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

[2017] FWC 262

[2017] FWC 262

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, 13 JANUARY 2017

James Craig Metcher – right of entry - order for the production of documents.

Introduction

[1] This decision relates to four proposed orders to produce documents prior to a scheduled hearing in respect of the above matter before me in mid-March 2017.

[2] The draft orders were lodged by the Australian Government Solicitor on behalf of the Honourable Michaela Cash, the Minister for Employment (the Minister).

[3] Two of the proposed orders were lodged with the Commission and served on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 23 December 2016. The first is to be served on the Commissioner of Police, New South Wales Police Force. The second is to be served on the Australian Postal Corporation.

[4] The other two proposed orders were lodged on 6 January 2017. One is to be served on Mr Metcher and the other on the proper officer of the divisional branch of the CEPU.

Background

[5] On 11 February 2016 an application was lodged for a right of entry permit for James Craig Metcher by the CEPU. Mr Metcher is the Secretary of the Communications Division, New South Wales Postal and Telecommunications Branch.

[6] 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).

[7] 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.

[8] 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.

[9] However, the Minister made an application to the President that the matter be referred to a Full Bench.

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

[11] I have 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 (now proposed for 14 and 15 March).

[12] One of the directions was for the Minister to advise the Commission whether further inquiries by the RCB to the New South Wales Police were sought. This request was made on 19 December and I immediately acted on it. I have now been advised by the RCB that the Police would require a Notice to Produce from the Commission to access their files.

Commission Proceedings

[13] As a result of the email exchanges, over the Christmas/New Year period, it was agreed a telephone conference would be convened. This occurred on 10 January 2017.

[14] The CEPU and Mr Metcher were represented by Mr J. Pearce of counsel and Mr P. Punch, solicitor. The Minister was represented by Ms R. Sweet, of counsel and Ms S. Wright from the Australian Government Solicitor.

[15] Mr Pearce lodged a detailed written submission prior to the conference dealing with the Commission’s approach to the production of documents.

Consideration

[16] The Commission’s power to order the production of documents derives from s.590(2)(c) of the Act which provides that the Commission may inform itself:

“. . . by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”

[17] I have considered the Commission’s approach to the issue of such orders contained in cases such as: Re Clerks Alcoa per Munro J Print H2892; Spiteri v O’Brien Glass per Willliams SDP (2001) 109 IR402; AMIEU v Meat and Allied Trades Federation of Australia (1990) 33 IR 431.

[18] A more recent Full Bench in Clermont Coal Pty Ltd and others v Troy Brown and others (2015) FWCFB 2460 summarised the approach as follows:

“[17] The appeal here is brought against interlocutory decisions and orders. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies.

[18]The second and third propositions advanced by the appellants may be disposed of at the outset. In response to the second proposition, the respondents undertook that they would not call on the production of the documents referred to in order 1 of the First Order and the Second Order insofar as they did not pertain to the period 1 September 2014 to 30 November 2014. In response to the third proposition, the respondents accepted that the “policies” referred to in orders 6 and 7 of the Third Order and the Fourth Order were policies in the nature of documents generally available to employees for the purpose of providing guidance on decision-making, and undertook not to call on the production of “policies” under those orders which did not meet that description. We consider that those undertakings remove any utility in granting permission to appeal on the basis of the appellants’ second and third propositions, irrespective of the merits of those propositions. The public interest will not be attracted in respect of an appeal which has no practical utility.

[19]The first, and primary, proposition advanced by the appellants in support of its application for permission to appeal rests on a misconceived approach as to the assessment of the relevance of documents for which an interlocutory order for production is sought. The test is whether the documents sought have an apparent relevance to the issues in the proceedings. Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission. The challenged orders clearly satisfy that test. The applicants in the unfair dismissal applications contend (among other things) that, for the purposes of s.389(2), it was reasonable for them to be redeployed to perform work currently done by contractors. Any documents which would be likely to demonstrate that, during the relevant period, there was work being performed by contractors which could be performed by the applicants would be of apparent relevance to that issue in the case.

