Bianco Walling Pty Ltd T/A Bianco Precast
[2020] FWC 2995
•9 JUNE 2020
| [2020] FWC 2995 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 217 - Application to vary an agreement to remove an ambiguity or uncertainty
Bianco Walling Pty Ltd T/A Bianco Precast
(AG2017/5792)
BIANCO WALLING PTY LTD (GEPPS CROSS SITE) ENTERPRISE AGREEMENT 2016 - OFF SITE
Building, metal and civil construction industries | |
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 9 JUNE 2020 |
Application to vary an agreement to remove an ambiguity or uncertainty – application for an order for production of documents – order made
[1] On 27 May 2020 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Commission seeking orders that Bianco Walling Pty Ltd trading as Bianco Precast (Bianco) produce documents in advance of redetermination proceedings in which Bianco seeks orders to vary an enterprise agreement (the variation application).
[2] The production application is opposed by Bianco.
[3] Written submissions were filed.1 I heard oral submissions on 5 June 2020.
[4] This decision determines the production application.
Background
[5] The variation application was made by Bianco under section 217 of the Fair Work Act 2009 (FW Act) on 27 November 2017. Bianco sought orders, with retrospective effect, removing an ambiguity or uncertainty in the ‘Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site’ (the 2016 Agreement).
[6] On 17 September 2018, after conducting a contested merits hearing, I dismissed Bianco’s application. 2 On appeal, the first instance decision was confirmed by a full bench of the Commission.3 Bianco sought judicial review.
[7] On 24 March 2020 the Federal Court of Australia Full Court (the Court) quashed the first instance and full bench decisions and orders. 4 The variation application was returned “to compel the Fair Work Commission to exercise its jurisdiction to determine the Applicant’s application in proceeding AG2017/5792 in accordance with law”.5
[8] The variation application was allocated to me for redetermination.
[9] The Commission has currently scheduled the redetermination hearing for 15 June 2020. Directions concerning the matter have been issued.6 Those directions required Bianco and the CFMMEU to file any fresh evidence on which they intend to rely by 15 and 22 May 2020, and file written submissions by 5 June.
[10] The production application was made on 27 May 2020.
Facts
[11] For the purposes of the production application the relevant facts, drawn provisionally from the earlier proceedings, are as follows.
[12] The 2016 Agreement is a single enterprise agreement. No trade union is covered by the Agreement nor was one involved in its making. It was made on 2 September 2016. It was approved by the Commission on 31 October 2016 with undertakings. It came into operation on 7 November 2016. It remains in operation. It has a nominal expiry date of 30 October 2020.
[13] Bianco operates three divisions (Pre-cast, Structural and Civil), each as separate business units.
[14] Only employees in the Pre-cast division are employed by Bianco under the 2016 Agreement.
[15] Employees employed by Bianco in the Structural division are employed under the Concrete Products Award 2010, a modern award of the Commission.
[16] There are four predecessor Agreements to the 2016 Agreement: the 2001 Agreement, the 2004 Agreement, the 2008 Agreement and the 2011 Agreement. Each of these Agreements was approved by the relevant industrial authority.
[17] Bianco’s practice was that:
• the 2001 Agreement applied to both the (offsite) Pre-cast division and the then (on site) bricklaying work but to no other employees;
• the 2004 Agreement applied to the (offsite) Pre-cast division only and to no other employees;
• the 2008 Agreement applied to the (offsite) Pre-cast division only and to no other employees;
• the 2011 Agreement applied to the (offsite) Pre-cast division only and to no other employees; and
• the 2016 Agreement applies to the (offsite) Pre-cast division only and to no other employees.
[18] The scope clauses of each of the 2004, 2008, 2011 and 2016 Agreements are as follows:
2004 Agreement:
1.6 This Agreement will apply in the State of South Australia to all employees of BIANCO WALLING PTY LTD whilst they are performing work as defined and covered by the National Joinery and Building Trades Products Award 2002.
2008 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco employees that are engaged to work away from construction sites (ie. off-site) as labourers, panel makers, concrete finishers, crane drivers, riggers, carpenters and boilermakers at Bianco’s Gepps Cross facility (employees).
2011 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco employees that are engaged in the classifications contained in this agreement who work in Bianco’s concrete manufacturing operations, including the erection of these products on-site (employees).
2016 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco employees that are engaged in the classifications contained in this agreement who work in Bianco’s concrete manufacturing operations, including the erection of these products on-site and the installation of props and frames (employees).
