REASONS FOR DECISION

Fair Work Act 2009
s.240—Bargaining dispute

Domino’s Pizza Enterprises Limited T/A Domino’s
v
Shop, Distributive and Allied Employees Association
(B2017/636)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 16 JANUARY 2018

Application by Retail and Fast Food Workers Union Incorporated to inspect the Commission’s file in respect of dispute – application dismissed.

[1] At the conclusion of a hearing held on 8 January 2018, I refused to allow Retail and Fast Food Workers’ Union Incorporated (RAFFWU) access to the Fair Work Commission’s (the Commission’s) file for an application made by Domino Pizza Enterprises Limited (Domino’s) under s.240 of the Fair Work Act 2009 (Cth) (FW Act). These are the reasons for that decision.

[2] On 26 July 2017, Domino’s made an application 1 for the Commission to deal with a bargaining dispute, pursuant to s.240 of the FW Act. The respondent was named as the Shop, Distributive and Allied Employees’ Association (SDA).

[3] The application indicated that the parties had been bargaining for a new enterprise agreement to cover all delivery and in-store employees of Domino’s and its franchisees. While progress had been made, the parties remained apart on two significant issues.

[4] The Commission subsequently convened a number of conferences, and the parties (and the Commission) exchanged a number of documents. Documents relating to those conferences, including material exchanged between the parties to the dispute (and the Commission) were placed on a Commission file (which is kept both in hard copy and electronically).

[5] On 29 December 2017, Josh Cullinan, Secretary of RAFFWU, sent an email to the Registry of the Commission, which contained the following:

‘We seek access to the file in B2017/636. We understand it is a bargaining matter filed by Domino’s Pizza Enterprises Ltd.

We seek access to either an electronic file (emailed) or a physical copy of the file in the Melbourne registry for inspection and/or copying.

We are a bargaining representative in relation to the agreement the subject of consideration in B2017/636.’

[6] On 3 January 2018, Domino’s indicated that it objected to RAFFWU being given access to the file. The Commission listed a hearing in 8 January 2018 to address RAFFWU’s request and the objection made by Domino’s.

The hearing

[7] At the hearing, the SDA (in the context of seeking permission for legal representation) said that the application to have access to the Commission’s file raised a very significant question in relation to the integrity of the processes of the Commission.

‘The files concern, among other things, discussions and conferences between the SDA and Domino’s under the auspices of the Commission which were specifically agreed to be confidential.

Now, if those sorts of discussions are made available to third parties, one can readily see that there will be potentially serious ramifications concerning the willingness of parties to engage in those types of discussions in the future…’ 2

[8] Domino’s said that:

‘…at the very outset of these proceedings the Commission made it very clear that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Domino's Pizza Enterprises Limited T/A Domino's v Shop, Distributive and Allied Employees Association [2018] FWC 146
Case: [2018] FWC 146
Decision Date: 16 JANUARY 2018

CaseChat Overview and Summary

The case before the court was an application by the Retail and Fast Food Workers Union Incorporated to inspect the file of the Fair Work Commission in relation to a dispute between Domino's Pizza Enterprises Limited and the Shop, Distributive and Allied Employees Association. The applicants sought to inspect the file to better understand the Commission's reasoning and decision-making process regarding the dispute. Domino's opposed the application, arguing that it would breach the privacy and confidentiality of the proceedings.

The primary legal issue before the court was whether the applicants had a legitimate need to inspect the Commission's file and if such inspection was necessary in the interests of justice. The court considered whether the applicants had demonstrated a sufficient connection to the proceedings and whether the inspection was required to ensure a fair and just outcome. Additionally, the court evaluated the potential prejudice that might result from the disclosure of the file to the applicants.

In dismissing the application, the court found that the applicants had not demonstrated a legitimate need to inspect the file. The court held that the applicants had not established a sufficient connection to the proceedings to warrant an inspection of the file. Furthermore, the court considered that the inspection of the file was not necessary in the interests of justice, as the applicants had not shown that the inspection was required to ensure a fair and just outcome. The court also found that the disclosure of the file to the applicants would cause significant prejudice to the parties involved in the dispute.

Accordingly, the court dismissed the application by the Retail and Fast Food Workers Union Incorporated to inspect the Fair Work Commission's file. The court emphasised the importance of maintaining the confidentiality and integrity of the Commission's proceedings and concluded that the potential prejudice to the parties outweighed any potential benefit of inspecting the file. The court did not make any further orders beyond dismissing the application.

Orders