Domino's Pizza Enterprises Limited T/A Domino's v Shop, Distributive and Allied Employees Association

[2018] FWC 146

[2018] FWC 146

FAIR WORK COMMISSION

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 materials that would be handed up in the matter would be treated as confidential and that the whole process would be regarded as confidential.

As a result of that, [Domino’s] disclosed documents that it would regard as commercial-in-confidence and that it would never have tendered publicly had it been informed that they may be at some point disclosed publicly.’ 3

[9] RAFFWU said that as a bargaining representative, it should have been involved in the s.240 process. It submitted that:

‘The principles of open justice apply. They were dealt with in MFB v UFU.’ 4

[10] RAFFWU said that it was seeking the information on the file for bargaining purposes and would keep matters confidential that it obtained as part of that process.

Consideration

[11] Under s.240 of the FW Act, a bargaining representative for a proposed enterprise agreement may apply for the Commission to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.

[12] The Commission may only arbitrate a dispute with the agreement of the bargaining representatives. 5

[13] Section 595 of the FW Act deals with the powers of the Commission to deal with disputes. Section 595(2) states:

‘(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.’

[14] In the matter before me, the Commission had generally proceeded by way of a series of conferences. Section 592 of the FW Act states:

‘(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public….

(4) At a conference, the FWC may:

(a) mediate or conciliate; or

(b) make a recommendation or express an opinion.

(5) Subsection (4) does not limit what the FWC may do at a conference.’

[15] The principle of ‘open justice’ was dealt with in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd. 6

[16] The Full Bench in that decision referred to the desirability of the activities of the Commission being open to public scrutiny. It said that:

‘The Commission and its predecessors have had a longstanding practice that in the absence of special circumstances or an order to the contrary, Commission files are open to the public’. 7

[17] That statement does, however, need some qualification. There are certain types of matters dealt with by the Commission that are inherently confidential. A distinction must be made between the ‘determinative’ function of the Commission and its ‘conciliation’ or ‘mediation’ function. The latter function is normally conducted by way of conferences. Section 592 of the FW Act specifically states that such conferences are to be confidential, unless the Commission member conducting the conference directs otherwise.

[18] There are good policy reasons why conciliation is normally conducted in private. Consistent with the submissions of both the SDA and Domino’s, confidentiality increases the likelihood that parties will be frank and open in their discussions, including in the exchange of information. The provision of advice, the expression of opinions and the making of recommendations by the Commission itself are also common features of conciliation. These, likewise, will normally (though not universally) be most effective if made on a confidential basis.

[19] The file in question contains a number of documents that were provided by the respective parties and the Commission to each other on a confidential basis as part of the conciliation process. It would therefore be inappropriate to allow the file to be inspected by someone who was not a party to that process.

SENIOR DEPUTY PRESIDENT

Appearances:

J Cullinan for Retail and Fast Food Workers Union Incorporated.

H Lepahe, solicitor, with T van Schyndel and D King for Domino’s Pizza Enterprises Limited.

W Friend QC with R Patena for the Shop, Distributive and Allied Employees Association.

Hearing details:

Sydney with video links to Melbourne and Brisbane.

2018.

January 8.

 1   B2017/636.

 2   PN26-7.

 3   PN176-7.

 4   PN199.

 5   Fair Work Act 2009 (Cth) s.240(4).

 6   [2016] FWCFB 8413.

 7 Ibid [26].

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