Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2017] FWC 2078

[2017] FWC 2078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(RE2016/154)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 12 APRIL 2017

James Craig Metcher- right of entry – re-listing on the Fair Work Commission’s own motion.

Background

[1] This decision relates to the finalisation of proceedings in respect of the right of entry permit of James Craig Metcher, who, until his resignation on 7 March 2017, was the New South Wales, Postal, and Telecommunications Branch Secretary of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[2] It arises from the final hearing that took place on 14 March 2017.

[3] The application for the right of entry permit was lodged by the CEPU on 11 February 2016. On 9 May 2016 I issued a decision [(2016) FWC 2877] granting the permit, with one condition, pursuant to s.512 of the Fair Work Act 2009 (the Act).

[4] On 25 October 2016 the Director of the Regulatory Compliance Branch of the Commission (RCB) provided a report to Vice President Watson, as panel head of the Organisations Panel, which contained certain additional information/allegations which may be relevant to the issuing of a permit to Mr Metcher.

[5] The matter was allocated to me and I decided to list it for hearing on my own motion. The hearing was scheduled for 2 December 2016.

[6] However, the Minister for Employment, the Honourable Michaela Cash (the Minister), represented by the Australian Government Solicitor (AGS), made an application to the President that the matter be referred to a Full Bench.

[7] On 6 December 2016 the President rejected that application [(2016) FWC 873].

[8] I conducted mention hearings on 13 and 19 December 2016. As a result, in a direction issued on 14 December:

● Leave to intervene was granted to the Minister on a general basis;

● Permission was granted to counsel to appear pursuant to s.596 of the Act;

● Directions were issued for the filing of submissions and evidence;

● The hearing was listed for 13 and 14 March 2017 (subsequently changed to 14 and 15 March).

[9] Four proposed orders to produce documents were lodged on behalf of the Minister. The notices were served on:

● Commissioner of Police, New South Wales Police Force;

● Australian Postal Corporation;

● Mr Metcher;

● The proper officer of the division branch of the CEPU.

[10] A telephone conference with respect to the notices to produce took place on 10 January 2017.

[11] I issued a decision on 13 January 2017 [(2017) FWC 262] in which I decided to issue the four orders to produce with some amendment to clarify the order directed to Australia Post. The orders were returnable on 30 January 2017.

[12] The orders were complied with although the New South Wales Police material was not finally lodged in the Fair Work Commission (the Commission) until 13 February 2017. Mr Metcher and the CEPU sought confidentiality orders with respect to the material lodged. Australia Post sought that a Confidential Investigation Report and a Transcript of Interview not be provided to the parties on the ground of privilege.

[13] The parties (the CEPU/Mr Metcher) and the Australia Government Solicitor (AGS) on behalf of the Minster participated in a telephone conference on 6 February. As well, they and Australia Post lodged written submissions.

[14] I issued my decision on 16 February 2017 [(2017) FWC 912]. I noted that:

“[31]Both parties agreed that:

• A general order should be issued that none of the material produced should be published or put into the public domain prior to the hearing.



• The nature of the hearing, the content of the transcript and subsequent decision should be addressed by the parties prior to the hearing. I intend to include a direction in respect of these matters as part of the orders issued accompanying this decision.



• The AGS consented to an order that the documents produced be only utilised for this proceeding consistent with the principles set out by the High Court in Hearne v Street (2008) 235 CLR 125. I have included the AGS’s reformulation of this undertaking in the orders.”

[15] In respect of the Australia Post report I decided:

“[38] On balance, I am not satisfied that the report, as a whole, is covered by legal professional privilege. I consider it most likely that the report was authorised to be prepared by Australia Post senior management because it was thought appropriate to get an external expert to report on what had occurred in relation to a problem/problems in the workplace. It is not apparent that litigation could have been reasonably anticipated or was likely arising from the issues dealt with in the report. Nevertheless the report does contain recommendations about Australia Post’s options which can be variously described as legal, policy and industrial. In my view, these are protected by privilege and should be deleted from the version of the report inspected by the parties.

[39] The balance of the report, to the extent that it relates to Mr Metcher’s conduct in relation to workplace issues and his relationship with the major employer with which he deals, is arguably relevant to the substantial issues before the Commission.

[40] The report does contain many names which are not relevant to these proceedings and these should be redacted. The exceptions are Mr Metcher and the senior Australia Post Executives, Mr Fahour and Ms Walsh. Deletion of these names would make the report incomprehensible. In any event, they have already been named in the proceedings.

[41] The Commission’s task is to balance the interests of justice and the need to consider material which is relevant to the task at hand, with legitimate legal professional privilege claims. I have decided that the report will be available on a redacted basis with paragraphs 3, 4, 5, 6, 7 and 8 and the Annexures deleted.”

Confidentiality and Procedural Orders

[16] The following were the orders issued on 16 February 2017 (PR590313):

“1. None of the documents or other material produced as a result of the order to produce issued on 13 January 2017 shall be published or put into the public domain, by any means, prior to the hearing of the matter on 14 and 15 March 2017.