[19] The titles of the aforementioned Agreements altered over this period. Whereas the 2004 Agreement was known as the Bianco Walling Pty Ltd Enterprise Agreement 2004, the 2008, 2011 and 2016 Agreements came to be described as the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement – Off Site.
[20] There was also in existence a ‘Bianco Walling Pty Ltd (On-Site) Enterprise Agreement 2011’.
Production Application
[21] The CFMMEU seeks that Bianco produce the following:
“Subject to any validly made claim for privilege:
1. Information in the nature of the identity of the drafter, or drafters, of the 2011 Enterprise Agreement;
2. Any documents in Bianco Walling Pty Ltd’s power, possession or control in the nature of:
a. Correspondence, communications, notes, memoranda or otherwise which capture information or communications relating to the drafting or ‘making’ (within the meaning of the Act) of the 2011 Agreement and / or the 2011 On-Site Agreement, including their coverage or scope and classifications and changes from the previous Enterprise Agreements, and including (but not limited to) any instructions given to the Agreement’s drafter in respect of such changes, and including (but not limited to) any notes of any meetings between representatives of the company and the Master Builders Association; and
b. Any drafts produced of the 2011 Agreement and / or the 2011 On-Site Agreement, prior to their making, including (but not limited to) any ‘template’ or other document which was used to create a draft or the ultimately ‘made’ version of that Agreement; and
c. Any drafts produced of the 2016 Agreement prior to its making, including (but not limited to) any ‘template’ or other document which was used to create a draft or the ultimately ‘made’ version of that Agreement.
For the purposes of this application:
“the 2011 Agreement” means the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2011 – Off Site (AE885414) ;
“the 2016 Agreement” means the “Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site”; and
“the 2011 On-Site Agreement” means the: Bianco Walling Pty Ltd (On-Site) Enterprise Agreement 2011.”
[22] The CFMMEU seeks an order on the grounds that:
• the documents have relevance to the determination of the variation application;
• the documents are only able to be obtained from Bianco and are within its possession or control; and
• the documents have not been voluntarily produced by Bianco.
[23] Bianco opposes the application on the following grounds:
• that, in the exercise of discretion, the CFMMEU should be denied the documents (even if relevant) because the time to have pursued them was at the merits hearing in 2018 and not upon redetermination;
• that the documents sought have no apparent relevance to the redetermination; and
• that searching and obtaining the documents sought would place an oppressive burden on Bianco.
Consideration
[24] The Commission’s power to order production of documents is contained within section 590 of the FW Act which relevantly provides:
“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:
…
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”
[25] This power extends to third party discovery.
[26] It is a discretionary power which will generally be exercised “in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”7
[27] The Commission has non-exhaustively identified the following considerations as relevant to the exercise of the discretion:8
• Apparent (not necessarily direct) relevance to the issues in dispute;
• Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
• Whether the documents are being sought for a collateral or improper purpose;
• Whether questions of legal professional privilege or confidentiality arise;
• The implications for the party concerned including the cost, inconvenience and delay associated with compliance;
• Whether compliance would reveal internal deliberations as to industrial strategy or policy; and
• The potential impact of production upon any contentions to be determined in the matter.9
Timeliness
[28] For two reasons I do not accept Bianco’s submission that the production order should be refused on the ground that the documents sought (and the facts or inferences the CFMMEU seeks to draw from such documents) are matters that should have been pursued at the merits hearing in 2018, and that it is too late to do so now.
[29] Firstly, the Court decision requires redetermination of this matter. As the earlier decisions of the Commission have been quashed, the factual narrative needs to be re-established. Facts need to be found or re-found. Whilst it is the Commission’s intention, for the purposes of efficiency, to admit by consent all evidence given at the earlier hearing, it is equally the Commission’s intention (as my directions of 30 April 2020 make clear) to provide an opportunity for either party to lead fresh evidence to the extent they wish to do so.
[30] It would appear from the submissions before me that at least two documents relating to the approval of the 2011 Agreement have been recently located by Bianco 10 and that Bianco intends to rely upon them at the redetermination. It would equally appear that the CFMMEU is intending to rely on those newly located documents plus material related to the approval of the 2011 Agreements, and possibly further documents that may be discovered should the production order be made.
[31] It is likely therefore that there will be fresh evidence at the re-determination. Allowing the parties to supplement their former evidence with fresh evidence not only provides procedural fairness but also enables the relevant narrative to be before the Commission on which findings of fact can be made or re-made.