[20]That Clermont Coal Operations Pty Ltd intends to argue at the hearing that s.389(2) does not permit the consideration of redeployment to work performed by contractors does not alter the position. The consideration of relevance in relation to an application for an order for the production of documents does not require the advance determination of a contested issue in the matter, with relevance then to be assessed on the basis of that determination. To adopt the approach advanced by the appellants would have the undesirable effect of making an interlocutory hearing concerning production of documents a forum for the resolution of the major issues in contest in the proceedings. The position might be different if a party seeks the production of documents to support a case which is not reasonably arguable. However, it was not suggested by the appellants that the applicants’ case fell into this category. We were not taken to any decision in which the issue in contest has been determined. It remains an issue which will require resolution at the hearing.

[21]No issue of the Commission’s power is involved here. The power of the Commission under s.590(1) to “inform itself in relation to any matter before it in such manner as it considers appropriate”, which under s.590(2)(c) includes requiring the production of copies of documents and records to the Commission, is expressed in very broad terms. The Deputy President clearly had power to make the orders the subject of this appeal.

[22]As to the fourth proposition concerning “fishing”, the Deputy President made an evaluative judgment about this issue. In the absence of any contention that compliance with the orders for production would be oppressive, we do not consider that the public interest would require any revisitation of this issue even if there was an arguable case of error.

[23]In relation to the fifth proposition, this Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced. It is not clear to us why compliance with the relevant orders will require documents of that nature to be disclosed. If, after the orders are complied with, a view crystallises on the part of any of the appellants that any of the documents produced would disclose internal deliberations as to industrial strategy or policy, they may, consistent with what was stated by the Deputy President in her decisions, apply to the Member hearing the substantive proceedings for orders to be made to impose appropriate limitations on access to the documents (including, for example, the redaction of documents). If the documents ultimately find their way into evidence, a party may apply to the Member for confidentiality orders under ss.593 or 594 of the FW Act. If any such application was made, we do not consider that the Member, who would have the capacity to inspect the particular documents in question, would be in any way bound by the view expressed by the Deputy President in paragraph [27] of the First Decision (or by any view we have expressed). In those circumstances, there does not appear to us to be any utility in granting permission to appeal in respect of this issue, taking into account that it was not suggested that the applicants sought the production of the relevant documents for any collateral or improper purpose.

[24]Having considered all of the matters raised by the appellants, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal. Alternatively, even if s.400(1) is not applicable to this case, we are not satisfied that the appellants have advanced any discretionary ground which would justify the grant of permission to appeal.”

[19] In accordance with this approach I have decided to issue the four orders to produce. The order addressed to Australia Post has been amended to make it more specific. The order addressed to the CEPU Divisional Branch is addressed to the Proper Officer, as requested by Mr Pearce.

[20] I am satisfied that the general and broad power of the Commission to order the production of these documents should be exercised.

[21] I note that a proceeding before the Commission with respect to a right of entry permit application involves broad inquiries of the applicant union and official and possibly other entities. The material sought is clearly relevant to the matter ultimately to be determined by the Commission. It is clearly necessary for the fair determination of the matter before the Commission.

[22] The orders are not oppressive to the New South Wales Police or Australia Post. They are well aware of the issues and have had initial inquiries made of them. In the case of the Police, the report of the RCB had raised the possibility of this material being obtained.

[23] The investigations and decision of the CEPU, and its divisional branches, are clearly relevant to the decision that the Commission might ultimately make.

[24] I note also that many of the matters covered by the four notices to produce are matters of public record.

[25] The orders will be issued at the same time as this decision.

[26] It was agreed that Mr Punch will have access to the material provided pursuant to the notices on Tuesday 31 January. The Minster’s legal representatives will have access on Wednesday 1 February.

[27] The Commission will then give consideration to the manner in which this material will be dealt with including issues of confidentiality.

DEPUTY PRESIDENT

Appearances:

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

R. Sweet, of counsel with S. Wright, solicitor for the Respondent.

Hearing details:

2017

Telephone Conference:

January 10.

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