Australian Rail, Tram and Bus Industry Union v Sydney Trains

[2018] FWC 198

[2018] FWC 198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 229 - Application for a bargaining order

Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(B2017/1112)

DEPUTY PRESIDENT SAMS SYDNEY, 15 JANUARY 2018

Application for good faith bargaining orders – rail industry – negotiations for new enterprise agreements for NSW Trains and Sydney Trains and their employees – notices to produce – documents sought going to plans for restructures, efficiency proposals or cost savings – post efficiency measures – principles to be applied when dealing with notices to produce – documents sought identical to final relief sought – jurisdictional precondition – whether notices to produce abuse of process – uncontested evidence of Senior IT Manager – oppressive and onerous – breadth and scope too wide – no particularity – triplication of notices to third parties –confidentiality and commercially sensitive documents – public interest immunity – abuse of process – exercise of discretion – notices to produce set aside in whole.

BACKGROUND

[1] This is an interlocutory decision, in respect to a substantive application, under s 229 of the Fair Work Act 2009 (the ‘Act’), filed by the Australian Rail Tram and Bus Union (ARTBU) and supported by a number of rail industry Unions (identified in the list at Annexure I) and Unions NSW (collectively the ‘Rail Unions’), in which the Rail Unions seek bargaining orders against Sydney Trains and NSW Trains (the ‘Rail Entities’). The bargaining orders application was filed on 17 November 2017 and arises from negotiations between the parties for new enterprise agreements covering some 9,000 employees employed by the Rail Entities. These negotiations have been ongoing since early July 2017. For present purposes, it is necessary to observe that the bargaining orders application seeks orders under ss 230 and 231 of the Act, requiring the Rail Entities to provide:

(a) All information regarding proposals and/or plans, if any, in New South Wales Train and Sydney trains for future restructures and/or reductions in staff numbers, including due to the introduction of new technologies. This information includes the effect of such changes on employees at each location, and on grades and classification covered under the current agreement; and

(b) All information regarding savings, if any, attributable to increased efficiency and/or productivity during the period 2014-2017 (the period of the current Enterprise Agreement).

[2] The substantive application was listed for conference on 6 December 2017. However, no agreement could be reached in respect to resolving the parties’ differences as to the nature, scope and extent of the information sought by the Rail Unions. Accordingly, I issued directions for the filing and service of witness statements and outlines of submissions and listed the matter for hearing on 30 and 31 January 2018.

[3] However, on 11 December 2017, the ARTBU, on behalf of the Rail Unions, filed an F52 Application for Orders for Production of Documents, pursuant to s 590(2) of the Act. The F52 applications were to be served on the Rail Entities, Transport for NSW (‘TfNSW’) and Treasury of New South Wales (‘Treasury’)(collectively the ‘respondents’). They have not been signed or formally issued by the Commission, as advice to my Chambers indicated they would be opposed by the respondents.

[4] It would be fair to say that while the F52 applications are slightly more specific than the documents sought in the substantive application; see: para [1] above, the F52 documents all fall within the general rubric of the application to be heard on the 30 and 31 January 2018. (The significance of this observation will become more apparent later, as it is one of the grounds the Rail Entities oppose the Orders for Production.)

[5] As further background, I note that the Rail Unions have sought and were granted an application for a Protected Action Ballot order by Cambridge C on 22 November 2017. The ballot closed on 10 January 2018 with a majority of employees who voted supporting a range of proposed industrial action. I also understand than on 10 January 2018, the Commissioner relisted a s 240 application, involving the direct parties, in respect to the negotiations of their new Agreements; although I am not aware of any progress in that regard.

[6] The F52 - Applications for Orders to Produce were listed for hearing on 22 December 2017. Ms I Szumer and Mr A Rudman appeared for the Rail Unions. Mr Y Shariff of Counsel, with Mr A Woods Solicitor, appeared for the Rail Entities and Mr B Miles of Counsel appeared for TfNSW and Treasury. Mr Shariff and Mr Miles were granted permission to appear, pursuant to s 596 of the Act, as the Commission was satisfied that the matter would proceed more efficiently if the respondents were represented by lawyers. Earlier discussions between the parties resulted in some concessions from the Rail Unions. However, Mr Shariff submitted that the concessions were ‘very marginal’. The matter proceeded to hearing with one witness called for the Rail Entities, Mr Mark Stephenson, Associate Director, Security Digital Trust Risk Group Information Technology, TfNSW, who provided a witness statement and was cross examined by Ms Szumer.

