Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Degremont Joint Venture

[2011] FWA 6262

[2011] FWA 6262

FAIR WORK AUSTRALIA

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
v
Thiess Degremont Joint Venture
(C2011/5770)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 SEPTEMBER 2011

Alleged dispute concerning change in roster for employees and terminating the employment of 160 electrical employees.

[1] This procedural decision arises from an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute concerning redundancies under the disputes settlement provision (clause 15) of the Thiess Degremont (“TD”) and AMWU, AWU, CEPU and CFMEU Victorian Desalination Project Greenfields Agreement 2009 1(the Agreement). The dispute concerns electrical employees engaged byThiess Degremont Joint Venture (TD) at the desalination plant construction project at Wonthaggi and specifically, in relation to those employees - the number and timing of redundancies, the process for selecting employees to be made redundant and compensation for losses resulting from having to leave accommodation arranged near the work site at short notice. The redundancies in issue are those proposed by TD, occasioned by its decision, under the Agreement, to change shift arrangements for most electricians from a 4 on/4 off roster to a 56 hour roster.

[2] The dispute was dealt with by conciliation without resolution and is programmed for hearing on Monday, 19 September 2011, subject to directions. The CEPU has applied under s.590(2)(c) of the Act for an order requiring production of the following:

“1. The Original Production/Construction programming document in respect to the Desalination Project located in Wonthaggi, Victoria (‘the Project’).

2. Monthly Production/Construction programming documents in respect to the Project. Only one program document for each month of the last 12 months is required.

3. A printout of the information which measures and records the lost time on the Project stored in the ‘bluey’ data base or in any previous similar database, for the period of the last 12 months.

4. A printout of the information which measures and records the productivity on the Project stored in the CCMS data base or in any previous similar database for the period of the last 12 months.

5. A printout of the data which records how many man hours are required on the Project and the estimated man hours left on the Project from the QMR data system or any previous similar system. Only one printout for each month of the last 12 months is required.”

[3] This decision deals with that procedural application. The decision has been produced quickly and is brief in order that the orders made can be answered with minimal prejudice to the program for arbitration, with both parties co-operating to facilitate finalisation of the dispute as quickly as possible.

[4] In deciding the procedural application, I have had regard to the well known principles recorded in the authorities summarised by the CEPU in a document entitled “Principles for the order of production of documents”.

[5] I have decided to make the following order:

“Pursuant to s.590(2) of the Fair Work Act 2009 (the Act) I order that:

1. The Proper Officer, Thiess Degremont Joint Venture, Victorian Desalination Project, Lower Powlett Road, Wonthaggi VIC 3995 produce to Fair Work Australia the documents, records and other information specified in the Schedule to this order before Fair Work Australia, Level 4, 11 Exhibition Street, Melbourne, 3000, returnable at the earliest possible time but no later than 3.00 pm on Wednesday, 14 September 2011;

2. The documents produced to Fair Work Australia are to be inspected only by the legal advisors to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) or any other person authorised in writing by Thiess Degremont Joint Venture (TD); and

3. The CEPU to advise TD of any reliance it intends to make on any of the material produced in advance of any reliance on it for the purposes of the arbitration in order that TD can exercise its rights under ss.593 and 594 of the Act and to not rely in any way on or disclose any information provided in compliance with the order for any other purpose, except with the written authorisation of TD.

Schedule:

1. The Original Production/Construction programming document in respect of employees undertaking electrical work under the Thiess Degremont (‘TD’) and AMWU, AWU, CEPU and CFMEU Victorian Desalination Project Greenfields Agreement 2009 (the Agreement) in respect of the Desalination Project located in Wonthaggi, Victoria (‘the Project’).

2. Monthly Production/Construction programming documents in respect of employees undertaking electrical work under the Agreement in respect of the Project. Only one program document for each month of the last 12 months is required.

3. A printout of the information which measures and records the lost time on the Project, in respect of employees undertaking electrical work under the Agreement, stored in the ‘bluey’ data base or in any previous similar database, for the period of the last 12 months.

