Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the...
[2024] FWC 671
•18 MARCH 2024
| [2024] FWC 671 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia AND “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
CSL Limited T/A Seqirus
(C2023/5806 and C2023/6060)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 18 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – application for orders for production of documents – application declined.
This decision relates to an application for orders for the production of documents pursuant to clause 1.7.2(c)(iv) of the Seqirus Enterprise Agreement 2021[1] (the Agreement) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (collectively referred to as the Unions).
On 28 September 2023 and 10 October 2023 respectively, the AMWU and the CEPU, applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 1.7 of the Agreement. The AMWU and CEPU by their dispute notifications contend that CSL Limited T/A Seqirus (Seqirus) has failed to consult in accordance with its obligations under clauses 1.8.3 and 1.8.6 of the Agreement with respect to its new Tullamarine manufacturing facility.
The dispute was not resolved through conciliation. Pending arbitration of the substantive dispute the Unions then sought interim orders from the Commission seeking to restrain Seqirus from commencing negotiations for an enterprise agreement covering its new Tullamarine manufacturing facility. A hearing to deal with the application for interim orders was held on 29 January 2024, following which I issued a decision[2] (Interim Orders Decision) that same day in which I declined to grant the interim orders sought. My reasons for that decision were subsequently issued in a further decision[3] (Reasons for Decision) on 6 February 2024.
On 2 February 2024, Directions were issued for the filing of material by the parties in relation to determination of the substantive dispute, the hearing for which was set down for 25 & 26 March 2024. The parties filed their material in accordance with those Directions. Relevantly, the Directions also required any application/s for orders for the production of documents to be filed on or by the close of business Tuesday 12 March 2024, and that in the event such application/s were made, a hearing to deal with any application/s was to be held on Thursday 14 March 2024. On 12 March 2024, the Unions applied for production of the following documents;
“All documents recording or evidencing any proposal to introduce change to the regular roster or ordinary hours of work of employees.”
A hearing to deal with the Unions’ application for orders for the production of documents was held on 14 March 2024.
Agreement Provisions
The clauses of the Agreement that are relevant to resolution of the present application for orders for the production of documents are Clause 1.7 Dispute Resolution, Clause 1.8.3 Consultation Obligations and Clause 1.8.6 Consultation on new Tullamarine facility. These are set out below.
The dispute resolution procedures states as follows;
“1.7DISPUTE RESOLUTION
In the event of a dispute in relation to a matter arising under this Agreement or in relation to the National Employment Standards, these matters shall be dealt with in accordance with the following procedure.
1.7.1 Resolving disputes at the workplace
(a)In the first instance, the parties to the dispute must genuinely try and resolve the dispute at the workplace level, by discussions between the employee(s) and the relevant manager.
(b)If the matter remains unresolved, the matter shall be discussed between the employee(s) and a more senior manager.
(c)If the matter remains unresolved, the matter shall be discussed between the employee and an appropriate company representative (for example a member of the Human Resources department).
(d)If the matter remains unresolved after (a) – (c) have been exhausted, either the employer or the employee(s) may refer the dispute to the Fair Work Commission.
1.7.2Where disputes cannot be resolved at the workplace
The Fair Work Commission may deal with the disputes in two (2) stages:
(a)The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b)If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i)Arbitrate the dispute; and
(ii)Make a determination that is binding on the parties.
(c)If arbitration is necessary, the FWC may exercise the following powers:
(i)take verbal or written evidence on oath or affirmation, in chief and by cross examination;
(ii)give a direction in the course of or for the purposes of procedural matters relating to the hearing of the dispute;
(iii)request the attendance before FWC of any witness or person whose presence FWC believes is directly relevant to the dispute and essential for the arbitration of the dispute;
(iv)require the production of documents and other material, excluding documents and materials which may be commercially sensitive or confidential, or are not directly relevant to the dispute and essential for the arbitration of the dispute;
(v)make a final decision in respect of the dispute (including dismissing a dispute);
(vi)hear and determine the dispute in the absence of a party who has been notified of the hearing;
(vii)conduct its proceedings, or any part of its proceedings, in private; and
(viii)meet with a party to the dispute separately during a conciliation with the knowledge of the other party.
(d)In exercising any of the powers detailed above FWC will:
(i)apply the principles of natural justice, ensuring that the parties to the dispute have a reasonable opportunity to be heard; and
(ii)act according to equity, good conscience and consider the merits of the case without undue regard to technicalities and legal form.