SUBMISSIONS

[7] In an attempt to short circuit the proceedings, Mr Shariff raised a primary objection to the Notices to Produce on the grounds that they may constitute an abuse of process. In elaborating on this proposition, Mr Shariff referred to the s 229 originating application and the two elements there identified as requiring the production of all relevant information; see: para [1] above. The source for this request arises from an obligation under s 229(1)(b) of the Act that identifies an element of good faith bargaining being the disclosure of relevant information. Importantly, the requirements under the Act are not for all information, but relevant information, with the exception of confidential or commercially sensitive information. Mr Shariff said that what the Orders for Production now seek is essentially the final relief which is sought in the substantive proceedings.

[8] Mr Shariff referred to Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756 (‘ANF v Victorian Hospitals’) and the principles there set out by Jones C, at paragraphs 11-12, where the Commissioner highlights the judgement of Mason J in R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 (‘R v Marks’)(incorrectly cited in ANF v Victorian Hospitals) and the well known authority of Munro J in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 [Print H2892] (‘Clerks v Alcoa’), in particular the following extract:

‘It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. 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. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is 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. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.’

[9] Jones C was faced with similar circumstances as here, in that the demand for the production of documents ultimately went to the same matters in the substantive proceedings. At paragraph 44 the Commissioner said:

‘I am satisfied that if I issue Orders 8 to 28 in the Schedule to each of the Orders to Produce, I would be defeating, in large part, the purpose of the substantive proceedings in relation to the ANF’s Bargaining Order Application. This is so for two reasons:

• Matters which are to be properly determined, with the benefit of final argument and evidence, in substantive proceedings under s.228(1)(b) will be obviated by the issue of such orders under s.590(2)(c). For example, a determination whether the information was relevant (and not confidential) within the meaning of s.228(1)(b) arising out of the substantive proceedings will be rendered otiose if the same information is required to be produced and available for inspection under s.590(2)(c); and

• If Paragraphs 8 - 28 of the Schedule to the Orders to Produce were issued under s.590(2)(c), the relief sought by the ANF in its Bargaining Order Application would be effectively delivered before the substantive proceedings.

Having regard to these considerations, I exercise my discretion under s.590(2)(c) of the Act and refuse to issue Paragraphs 8 - 28 of the Schedule of each of the three Orders to Produce.

Consequently, I have determined not to issue any of the three Orders to Produce sought by the ANF against the VHIA, the Department of Health and the Department of Treasury and Finance.’

[10] Mr Shariff submitted that what the Rail Unions are seeking to do, via the Orders for Production is to get all the documents that they claim exist and they claim ought to have been provided in answer to the request, when that is the very matter which is in issue in the substantive proceedings. The Rail Unions cannot use these Notices to Produce as a means of defeating the fundamental condition precedent that the Rail Entities have not met the good faith bargaining requirements of the Act – which will be strenuously resisted in the substantive proceedings.

[11] In addition, Mr Shariff said that the requests in the Notices to Produce actually go beyond the scope of what is sought in the good faith bargaining order application. Mr Shariff reiterated that the ultimate issue is whether the Rail Entities have met the good faith bargaining requirements, and unless the Rail Unions establish that question, one does not get to the production of documents; see: Association of Professional Engineers, Scientists and Managers, Australiav BHP Coal Pty Ltd [2012] FWA 4435 (‘APESMA v BHP’) at paragraphs 90-95.

[12] Mr Shariff added that some of the categories of documents go to plans about restructures in the future. This would catch every ‘whimsy’ or ‘thought bubble’ within a large organisation in circumstances where the proposal or idea may go nowhere within the hierarchy of the Rail Entities.

[13] Mr Shariff was also critical of the lack of particularity in many of the categories of documents which use the same expression:

‘Copy of document and/or any other material and/or presented.’

This expression is so wide and oppressive as to place an almost impossible onus, not to mention, significant cost on the Rail Entities to cull through thousands of documents to establish even if they fall within one of the categories identified.

[14] Mr Miles supported Mr Shariff’s submissions and made two further points:

1. What is sought here is not ‘delaying the inevitable’ (as I may have suggested), but is in reality pre-empting the Commission’s consideration of the substantive application.

2. TfNSW and Treasury are not named as respondents in the substantive proceedings. The Notices to Produce are oppressive when they triplicate what is sought from the Rail Entities.