[32] Secondly, the redetermination necessarily involves the facts (as they are to be found) being applied to the law as expressed by the Court. The Court has provided direction on the proper application of section 217. It has, amongst other observations, referred to matters the Commission may have regard to. The Court has concluded that those matters extend beyond the rules of evidence and the rules governing the interpretation of enterprise agreements:
“The consequence is that, far from being precluded from having regard to evidence of the parties common intention and to the history of cl 1.2, the Deputy President was permitted to have regard to them as part of the “equity, good conscience and the merits” of the matter”; 11 and
“by reason of his understanding that his task was one of interpretation, and thereby constrained by the Berri principles, the Deputy President did not have regard to a relevant part of the history of cl 1.2 on which Bianco had relied…That history was capable of supporting the inference that, despite its apparent width, the term “Bianco’s concrete manufacturing operations” did not apply to employees in Bianco’s Structural Division.” 12
[33] In the context of the Court having provided this direction, it would be quite unreasonable to not allow either party to reframe their case or rely on additional facts in the redetermination proceedings. Whilst it would have been possible for the CFMMEU to seek this material in the earlier proceeding, it did not do so. That it did not do so is not a reason to preclude it from now doing so upon the redetermination.
Relevance
[34] It is necessary for the CFMMEU to establish that the documents it seeks have apparent relevance to the redetermination proceedings.
[35] As noted, the Court has made it clear that, the redetermination proceedings are not constrained by the rules for the interpretation of enterprise agreements but involve a broader range of considerations such as common intention and the history of the impugned clause. Whether other relevant matters apply is a matter on which parties are entitled to make submissions according to how each frames its case.
[36] The documents sought by the CFMMEU are in the nature of historical documents. They particularly concern documents relating to making a predecessor agreement, the 2011 Agreement (Offsite). The 2011 On-site Agreement is also sought, as are earlier drafts (if any) of the 2016 Agreement.
[37] Two factors lead me to conclude that the documents sought by the CFMMEU have (subject to the terms of an order) apparent relevance.
[38] Firstly, it would appear from the submissions before me that both parties intend to rely, at least in part, on the history of clause 1.2 of the 2016 Agreement. The concept of “the history’ of that clause (or for that matter, the history of the Agreement as a whole) could be narrowly construed (that is, the history of formal approval proceedings) or construed more broadly (for example, the history of its negotiation, its common intention (if any) and the history of comparable provisions in prior agreements).
[39] In circumstances where the Court has determined that “the history of cl 1.2” is relevant I consider it would be unreasonable, at least at this interlocutory stage, to unduly constrain what that “history” means, and which historical documents may be of apparent relevance. Whilst some boundaries need to be drawn, the history of an immediately operating predecessor agreement is capable of being relevant to an impugned agreement. I am satisfied that historical documents relating to the 2011 Agreement are sufficiently connected to the redetermination proceedings to be of apparent relevance.
[40] Secondly, matters relevant to common intention have clearly been expressed by the Court as relevant. Leaving aside whether intention of a party (singular) is capable of having apparent relevance to the issues referred to by the Court, I do not accept Bianco’s proposition that the documents sought would necessarily be connected to a subjective rather than common intention simply because they may relate only to Bianco’s conduct. Like any factual matter, common intention is capable of being established by direct evidence or by relevant inferences from less direct or circumstantial evidence. It would be unreasonable, at an interlocutory stage, to consider a document solely related to the employer’s conduct or belief as having no apparent relevance to issues of common intention.
[41] I am satisfied that the documents sought have apparent relevance.
Oppression
[42] Bianco submit that the documents sought relate to historical records created between four and nine years ago. It says that such records, if any, are not in active use. Searching for them would require past IT records to be reviewed, if they exist. It also points to the time and cost of doing so. It says that this would be particularly burdensome in the context of the employer dealing with current COVID-19 contingencies and protocols.
[43] There is some merit in this submission. The burden on a party subject to a production order is a relevant consideration as to whether an order should be made and, if so, on what terms. The broader the order, and the more the order sought is in the nature of general discovery rather than production of a specific document or documents, the heavier the burden. Time frames attached to compliance are also relevant. The tighter the timeframes, the likely heavier the burden.
[44] Whilst the CFMMEU’s application is not, overall, oppressive as it relates solely to the 2016 Agreement and its immediate predecessor, the proposed order is in the nature of general discovery. It is reasonable to narrow its terms and allow a reasonable time for production.
Conclusion
[45] The CFMMEU has not identified a particular document which it knows exists. It is looking for documents which may or may not exist and which may or may not support its case.
[46] Whilst in certain circumstances this lack of particularity may be a fishing expedition, 13 I take into account the fact that the CFMMEU was not a participant in the 2011 or 2016 Off Site Agreement. It is thus, at this point, constrained by the evidence of Bianco and employees that was given in the earlier proceedings, and what is on the public record.