2. The solicitors for the CEPU and the AGS shall file and serve, by close of business on Wednesday 8 March brief submissions dealing with confidentiality issues in respect of:

• The nature of the hearing



• The transcript



• The decision.

3. Access to the documents produced as a result of the orders to produce issued on 13 January 2017 will be restricted to the legal representatives and instructing officers and staff of the parties. To avoid doubt this includes the Minister and Mr Metcher.

4. The legal representatives of the Minister will advise the Minister and any other person to whom they disclose, in a manner consistent with the above orders, and of the Produced Material:

(a) of the Orders of the Commission dated 16 February 2017; and

(b) that the Produced Material has been disclosed by reason of an order of the Commission, that is, not voluntarily, and, as a result, the documents or information provided cannot be used or disclosed for any purpose other than this proceeding unless any such purpose is agreed to by the producing party or is permitted by further order.

5. The AGS shall inspect the balance of the documents lodged with the Commission on 30 January 2017 by Mr Metcher and the CEPU and contained in the restricted envelope. The three items identified in the AGS email of 7 February are to be redacted.

6. The complaint by an Australia Post employee, in a redacted form, together with associated correspondence, is available for inspection by the parties as soon as practical.

7. The Australia Post report is to be produced as soon as practical for inspection by the parties in a redacted form, namely:

• Names other than Mr Metcher, Mr Fahour and Ms Walsh are to be redacted;



• Paragraphs 3, 4, 5, 6, 7 and 8 and the Annexures are to be deleted.”

[17] On 24 February Australia Post lodged an appeal against my decision and order of 16 February 2017 in so far as they related to the Australia Post documentation. Australia Post sought a stay in relation to order 7. This appeal (C2017/1025) has not come on for hearing because of intervening events which I deal with below.

14 March 2017 Hearing

[18] Mr Metcher, the CEPU and the Minister lodged submissions, in accordance with the directions issued, prior to the hearing.

[19] However, on 8 March Carroll O’Dea, solicitors for the CEPU, wrote to my chambers advising that the previous afternoon Mr Metcher had tendered, to a special meeting of the Branch Committee of Management, his resignation from all positions in the CEPU with immediate effect. Carroll O’Dea continued to act for the CEPU but not Mr Metcher who withdrew from the proceedings. The CEPU submitted that, in the circumstances, the permit previously granted to Mr Metcher had expired and that the Commission’s own-motion proceedings should be terminated forthwith. The effect of the resignation renders the permit null and void. A copy of Mr Metcher’s resignation letter was attached to the Carroll O’Dea letter.

[20] The hearing on 14 March proceeded, by agreement, as a mention. Mr J. Pearce and Mr P. Punch appeared for the CEPU. Ms R. Sweet and Ms J. Davenport, appeared by video connection for the Minister.

[21] Section 516(1) of the Act provides:

“516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:
(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);
(b) when the permit holder ceases to be an official of the organisation that applied for the permit.”

[22] Therefore, by virtue of his resignation on 7 March, Mr Metcher’s entry permit had expired on that date.

[23] As at the date of the hearing, Mr Metcher was no longer an entry permit holder. On 28 November 2016 the Acting Branch Secretary of the CEPU Branch had returned Mr Metcher’s entry permit to the Commission in compliance with s.517. Contrary to the request that was made, the Regulatory Compliance Branch did not cancel the permit by “administrative action”. The details of the permit were removed from the Commission’s website after the hearing.

[24] At the hearing the CEPU reiterated their submission that the proceedings should be discontinued. The Minister submitted that it was a matter for the Commission as to whether its own motion investigation proceeded and, when pressed, stated that if that was the Commission’s view “the Minister will not put a position in opposition to that” (Transcript PN37). The following further exchange took place:

“[38] THE DEPUTY PRESIDENT:  I am assuming the Minister wouldn't think there was a public interest in there being lengthy proceedings in respect of a matter that's absolutely, completely academic, you know.  That would be right, wouldn't it?

[39] MS SWEET:  That would be right.”

[25] The CEPU submitted that the confidentiality orders be continued, and this was supported by the Minister. It was also agreed that the order with respect to Australia Post’s report should be set aside, thus negating the need for the appeal proceedings to continue.

Conclusion

[26] I am satisfied that as a result of Mr Metcher’s resignation, effective 7 March 2017, there is no longer an entry permit held by Mr Metcher. These proceedings were commenced on the Commission’s own motion. In the circumstances, there is no practical utility or public interest in continuing the proceedings. I therefore hereby discontinue these proceedings pursuant to s.589 of the Act.

[27] Orders [PR591830] dealing with the confidentiality of documents produced for these proceedings and the Australia Post report accompany this decision.

DEPUTY PRESIDENT

Appearances:

J. Pearce of counsel with P. Punch, solicitor for the Applicant;

R. Sweet of counsel with J. Davenport for the AGS.

Hearing details:

2017

Sydney:

March 14.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591819>