[15] As to the powers of the Commission to inform itself of any matter as it sees fit (s 590 of the Act), Mr Miles put that that power cannot be exercised where there are statutory restrictions on the Commissions’ power to make orders under s 230 of the Act. The statutory requirement for a finding of whether or not a good faith bargaining order is necessary, is a condition precedent before the nature and scope of an order for any requirement to provide information or documents is considered.

For the Rail Unions

[16] Before responding, Ms Szumer tendered amended draft orders sought by the Rail Unions (MFI1). While Ms Szumer acknowledged that the Orders for Production are the ‘precise documents that would be the subject of a good faith bargaining order if made in the substantive proceedings,’ she distinguished ANF v Victoria Hospitals. In that case there was no contention that the documents do not exist. The Rail Entities here maintain the documents do not exist and it is that issue which would need to be tested in the substantive proceedings through hours of cross examination. For the efficient administration of justice, the Commission should make the orders now to avoid unnecessary wasted time. Ms Szumer denied these proceedings are ‘circular’ and if these orders are made, the matters to be determined in the substantive hearing would be obviated. She stressed that inspection of and access to documents can be restricted.

[17] As to the arguments of Mr Miles, Ms Szumer said that the orders sought were against his clients, because if Treasury and TfNSW have these documents, then the Rail Entities must have them.

[18] In reply, Mr Shariff submitted that Ms Szumer’s opening acknowledgment is the end of the matter – the Order for Production cannot be made; see: para [16] above. The Rail Unions bear the onus of establishing a breach of the good faith bargaining requirements. It is entirely appropriate that cross examination of witnesses be undertaken to discharge that onus, or otherwise. Mr Shariff said that Ms Szumer’s second argument about scope and confidentiality defeats the anterior issue, because s 228(1)(b) makes obvious that if the documents are confidential, or commercially sensitive, they do not get produced.

[19] While the Commission was invited to make a ruling on the respondent’s primary objection, I decided that full arguments on all relevant matters going to the Notices to Produce, should be put to the Commission.

Evidence of Mr Mark Stephenson

[20] Mr Stephenson has 30 years IT experience, 15 of which has been in senior IT management positions. In his statement, Mr Stephenson said that in his experience, information/discovery requests have tended to be individually directed or to groups of individuals. This was the first time he had received a request on this scale, across multiple document management systems. It was Mr Stephenson’s evidence that the Rail Entities use the following four document management systems:

1. The Total Records and Document Management System (TRIM);

2. The Group Drives (Group Drives);

3. An email management system for incoming and outgoing emails (Enterprise Vault); and

4. Share Point Drive (Sharepoint).

[21] Administrative responsibility for these systems rests primarily with TfNSW. Mr Stephenson set out details of each of these systems and their functions in capturing and storing different types of information and documents.

[22] Mr Stephenson set out the membership of the search allocation teams and the search parameters for the requests for Category 6 in Sydney Trains proposed Order and Category 7 in NSW Trains proposed order. These were undertaken by using key words (such as ‘savings’ or ‘efficiencies’) which are then progressively narrowed down to obtain the most accurate results for each category. The search results were annexed to his statement.

[23] For each of the above four systems the search results’ summaries reveal:

• Share Point Drive – Category 7 NSW Trains: 392 documents and Category 6 Sydney Trains: 4,322 documents.

• TRIM – Category 7 NSW Trains: 6,617 documents and Category 6 Sydney Trains: 12,113 documents.

• Enterprise Vault – Category 7 NSW Trains (2 key phrases): 110 and 677,678 results respectively; Category 7 NSW Trains (4 Key phrases over 2 different periods): 410 and 7,337 results and 0 and 1,830 results respectively.

[24] After detailing some of the complications and duplication inherent in the requests, covering only 2 categories, Mr Stephenson said:

‘70. In total, there are 25 categories of documents sought in the various NSW Trains and Sydney Trains Draft Orders for Production (and potentially an additional 2 more). Based on the information gathered, I have assumed that, at a minimum, each of the 23 remaining categories may require:

(a) approximately 48 individual searches (including filtering) to identify documents that respond to that category (being the lower number of searches that the Test Searches required); and

(b) at least 50 minutes to conduct searches for documents that respond to that category in TRIM (being the average amount of time taken to conduct the Test Searches);

(c) a potential average of 4 hours to conduct searches (including filtering) that respond to that category in SharePoint (being the lesser amount of time taken to conduct the Test Searches); and

(d) at least 48 hours to conduct searches that respond to that category in Enterprise Vault (being the lesser amount of time estimated to conduct the Test Searches).