[47] Considering the matter as a whole, I am satisfied that it is appropriate to exercise a discretion in favour of making a production order. In light of the Court’s decision, a sufficiently sound forensic basis for seeking the material has been provided. It is not being sought for a collateral or improper purpose.
[48] However, the terms sought are too broadly framed. The CFMMEU seeks:
“Correspondence, communications, notes, memoranda or otherwise which capture information or communications…”
[49] This has potential to reveal internal deliberations as to industrial strategy or policy which are removed from matters relevant to common intention or the history of the impugned clause. Generally, internal deliberations of that kind are not the subject of production orders. 14 Such material, if it exists, would, in my view, add little if any value to the determination of this matter.
[50] I will narrow the terms of the order in the following respect. I will limit the order to “communications (not including internal deliberations as to industrial strategy or policy)”.
[51] I will also not accede to the CFMMEU’s request to order “information in the nature of the identity of the drafter, or drafters, of the 2011 Enterprise Agreement”. This is a request more akin to an interrogatory, rather than production. If the identity of a particular person or persons becomes apparent from documents produced, so be it. In any event, the identity of persons is a matter of evidence, to the extent relevant.
[52] Finally, I note that it is not in contest that the order should be subject to a validly made claim for privilege. This is appropriate.
[53] In terms of timeliness, I consider that a reasonable time should be provided for Bianco to seek out and then produce the documents the subject of this order. In all the circumstances, fourteen days is a reasonable period.
[54] It is apparent from the above that, in light of the production application and order, it is not possible to conduct the redetermination hearing on 15 June 2020 as scheduled.
[55] I will, in conjunction with the publication of this decision and order issue amended directions. The redetermination will be relisted for 13 July 2020. Bianco will be directed to produce documents (if any) by 23 June 2020. The parties will then have until 30 June 2020 to file any further evidence and written submissions, and until 7 July 2020 to put any further material in reply.
Order
[56] The terms of the order under section 590(2)(c) of the FW Act will be as follows:
“That, subject to any validly made claim for privilege, Bianco Walling Pty Ltd (Bianco) produce the following documents (if any) within its power, possession or control:
1. Communications (not including internal deliberations as to industrial strategy or policy) relating to:
1.1 the drafting or making of the 2011 Agreement and the 2011 On-Site Agreement, including their coverage, scope and classifications, and changes (if any) from previous Enterprise Agreements; and
1.2 instructions (if any) given to the Agreement’s drafter in respect of such changes (including but not limited to such communications between representatives of Bianco and the Master Builders Association); and
2. Drafts (if any) produced of the 2011 Agreement and the 2011 On-Site Agreement prior to their making, including (but not limited to) any ‘template’ or other document which was used to create a draft or the ultimately ‘made’ version of those Agreements; and
3. Drafts (if any) produced of the 2016 Agreement prior to its making, including (but not limited to) any ‘template’ or other document which was used to create a draft or the ultimately ‘made’ version of that Agreement.
For the purposes of this Order:
“the 2011 Agreement” means the “Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2011 – Off Site (AE885414)”;
“the 2016 Agreement” means the “Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site (AE421967)”; and
“the 2011 On-Site Agreement” means the “Bianco Walling Pty Ltd (On-Site) Enterprise Agreement 2011 (AE886533)”.
[57] Production (if any) is to be made by 5.00pm (ACST) 23 June 2020 by electronic communication to the Fair Work Commission copied to the relevant officer of the Construction, Forestry, Maritime, Mining and Energy Union.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR720018>
1 CFMMEU 1 June 2020, 3 June 2020 (email) and 5 June 2020 (email); Bianco 28 May 2020 (letter) and 3 June 2020
2 [2018] FWC 5823
3 [2019] FWCFB 161
4 [2020] FCAFC 50
5 Order 24 March 2020 paragraph 2
6 Directions Anderson DP 30 April 2020
7 The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1984) 159 CLR 163 at [12]
8 Australian Nursing Federation v Victorian Hospitals' Industrial Association[2011] FWA 8756 at [13]
9 See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2011] FWA 8756 including in particular Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892
10 Bianco written submissions paragraphs 26 to 29
11 [2020] FCAFC 50 at 68
12 Ibid at 86
13 Alkan v The Traffic Controllers Pty Ltd [2020] FWCFB at 2969 at [4] and [16]
14 Australian Nursing Federation v Victorian Hospitals' Industrial Association[2011] FWA 8756 at [13]
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