(e)A decision that the Fair Work Commissions makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009 (Cth). Therefore, an appeal may be made against the decision.”
The relevant consultation obligations are set out at clause 1.8.3 as follows;
“1.8.3Consultation obligations
(a) In the event that Seqirus:
(i)has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise and the change is likely to have a significant effect on employees covered by this Agreement; or
(ii)proposes to introduce change to the regular roster or ordinary hours of work of employees,
Seqirus must notify the relevant employees of the decision to introduce the major change.
(b) The relevant employees may appoint a representative for the purposes of consultation under this clause.
(c) If:
(i)a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(ii)the employee or employees advise Seqirus of the identity of the representative;
Seqirus must recognise the representative.
(d) As soon as practicable after making its decision (or in the case of roster change after proposing to introduce the change), Seqirus must discuss with the relevant employees:
(i)the introduction of the change; and
(ii)the effect the change is likely to have on the employees; and
(iii)measures Seqirus is taking to avert or mitigate the adverse effect of the change on the employees.
(iv)invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
(e) For the purposes of such discussions, Seqirus must provide, in writing, to the relevant employees:
(i)all relevant information about the change, including the nature of the change proposed; and
(ii)information about the expected effects of the change on the employees; and
(iii)any other matters likely to affect the employees.
(f)Seqirus is not required to disclose confidential or commercially sensitive information to the relevant employees.
(g) Seqirus must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(h)In this clause, a major change is likely to have a significant effect on employees if it results in:
(i)the termination of the employment of employees; or
(ii)major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(iii)the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(iv)the alteration of hours of work; or
(v)the need to retrain employees; or
(vi)the need to relocate employees to another workplace; or
(vii)the restructuring of jobs.
(i)In this clause, “relevant employees” means the employees who may be affected by the relevant change.”
Clause 1.8.6 specifically deals with consultation obligation in relation to Seqirus’ new Tullamarine facility;
“1.8.6Consultation on new Tullamarine facility
Seqirus has announced that it is building a new purpose-built facility at Tullamarine, which it anticipates will commence operation in 2026.
Seqirus will consult with employees in relation to the new facility in accordance with clause 1.8.3.
Seqirus may also use the Consultative Group forum as outlined in clause 1.8.4 to provide relevant updates on the new facility.”
Case for the Unions
The Unions state that they have now had the benefit of viewing the proposed new enterprise agreement for the Tullamarine site following the recent commencement of bargaining. Also considering the material filed by Seqirus in relation to the substantive dispute, they submit it is apparent that the ordinary hours of work and shift roster arrangements at the Tullamarine site will result in a change to the hours of work of employees currently engaged at the Parkville site.
The Unions refer to a document issued in September 2023 which includes a slide titled Tullamarine – Operating Model Assumptions. The slide relevantly includes information on the 24/7 operations that will be put in place at Tullamarine (Tullamarine – Operating Model), which will be supported by continuous 12 hour shift rosters in manufacturing and support functions (which will include mechanical and electrical trades maintenance crews). Further highlighting the change in rosters and ordinary hours of work, the Unions also refer to another document that includes the Tullamarine Roster Model which shows a proposed rotating four crew 12 hour shift roster (the Proposed TUL Roster Model).
Based on the information that is now available, the Unions contend it is reasonable to infer that over the course of Seqirus’ consideration of rosters and ordinary hours of work for the Tullamarine site, various roster proposal have been developed, including with the support of an external organisation called Shiftwork Solutions. In those circumstances, the Unions contend that various consultation obligations arise under the terms of the Agreement, those being that;
the proposal to change the regular roster or ordinary hours of work are major changes of which relevant employees are to be notified (cl. 1.8.3(a)(ii) referable to cl. 1.8.6))
(ii)that change in hours of work is a ‘major change’ within the meaning of cl. 1.8.3(h)(iv);
the employees at Parkville are ‘relevant employees’ within the meaning of cl. 1.8.3(d) & (e);
(iv)by cl. 1.8.3(d), Seqirus is obliged to discuss the proposed changes to the rosters and hours of work having regard to the matters enumerated at subclauses 1.8.3(e)(i)-(iii);
to enable the above-referred discussions to occur, Seqirus is obliged to provide in writing the matters set out in sub-clause 1.8.3(e)(i)-(iii);
In the substantive dispute application, the Unions contend that there have been broad breaches of cl. 1.8.3 by Seqirus, including a failure to discuss and consult about terms and conditions of employment it wants to put in place at Tullamarine. This application for orders for the production of documents is however limited in scope to the production of documents relating to the proposal to change the regular roster or ordinary hours of work of Parkville employees.