71. I am unable to assume how long it may take to conduct searches that respond to that category in Group Drive.

72. If this assumption is correct, in respect of the NSW Trains and Sydney Trains Draft

Orders for Production:

(a) approximately 1,104 separate searches may need to be conducted; and

(b) it would take approximately:

(i) 19 hours to search TRIM;

(ii) 92 hours to search SharePoint; and

(iii) 46 days to search Enterprise Vault.

73. I am aware the TfNSW Hosting Team developed a methodology to enable the Group Drives to be searched. However, as at 9 am this morning (20 December 2017), I have become aware that some results on some of the searches have been provided to me. Therefore, without all of the searches being returned, I cannot say with any specificity how long Group Drive searches will take.

74. Based on the information we currently have, this equates to a total estimate of approximately:

(a) 111 hours to conduct searches that respond to all categories in the NSW Trains and Sydney Trains Draft Orders for Production in TRIM and SharePoint;

(b) 46 days to conduct searches to identify documents that respond to all of the categories in the NSW Trains and Sydney Trains Draft Orders for Production in the Enterprise Vault.

75. Any estimate for the Group Drives would need to be added to these figures.’

[25] Mr Stephenson said that as the requests go to four different entities, coordination will need to be done with additional time required. He then said:

‘Further, based on my experience, I believe that it may take the following estimated amounts of time to extract the relevant documents from each system, once they have been identified:

(a) TRIM – 3 full time equivalent days to extract and copying the search results onto an encrypted storage;

(b) SharePoint – assuming that approximately 4 500 documents were required to be downloaded to encrypted sotage, and that would take up to 2 minutes per document to download (depending on its size), this would amount to approximately 150 hours; and

(c) Enterprise Vault – for results of a few hundred emails or less, this would take approximately 15 minutes to extract. However, for results in about 6 000 emails, such an extraction would take up to a full day.

Again, based on the lack of search results, I am unable to estimate how long the Group Drives search results would take to be extracted.

Once the documents are extracted onto one or more encrypted drives (be it information encrypts or the drive itself is encrypted), the documents could be reviewed by an individual for duplication, relevance, commercial sensitivity, and confidentiality.’

[26] In cross examination, Mr Stephenson said it was necessary in programming the searches he had undertaken, to make modifications to the search parameters. For example, Enterprise Vault is a vault of all emails, in and out of TfNSW. It is not an email system. A search can be narrowed down to emails of individuals or groups of individuals. Ownership can be identified, if documents are tagged correctly. However he added that Enterprise Vault does not allow the search of documents which are attached to emails. It is assumed these exist somewhere else. Searches can be undertaken by using a persons’ name.

[27] Mr Shariff objected to this questioning on the grounds that the Notices to Produce make no attempt to limit the orders by reference to name, person, or location.

Further Submissions

For the respondents

[28] Mr Shariff dealt with the general principles applicable to applications of this kind by reference to the ANF v Victorian Hospitals decision. These include:

• Documents for production must be identified with reasonable particularity. The category of documents must not be so wide so as to be oppressive;

• The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for the purpose of fishing or for the purpose of determining a preliminary question of whether the party has a supportable case;

• The test for relevance does not require the party to demonstrate direct relevance;

• The existence of a legitimate forensic purpose in the production of the documents; and

• Does the material sought by the subpoena have an apparent relevance in a prescriptive or (indistinct) sense, and; does the subpoena have a legitimate forensic purpose to the extent from the perspective of the party issuing the subpoena and; secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena.

[29] Mr Shariff referred back to the orders sought in substantive proceedings; see: para [1] above. He then turned to the categories of documents to demonstrate that they are so broad; are not confined to particular documents or individuals; and/or are irrelevant to the information requests originally sought. The other difficulty was that the categories seek documents about anything in planning or proposed which may never come to light. Mr Shariff said that the formulation of phrases such as: ‘copy of any document and/or any other material’ was devoid of any reasonable particularity. Other categories went beyond the requests for information. Documents are also said to include ‘source documents’, without identifying what that term means. Draft versions of documents were also sought which just demonstrated ‘discovery in the extreme,’ without any attempt to confine or particularise these documents. Mr Shariff noted that the category seeking documents in relation to any investment over a million dollars between 2017-20, was in no way referrable to the original limited requests for information about future restructures or reductions in staff.