4. A printout of the information which measures and records the productivity on the Project in respect of employees undertaking electrical work under the Agreement stored in the CCMS data base or in any previous similar database for the period of the last 12 months.

5. A printout of the data which records how many man hours are required on the Project and the estimated man hours left on the Project in respect of employees undertaking electrical work under the Agreement from the CCMS and/or QMR data system or any previous similar system. Only one printout for each month of the last 12 months is required.”

[6] In so deciding, I am satisfied that the documents sought are relevant to the matters in dispute concerning the redundancies proposed by TD. In reaching that conclusion, I am satisfied that each of the documents sought is relevant to questions of production and productivity, both of which are relevant to the issues in the dispute concerning redundancy. Whilst TD has relied on capacity constraints on site as a major motivation for the redundancies and their number 2 and contended that this consideration is unrelated to production and productivity, the work program is one of the considerations in respect of the capacity constraint3 and the number of redundancies has been determined having regard to the capacity matters “and the preferred number of Electrical Workers deemed necessary to enable (sic) perform the Project effectively”.4 Further, the request for the production of the documents is certainly not a “fishing expedition”.

[7] No objection was raised to the production of the documents and that their production is onerous, save that TD submitted that documents before June 2011, in respect of point 5 in the order would need to be reconstructed. No issue was raised as to the sufficient specification of the documents sought to be produced.

[8] Further, I am satisfied that the production of the documents is necessary to provide the CEPU with a proper opportunity to present its case and will facilitate determination of the arbitration in a fair and reasonable manner.

[9] The order as sought was too broad in that it went beyond the TD workforce subject to the dispute. Accordingly, I have limited the order to employees undertaking electrical work under the Agreement.

[10] I did give consideration to refusing the order for the production of the original production/construction programming document (point1 in the schedule to the order) and limiting the production of man hour records (point 5 in the schedule to the order) to a period commencing June 2011, when the current recording system commenced operation, subject to the right of the CEPU to renew its application for the production of the further documents once it had examined the other material produced. However, being satisfied as to the relevance of the material and in order to avoid a potential delay in the substantive arbitration, I have decided not to so.

[11] The order also provides, as suggested by TD in the event that any orders were made, that the documents produced be produced to Fair Work Australia and are to be inspected only by the legal advisors to the CEPU or any other person authorised in writing by TD. In the event that the CEPU seeks any additional arrangement for access to the documents it should seek to obtain the written permission of TD. Should the CEPU see a need to vary this aspect of the order, it should seek the agreement of TD and submit a consent variation. In the absence of consent, any variation application will be heard and determined urgently. I anticipate, however, that the parties will continue to co-operate to facilitate a hearing and determination of the substantive application on the program now in place.

[12] In the event that orders are required under ss.593 and 594 of the Act in relation to any or all of the material produced in compliance with the order, an application can be made and heard before any information is introduced into the arbitration hearing. I have ordered the CEPU to advise TD of any reliance it intends to make on any of the material produced in advance of any reliance on it for the purposes of the arbitration in order that TD can exercise its rights under ss.593 and 594 and to not rely in any way on or disclose information provided in compliance with the order for any other purpose.

[13] The orders will be returnable at the earliest possible time but no later than 3.00 pm on Wednesday, 14 September 2011. In the event that it is not possible to comply fully with the order within that time frame the parties should discuss a consent variation to the order and/or the directions for the hearing, with a view of not disrupting the hearing date of 19 September 2011 and maintaining an effective hearing at that time. Again, I anticipate that the parties will continue to co-operate to facilitate a hearing and determination of the substantive application on the program now in place.

SENIOR DEPUTY PRESIDENT

Appearances:

H. Borenstein SC for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

F. Parry SC for Thiess Degremont Joint Venture.

Hearing details:

2011.
Melbourne:
September 12.

 1   AG2009/24021;  PR992391. 

 2   Second Affidavit of Mr Julian Anthony Rzesniowiecki in Federal Court of Australia proceedings in VID 899 of 2011, at para 35.

 3   Ibid at para 35.

 4   Ibid, at para 36.

Printed by authority of the Commonwealth Government Printer

<Price code C, AE873094  PR514523>