In circumstances where there has been limited and incomplete information provided regarding changes to the regular roster or ordinary hours of work of Parkville employees, and where it can be strongly inferred that Seqirus has progressively developed options and ‘proposals’ for hours of work for the Tullamarine site, the documents sought by the present application are, the Unions submit, critical to establishing Seqirus’ compliance with its consultation obligations in the substantive application. The Unions argue that had the required information been provided by Seqirus to the Parkville employees who will undoubtedly be affected by the change and had proper consultation occurred, better rostering proposals may have been brought forward.
As to the conduct of enterprise bargaining for an enterprise agreement for the Tullamarine site, the Unions acknowledge that process might lead to agreement being reached on hours of work and rostering arrangements for the new site. That possibility does not in their view detract from the consultation obligations that separately arise from the terms of the Agreement. They further contend there is no conflict between the obligations imposed on Seqirus in relation to bargaining for an enterprise agreement for the Tullamarine site and the consultation obligations under clauses 1.8.3 and 1.8.6 of the Agreement.
As to the Commission’s power to require the production of documents under clause 1.7.2(c)(iv) of the Agreement, the Unions accept that power is limited to documents that do not fall within the category of being ‘commercially sensitive or confidential’, or where the documents are ‘not directly relevant to the dispute and essential for the arbitration of the dispute’. They contend however that it is not for Seqirus to determine whether the documents fall into one of these categories but rather it is for the Commission to test and determine. On that point, the Unions submit that Seqirus has failed to discharge the onus it bears to demonstrate the documents are commercially sensitive or confidential. As regards relevance, the Unions further submit that it cannot be said the documents are not relevant in circumstances where Parkville employees will clearly be affected by the change in hours of work.
Seqirus Case
Seqirus contend that the application constitutes no more than a ‘fishing’ exercise and that the Unions are seeking documents in relation to matters that have not been advanced in the substantive case. Further, the application is oppressive as it seeks a production of a general category of documents a week before the substantive hearing. Seqirus further argue that the Unions’ conception of what constitutes a ‘proposal’ requiring consultation is flawed as on the Unions’ construction, it would require Seqirus to consult on ‘thought bubbles’ rather than developed rosters it proposes to introduce.
Seqirus also contend that the order sought fails the test of whether it is directly relevant for the purposes of cl. 1.7.2(c)(iv) of the Agreement on five grounds.
Firstly, the obligation to consult in respect of the Tullamarine facility pursuant to cl. 1.8.6 of the Agreement is a manifestation of cl. 1.8.3(a)(i) and not 1.8.3(a)(ii), as Seqirus’ announcement to establish a new facility on 15 November 2020 was not an announcement to change rosters.
Secondly, the order fails on direct relevance at the dispute level as the dispute has never been a roster change dispute. Seqirus refer to the Unions’ characterisation of the dispute in a letter to Seqirus dated 30 August 2023 when it was stated that ‘We contend that the Companies have decided to move operations from the Parkville site to a facility at Tullamarine…This is a decision to introduce major change to production, program, organisation, structure or technology in relation to the enterprise and which is likely to have significant effects on the relevant employees’.
Thirdly, the order fails on direct relevance at the question level as there is no question for arbitration which seeks to answer whether or not consultation pursuant to clause 1.8.3(a)(ii) has been undertaken. Question 1 of the questions for determination defines the change as the ‘move to Tullamarine’.
Fourthly, the order fails on direct relevance at the level of the Unions’ material. Submissions of the Unions in the substantive dispute do not allege that Seqirus has not shared information about roster changes or ordinary hours of work. Nor is there any evidence from a Union witness that makes the allegation.
Finally, Seqirus contend that the order fails at the level of logic. The obligation in clause 1.8.3(a)(ii) cannot apply to the rosters at Tullamarine site for the Agreement does not cover the Tullamarine site. There is no proposal in dispute that relates to roster change for those covered by the Agreement.
Consideration
It is uncontroversial that cl. 1.7.2(c)(iv) of the Agreement confers power to the Commission to require the production of documents in circumstances where arbitration of a dispute is necessary. The necessary pre-requisite, that of the required arbitration of the dispute, is clearly present. It is also uncontroversial that the power of the Commission to require the production of documents is limited to documents that do not fall with the excluded categories of being ‘commercially sensitive or confidential’, or where they are ‘not directly relevant to the dispute and essential for the arbitration of the dispute’. The important point to be made is that the power to require the production of documents is a discretionary one. That is clear by the language used in the introductory sentence of cl. 1.7.2(c) where it states, ‘If arbitration is necessary, the FWC may exercise the following powers:’ which relevantly includes the power to require the production of documents (emphasis added).