[30] In summary, Mr Shariff went back to his primary submission that the application is an abuse of process because, in essence, it is seeking the final relief through the ‘back door’, without establishing the jurisdictional precondition. The categories do not have any legitimate forensic purpose because they are disconnected to the original requests for information. The evidence of Mr Stephenson demonstrated that the notices were just so onerous as to be absurd.

[31] Mr Miles supported Mr Shariff’s submission that the oppression point is not just about the number of documents; they have to be searched to ascertain existence; sifted through to determine whether they meet the criteria; and there is then questions of confidentiality, commercial sensitivity and public interest immunity for his clients. Mr Miles contended that the 24 categories, with numerous sub categories, were excessive and oppressive. He also noted that the notices to his clients are the same as those directed to the Rail Entities, leading to requests in triplicate, with no explanation why this is necessary, or relevant.

[32] Mr Miles further submitted that there was no evidence that Treasury is going to know more about the operational impact of proposals, than the Rail Entities themselves. He further noted the breadth of the exercise contemplated at this time of year, with the majority of staff not returning before 8 January 2018.

[33] Mr Miles highlighted the principles in matters of this kind in respect to issues of confidentiality being relevant at the inspection stage; see: Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal Pty Ltd [2005] AIRC 799; [Print 962479] and National Employers Mutual General Insurance Associated Limited v Waind (1979) 141 CLR 648. Here however, there can be no legitimate forensic purpose in seeking confidential information, when that is not required under the good faith bargaining requirements of the Act.

[34] Mr Miles emphasised the huge amount of work involved in relation to assessing claims of public interest immunity and the requirements on the Commission to balance the public interest in the applicants having access, against the public interest in preserving secrecy or confidentiality.

[35] Mr Miles said that what is being sought is discovery against third parties. This has been recognised by the courts as an abuse of the process. In this case, the Rail Unions have not filed any evidence, nor have they demonstrated that orders against third parties are necessary to facilitate a just resolution of the proceedings quickly, inexpensively, and efficiently; see: s 577 of the Act.

For the Rail Unions

[36] Ms Szumer posited a general submission covering all the material sought as follows. The question is not if the information is relevant to the good faith bargaining application; relevance for the purposes of s 590(2) of the Act goes to the question of whether the documents throw light on an issue that might arise in the substantive proceedings.

[37] Ms Szumer submitted that the issue of confidentiality and commercial sensitivity is treated differently in the context of s 228(1)(b) of the Act compared to Orders for Production. This should not be grounds for not making Orders for Production. It is not necessarily the case that documents are commercially sensitive or confidential just because the Rail Entities assert this to be so. It must be open to the Rail Unions to challenge this assertion.

[38] As to public interest immunity, Ms Szumer put that the documents sought do not relate to matters of State security or police information and do not prejudice the proper functioning of Government. The Rail Entities operations are paid for by the public purse and nothing injurious to the public interest would result from the information being disclosed. Ms Szumer relied on s 130 of the Evidence Act and noted that the Unions had removed the category of ‘Ministers Packs’ from the documents sought.

[39] Ms Szumer argued that the purposes of seeking documents from Treasury and TfNSW was to ensure that the orders were complied with, given the decision making structure that exists in respect to the Rail Entities and TfNSW and Treasury. She acknowledged that if the third parties do not have the information, it is unlikely the Rail Entities will have it.

[40] As to the orders being too vague and too broad, Ms Szumer identified the narrowing of the categories to particular time parameters and specific content. In any event, she posited that ‘a bit of common sense’ is needed to be applied to the orders; simply because the Rail Unions do not know the title of documents does not mean the Rail Entities misunderstand what is being sought. Moreover, identifying sub categories further narrows the categories sought.

[41] Ms Szumer rejected Mr Shariff’s and Mr Miles’ submissions that the orders go beyond the original requests for information. She said the documents sit firmly within the original request. Documents were not sought which related to ‘whimsical’ ideas or ‘thought bubbles’, but went to specific reform proposals in coming years. Requests for information for the years 2014-2017 concern reforms already undertaken and their associated savings and efficiencies. Savings and efficiencies are part of the information which informs the numbers and extent of the reductions in staff.

