the proper application of the authorities 10 relevant to orders for the production of documents of this nature required the adoption of the following approach:

“9. In summary, the key principles relevant to the exercise of the Commission’s power to compel the production of documents include the following.

(a) 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.

(b) The request cannot be oppressive nor can the demand for production be 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.

(c) A balance must be undertaken between the competing interests of privacy of the Respondent and third parties and the public interest in the due administration of justice and ensuring that all material relevant to the issues in dispute is available to the parties to enable them to advance their respective cases.” 11

[23] Rivtow asserts that the documents required in the Order for the Production of Documents have not been established to relate to the work performed by an engineer on the Mallina. Further, that these documents represent a “fishing expedition” which is without foundation. Rivtow assert that the documents sought are confidential contracts which could be used for ulterior purposes in a manner which would disadvantage the parties to those contracts.

[24] The AIMPE asserts that the Order for the Production of Documents is necessary because it will enable more detailed consideration of the arrangements applicable to the crew of the Mallina. Further, that information about actual payments to crew members and the basis for those payments was necessary to determine whether those persons were properly characterised as employees. I note that the AIMPE indicated that it was prepared to commit to treating this information as confidential.

[25] As a starting point, I have adopted the position that consideration of the revocation of the Order for the Production of Documents must involve the same approach to be applied in the event of a dispute over whether such an Order should be made in the first case. The position adopted in Dorajay Pty Ltd v Aristocrat Leisure Limited 12 supports this position.

[26] Section 590 of the FW Act states:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[27] The approach set out by Munro J in Re Clerks 13 and that adopted by the Federal Court in McIlwain v Ramsey Food Packaging Pty Ltd14 confirm that issues of this nature need to be determined in the context of the relevant legislation and the particular circumstances. Before considering the principles in those matters which were endorsed by Jones C in Australian Nursing Federation, I have briefly considered Part 3-4 of the FW Act.

[28] Section 480 sets out the objects of this Part of the FW Act in the following terms:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[29] Division 2 of this Part establishes entry rights. Subdivision A relates to the exercise of entry rights to investigate suspected contraventions. The AIMPE application is not made pursuant to a suspected or alleged contravention. Subdivision AA is not relevant to this matter. Section 484 is the only section within Subdivision B and states:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”

[30] Subdivision C establishes requirements for permit holders. Division 3 relates to the exercise of State or Territory Occupational Health and Safety rights. Division 4 deals with prohibitions including obligations on both permit holders and other persons and the disclosure of various documentation. Division 5 establishes the powers of the FWC with respect to this Part. Division 6 deals with the issuing of various notices relative to entry rights and Division 7 relates to the exercise of entry rights in remote areas. Consequently, the only section of the FW Act currently relevant to this application is s.484.

[31] It appears that there is common ground between the parties to the extent that the right to enter premises established by s.484 is conditional upon their being one or more employees who perform work on the premises, and whom the AIMPE is entitled to represent and who wish to participate in those discussions. These preconditions differ from those prescribed by s.481 for the investigation of suspected contraventions.

[32] The provisions of Part 3-4, and particularly the “balance” referred to in s.480, requires that an organisation seeking to exercise entry rights for the purposes of having discussions has an obligation to establish at least a prima facie case upon which it asserts those rights are founded, before it can require substantive disclosures from an occupier of the premises concerned. The adoption of anything less than such an approach must give rise to the potential to disrupt businesses without a valid foundation.

[33] In the present case, I am not satisfied that the evidence provided as yet, by the AIMPE, establishes a prima facie case that the persons on the Mallina are employees or that these persons wish to participate in any discussions. It appears to me that the documents sought have been sufficiently clearly particularised so that they could be provided, but I am not yet persuaded that these documents will enable clarification of whether the person or persons on the Mallina are employees. In this respect it seems quite feasible that the documents sought will raises as many questions as they answer.

[34] The information before me at the present time does not establish with sufficient particularity, a link between the documents sought and the issue to be determined. Additionally, it appears to me that there is at least the strong potential for the documents sought to inconvenience other entities, such as other contracting parties who may not be directly related to the fundamental issue in dispute.

[35] Had it been the case that the AIMPE had established to me that one or more of the persons on the Mallina considered that they were employees and/or wanted to be involved in discussions with the AIMPE and/or were engaged under a contractual arrangement described by the Order for the Production of Documents, the case for the confirmation of that Order would have been clearer.

[36] I have expressed to the parties a reservation that this application may not represent the most efficient means of addressing whether or not the crew of the Mallina are employees. Nevertheless, to the extent that the application is pursued, s.505 requires that I exercise the jurisdiction to determine the application. To this extent the following observation made by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd 15 may be particularly pertinent:

“35 In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:

….

(n) the issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541.”

[37] It may well be the case that, if this matter proceeds, further evidence gives rise to a repeated request for documents of this nature, or for a refinement of any such request. However, on the material before me at the present time, I am not persuaded that the Order for the Production of Documents should stand and revoke that Order accordingly. An Order (PR579099) giving effect to this decision will be issued.

Appearances:

W McNally counsel for The Australasian Meat Industry Employees Union.

D Fletcher counsel for Rivtow Marine Pty Ltd.

Hearing details:

2016.

Perth:

April 6.

 1   Form F12, lodged 12 February 2016

 2   Exhibit A1, para 29

 3   Exhibit A1, paras 31 - 35

 4   Exhibit A1, para 37

 5   Exhibit A2

 6   Exhibit A3, Attachment AW3

 7   Exhibit A3, Attachment AW4

 8   Exhibit A3, Attachment AW7

 9   Exhibit A3, Attachment AW9

 10   see Munro J in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Print H2892, Jones C Australian Nursing Federation v Victorian Hospitals Association[2011] FWA 8756 and others such as [2013] FWA1585 [2012] FWA 1965

 11   Rivtow Marine submissions dated 5 April 2016

 12 [2005] FCA 588, para 17

 13   Print H2892, at para 2

 14 [2005] FCA 1233, paras 23 - 35

 15 [2005] FCA 1233

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