In exercising discretion to require production of documents it is necessary to firstly assess whether any or all of the documents sought fall into the excluded categories referred to in cl. 1.7.2(c)(iv). Where any document/s are found by the Commission to fall into the excluded categories, they cannot be required to be produced. Documents that do not fall into the excluded categories may then be assessed by reference to the normal principles that guide the Commission in determining whether to order the production of documents. Drawing on key authorities including that of Esso Australia Pty Ltd v AWU and ors[4] (Esso), a Full Bench in Kennedy v Qantas Ground Services Pty Ltd, Qantas Group[5] (Kennedy), in considering the powers conferred by s 590(2)(c) of the Act, summarised the relevant principles as follows;
“[23] The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.”[6]
Dealing firstly with whether the documents sought fall into any of the excluded categories set out in clause 1.7.2(c)(iv), Seqirus has not contended nor advanced any relevant material that would persuade me that the category of documents sought are ‘commercially sensitive or confidential’. I am therefore satisfied that the documents sought do not fall into that category.
Turning to the next category of excluded documents, I am required to determine whether the documents sought would be ‘directly relevant to the dispute and essential for the arbitration of the dispute’. In doing so it is useful to recount how the dispute’s characterisation has evolved through the course of proceedings before the Commission. When the dispute was initially notified it was described as the ‘Lack of consultation regarding the move from Parkville site to Tullamarine site.’[7] I readily accept that the characterisation of a dispute may evolve as the matter progresses before the Commission as contested points may emerge, sharpen, or fade, particularly during conciliation. To the extent there has been some evolution of the present dispute’s characterisation, it can be safely assumed to have reached maturity at the point of the questions for determination having been settled. For completeness, the questions for determination are set out below;
In the circumstances, has the Respondent failed to discuss and consult with the relevant employees as required by subclauses 1.8.6 and 1.8.3(d) of the Seqirus Enterprise Agreement 2021(the Agreement) by failing, in relation to the change (the move to Tullamarine):
(a) to discuss the introduction of the change
(b) to discuss the effect the change is likely to have on the employees at Parkville?
If the answer to Question 1 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(i) the way in which the Respondent has failed to meet its obligations; and
(ii) steps by which it may remedy its failure?
In the circumstances, has the Respondent failed to provide in writing to the relevant employees for the purposes of the discussions required by subclause 1.8.3(d) all information required to be provided in writing by subclause 1.8.3(e)(i), (ii) and (iii), including about job opportunities at Tullamarine, about expected numbers of jobs to be available at Tullamarine for current employees at Parkville and about conditions of employment at Tullamarine, including information about how many and which of the Parkville employees will be or are expected to be employed at Tullamarine and the timetable for same?
If the answer to Question 3 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(i) the way in which the Respondent has failed to meet its obligations; and
(ii)steps by which it may remedy its failure?
As evidenced by the initial Form F10 and the settled questions for determination, progression of the dispute before the Commission by the Unions has not been based on Seqirus’ alleged failure to consult over changes to the regular roster or ordinary hours of work of employees. The dispute has been consistently characterised as being that of the alleged consultation failures of Seqirus with respect to the announced ‘move to Tullamarine’. Unsurprisingly in these circumstances, none of the questions for determination directly address proposed changes to the regular roster or ordinary hours of work of employees. Tellingly, submissions filed by the Unions in the substantive matter do not directly address changes to the hours of work of Parkville employees and nor has any witness evidence been filed by the Unions to the effect that Seqirus has failed to consult over changes to the regular roster or ordinary hours of work of employees at Parkville.
The questions for determination set out above focus on whether Seqirus has complied with its consultation obligations derived from cl. 1.8.3(a)(i), with the ‘major change’ being that of ‘the move to Tullamarine’. In these circumstances, the focus of the Commission in determining the dispute will necessarily be on whether the consultation steps set out in cl. 1.8.3 have been followed with respect to that ‘major change’ and not in respect of the now alleged failure to consult over changes to the regular roster or ordinary hours of work of employees. It follows from the foregoing that having characterised and pressed the dispute on the basis of the above-described ‘major change’, the relevance of the material must be assessed against the questions to be determined and the substantive case that has been so far put by the Unions.