[42] Ms Szumer submitted that investment documents were sought for the same reason – proposals for investment and expenditure must include a business case, involving labour costs which may mean reductions in labour.

[43] In commentary on Mr Stephenson’s evidence, Ms Szumer conceded he undertook a very thorough and professional job, but he was asked to undertake the wrong exercise. Asking for documents containing key words such as ‘savings’ or ‘efficiency’ was the wrong approach. A bit of business logic was necessary; the Rail Entities cannot start from the position that they have no clue what is being sought, or where it can be found. It is not about looking for documents involving thousands of employees. Rather, it is obvious that the information relates to a limited number of senior managers.

[44] In answer to my question as to why the notices were not then directed to specific senior persons in management, Ms Szumer suggested the notices could be redrafted so as to be directed to the Executives of the Rail Entities. However, if it was too late to amend the orders sought, it was incumbent on the Rail Entities to look for the information, where it may obviously be located.

[45] In reply, Mr Shariff suggested this last proposition demonstrated the ‘circularity’ of the Rail Unions approach. The Rail Unions must demonstrate that whatever information is provided was insufficient for the good faith bargaining requirements to be met. To suggest a further narrowing, on the last day before the Xmas/New Year break, is unhelpful and may ultimately be an outcome of the substantive proceedings. Mr Shariff put that just saying ‘apply a commonsense business approach’, ignores the coercive force of the Commission issuing orders of this kind. His clients are bound to produce all documents contemplated by the orders. He stressed the orders sought are not narrow or limited by department, person or executive member.

[46] In respect to Ms Szumer’s submission on public interest immunity. Mr Shariff said that her submission was wrong, as a matter of law. In any event, APESMA v BHP rejected an order that there was confidential information, because it needs to be established as a matter of fact, as part of the good faith bargaining hearing. Mr Miles supported this submission and referred to Sankey v Whitlam (1978) 142 CLR 1. Mr Miles said that papers brought into existence for the purpose of preparing a submission to Cabinet, fall within this category. He added that Ms Szumer’s submission that 15 Executives of the Rail Entities might hold all the documents being sought, only reinforces the abuse of process when the notices are so widely directed to Treasury and all of TfNSW.

[47] Finally, Ms Szumer accepted that the issue of a return date of 10 January 2018 might need to be revisited if a decision of the Commission was not available before that date.

CONSIDERATION

[48] This interlocutory decision requires consideration of the relationship and intersection of s 590(2) and the good faith bargaining provisions of the Act. I set out below these provisions.

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).

Sections 228-230 read:

Section 228 - Bargaining representatives must meet the good faith bargaining requirements

(1)  The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a)  attending, and participating in, meetings at reasonable times;

(b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e)  refraining from capricious or unfair conduct that undermines freedom of

association or collective bargaining;

(f)  recognising and bargaining with the other bargaining representatives for the

agreement.

Note:          See also section 255A (limitations relating to greenfields agreements).

(2)  The good faith bargaining requirements do not require:

(a)  a bargaining representative to make concessions during bargaining for the agreement; or

(b)  a bargaining representative to reach agreement on the terms that are to be included in the agreement.

Section 229 - Applications for bargaining orders

Persons who may apply for a bargaining order

(1)  A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

Multi-enterprise agreements

(2)  An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3)  The application may only be made at whichever of the following times applies:

(a)  if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i)  not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii)  after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b)  otherwise--at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4)  The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a)  has concerns that:

(i)  one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b)  has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d)  considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5)  The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

Section 230 - When the FWC may make a bargaining order

Bargaining orders

(1)  The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a)  an application for the order has been made; and

(b)  the requirements of this section are met in relation to the agreement; and

(c)  the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note: See also section 255A (limitations relating to greenfields agreements).

Agreement to bargain or certain instruments in operation

(2)  The FWC must be satisfied in all cases that one of the following applies:

(a)  the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b)  a majority support determination in relation to the agreement is in operation;

(c)  a scope order in relation to the agreement is in operation;

(d)  all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3)  The FWC must in all cases be satisfied:

(a)  that:

(i)  one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b)  that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

[49] Although I have heard the parties’ full arguments as to whether the Commission should make the amended Orders for Production (MFI1), I am satisfied that it is only necessary to determine this matter on the primary submission of Mr Shariff and supported by Mr Miles on behalf of the respondents.

[50] Despite Ms Szumer’s valiant submissions opposing the respondents’ primary submission, I do not consider it possible to overcome the proposition that it is not open to seek, through Notices to Produce, the very relief which is sought in the substantive proceedings to which the Notices to Produce relate. I note Ms Szumer’s candid observation that the documents being sought are the ‘precise documents that would be the subject of a good faith bargaining order if made in the substantive proceedings.’

[51] Mr Shariff described the Orders to Produce as an abuse of process, ‘because in essence it is seeking the final relief through the ‘back door’ without establishing the jurisdictional precondition.’ In my view, this is an appropriate characterisation of what the Rail Unions seek through the Notices to Produce. That jurisdictional precondition is to be found by particular reference to ss 228 and 230 and in particular ss 229(4) and 230(3) and (4), which I repeat below with emphasis:

‘Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

…

Good faith bargaining requirements not met

(3) The FWC must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives

(ii) for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(iii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify). (My emphasis)

[52] As mentioned earlier, in the substantive proceedings the Rail Unions seek orders from the Commission that sub section (1) (b) of s 228 has not been met, because it said that the Rail Entities have not disclosed relevant information in a timely manner (or at all). It is that question which establishes, or otherwise whether s 230(3) has been met. It is the jurisdictional touchstone before any good faith bargaining orders can be made as a matter of the Commission’s discretion.

[53] In other words, before any good faith bargaining orders can be made, the Commission must make a finding that sub section 228(1) (b) has not been met, in accordance with s 230(3). In simple terms, if the Notices to Produce seek the same relief as sought in the substantive proceedings, it makes neither logical sense, nor is it permissible under the statutory scheme, that such Notices to Produce can be granted, in the absence of a specific finding under s 228(1)(b). Obviously, at this point no such finding has been considered, much less made.

[54] Jones C, put it this way in ANF v Victorian Hospitals at [44]:

‘I am satisfied that if I issue Orders 8 to 28 in the Schedule to each of the Orders to Produce, I would be defeating, in large part, the purpose of the substantive proceedings in relation to the ANF’s Bargaining Order Application. This is so for two reasons:

• Matters which are to be properly determined, with the benefit of final argument and evidence, in substantive proceedings under s.228(1)(b) will be obviated by the issue of such orders under s.590(2)(c). For example, a determination whether the information was relevant (and not confidential) within the meaning of s.228(1)(b) arising out of the substantive proceedings will be rendered otiose if the same information is required to be produced and available for inspection under s.590(2)(c); and

• If Paragraphs 8 - 28 of the Schedule to the Orders to Produce were issued under s.590(2)(c), the relief sought by the ANF in its Bargaining Order Application would be effectively delivered before the substantive proceedings.’

[55] I respectfully agree with the Commissioner’s observations. I do not accept Mr Szumer’s submission distinguishing ANF v Victorian Hospitals from this case in that the Rail Entities maintain the documents do not exist. It is irrelevant to the jurisdictional precondition whether one party contests claims that documents do not exist. That is one of the real issues to be determined through properly adduced and tested evidence in the substantive proceedings.

[56] Even if I had been satisfied that the Notices to Produce were jurisdictionally sound, I would not have made the Orders for Production on discretionary grounds, given that there was much force in the respondents’ submissions that:

(a) The notices were so wide, and lacking in specificity and particularity, as to be oppressive and unreasonable; see: Commissioner for Railways v Small 1938 SR (NSW 564), ANF v Victorian Hospitals at 30-36, APESMA v BHP at 95;

(b) The Notices for Production were not an exercise to obtain evidence to support a case (the substantive proceedings); rather it is an exercise to displace and render largely irrelevant, the substantive proceedings; see: ANF v Victorian Hospitals supra above.

(c) Given the belated suggestion of Ms Szumer that the Notices to Produce could be narrowed to a small cohort of senior executives, (thereby refuting the Rail Entities claim that the notices would require searching, sorting and identifying thousands of documents), this must be an acknowledgement that the Notices to Produce are oppressive and onerous.

(d) Issues of confidentially and commercially sensitive information are exceptions where, under s 228(1)(b), there is a contest as to whether documents are exempted. This is a matter to be dealt with in the substantive proceedings, based on properly tested evidence.