Returning to the order sought, the Unions seek an order requiring the production of “All documents recording or evidencing any proposal to introduce change to the regular roster or ordinary hours of work of employees.” The application for orders for the production of documents is clearly premised on the dispute being about compliance with consultation obligations derived from cl. 1.8.3(a)(ii). Having already observed that the dispute has been pressed on the basis of consultation failures relating to cl. 1.8.3(a)(i), it follows that the documents sought are arguably not directly relevant to determination of the agreed questions. It is also unclear to me how a roster that will be ultimately implemented on a site not covered by the Agreement and which along with other terms and conditions is now the subject of bargaining to establish an enterprise agreement for the Tullamarine site, could be a ‘change to the regular roster or ordinary hours of work’ of Parkville employees within the meaning of cl. 1.8.3(a)(ii).
Notwithstanding the above, I am prepared to accept for the purpose of the present application that the hours of work that will be implemented at Tullamarine are, based on the Proposed TUL Roster Model, more than likely to be different to the ordinary hours of work currently in place for mechanical and electrical trades employees at Parkville. The Proposed TUL Roster Model was provided to Parkville employees as early as September 2023 and is also along with other terms and conditions of employment now subject to bargaining for an enterprise agreement for the Tullamarine facility. In these circumstances, for those maintenance employees that ultimately transfer to the Tullamarine facility, it is arguable that the change in hours of work that flow from the ‘move to Tullamarine’ could be said to be an ‘effect’ of the change within the meaning of cl 1.8.3(d)(i) and cl. 1.8.3(e)(ii) of the Agreement. If correct, that would as a consequence of cl. 1.8.6 give rise to obligations under cl. 1.8.3, those being to discuss with the relevant employees the effects of the change (the move to Tullamarine) which could include discussion of the roster pursuant to cl. 1.8.3(d)(i) and to also provide in writing to the relevant employees ‘information about the expected effects of the change on the employees’ pursuant to cl. 1.8.3(e)(ii) of the Agreement.
While it is arguable that the rosters to be implemented at Tullamarine are likely to be an ‘effect’ of the move to Tullamarine, giving rise to obligations under cl. 1.8.3 of the Agreement, the present application for production of documents has not been pressed on that basis. Nor have the Unions contended in their material filed in the substantive dispute that Seqirus has failed to discuss or provide information on the particular ‘effects’ of the ‘move to Tullamarine’, vis a vis the likely change in the roster. In any event, the final outcome in bargaining may result in a different roster to the Proposed TUL Roster Model in which case one ‘effect’ of the ‘move to Tullamarine’ will be that of the roster that may be agreed upon during enterprise bargaining. In those circumstances, provision of the Proposed TUL Roster at this stage might be said to be premature in circumstances where it may be subject to change during bargaining. That said, and without determining the boundaries of the consultation obligations pursuant to cl 1.8.6 and cl. 1.8.3 of the Agreement at this point, there are clearly sound reasons for keeping Parkville employees informed of matters that are the subject of enterprise bargaining for the Tullamarine facility.
Having regard to the above I am not persuaded that the documents sought are directly relevant to resolution of the questions to be determined. The application must therefore be declined on the basis that the documents fall into one of the categories of excluded documents under cl. 1.7.2(c)(iv), that being they are ‘not directly relevant to the dispute and essential for the arbitration of the dispute’.
If I am wrong in my conclusion that the documents sought fall into an excluded category, I would nonetheless decline to grant the order sought on the following basis. Firstly, the documents sought do not support the case that has been so far advanced by the Unions. As earlier stated, the Unions have not made any submissions or filed any evidence going to the change in the regular hours of work of employees. Rather it appears as if the documents are being sought in order to establish whether there is ‘supportable basis for a case that might potentially be advanced’. Secondly, the order sought lacks particularity in that it seeks ‘all documents’ bearing upon ‘any proposal’ to change hours of work of Parkville employees were they to move to Tullamarine. Finally, given the order is expressed in terms of a general category of documents I accept Seqirus’ submissions that requiring production would be oppressive.
Conclusion
For the foregoing reasons I decline to grant the Unions’ application for production of documents. Consequently, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
E White of Counsel for the Applicants.
L Howard of Counsel for the Respondent.
Hearing details:
2024.
Melbourne.
March 14.
[1] AE513821.
[2] [2024] FWC 231.
[3] [2024] FWC 305.
[4] [2017] FWCFB 2200 at [6].
[5] [2018] FWCFB 3847.
[6] Ibid at [23].
[7] AMWU Form F10, dated 28 September 2023, at question 2.1.
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