[57] In addition, section 229(4) requires that the Rail Unions (the bargaining representatives) may only apply for a good faith bargaining order if they have given written notice setting out those concerns to the relevant bargaining representatives (the Rail Entities) and given the bargaining representatives a reasonable time to appropriately respond to those concerns. There is no dispute that these concerns are set out in the RTBU’s letter of 10 November 2017 and subsequently repeated exactly in the Rail Unions’ F32 application for a Good Faith Bargaining Order.

[58] What is plainly apparent to me is that the scope and breadth of the Notices to Produce go beyond that original request, or at the very least, were different to what was said to be the Rail Unions’ concerns in the 10 November letter. For example, it is difficult to see how information on all future investment decisions, which may include ones which create more jobs, is consistent with the trope of the original request of the Rail Entities to provide information on plans for future restructures and/or reductions in staff members.

[59] In my view it is at least arguable that it is impermissible to seek documents in a Notice to Produce which travels beyond that which is set out in the written concerns required to be made known to the opposing bargaining representatives, pursuant to s 229(4) of the Act.

[60] One category of documents includes copies of draft versions ‘of all the documents and/or other materials’. In my opinion, the draft documents are likely to have little forensic value and a proper foundation must be established to demonstrate the forensic purpose of draft documents. I agree with what Wilson C said in United Firefighters’ Union of Australia v Country Fire Authority [2016] FWC 2485 at 24:

‘I have given consideration to whether the public interest in disclosure of the documents weighs more heavily than the presumption they should be withheld. In this regard, I have taken into account the likely probative value of the documents were they to be ordered for production. I am satisfied that, on the basis of the matters required for determination by the Commission, which is ultimately whether clause 88 of the Agreement has been properly applied or not, that the public interest does not require the disclosure of the documents. The documents appear to be in draft form; whether or not their content has been or will be ultimately adopted by Government may be an interesting question, however the draft status of the document is unlikely to be a definitive issue in the Commission’s consideration. Accordingly, there do not appear to be compelling reasons for the production of the documents that would require me to give greater weight to that factor over and above the identification of the documents being properly classified as being covered by public interest immunity.’ (My emphasis)

[61] Courts and tribunals are reluctant to issue Orders for Production of documents against third parties or strangers to proceedings, unless there is a legitimate and relevant forensic purpose for doing so. Given that the notices to produce directed to the Treasury and TfNSW are identical to those directed to the Rail Entities, I struggle to see any purpose - let alone a legitimate and relevant one - for making the orders against the third parties. If the rationale for seeking such orders is an assumption that the Rail Entities may not produce all documents under a Notice to Produce Order of the Commission, and the orders against Treasury and TfNSW are a necessary ‘backup’ for nondisclosure (deliberate or otherwise), then that it is a brave proposition, which I cannot accept. As model litigants, I would expect the Rail Entities would comply completely with any order of the Commission. Indeed, I have no reason to doubt otherwise.

[62] Moreover, the Rail Unions’ arguments in respect to why the Notices to Produce are necessary against third parties are skimpy and unconvincing. In the absence of persuasive argument and relevant evidence, I am not inclined, at this stage, to make any Orders for Production, either in the terms sought, or at all, against Treasury or TfNSW.

[63] For the aforementioned reasons, I conclude that the Rail Unions amended Notices to Produce directed to the respondents as tendered on 23 December 2017 as MFI1 in these proceedings, are an abuse of process and should not be made (as they have not been issued).

[64] Alternatively, as a matter of discretion, I would refuse the application for Notices to Produce as set out in MFI1, to be issued to the respondents; see: R v Marks and Clerks v Alcoa.

[65] Liberty to apply is available to the parties in respect to any variation of the Commission’s directions or change in hearing dates which may be necessary as a consequence of this decision. Otherwise, the substantive application will be heard on 30 and 31 January 2018.

DEPUTY PRESIDENT

Appearances:

Ms I Szumer for the ARTBU.

Mr Y Shariff,of Counsel, with Mr A Woods Solicitor, Lander & Rogers for Sydney Trains and Transport for New South Wales

Mr B Miles, of Counsel, for Transport for New South Wales and Treasury

Hearing:

2017

Sydney:

22 December

Printed by authority of the Commonwealth Government Printer

Annexure I

•  "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch

•  Association of Professional Engineers, Scientists and Managers, Australia, The-Local Government Engineers Association of NSW Division

•  Unions NSW

•  Australian Municipal, Administrative, Clerical and Services Union-New South Wales and ACT (Services) Branch

•  Australian Workers' Union, The - New South Wales Branch

•  Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch

•  Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

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