Energy Queensland Limited v Stephen Ward
[2018] FWC 3096
•1 JUNE 2018
[2018] FWC 3096
The attached document replaces the document previously issued with the above code on 1 June 2018.
By amending name in paragraph [5]
Ammy Lewis
Associate to Vice President Hatcher
Dated 19 June 2018
| [2018] FWC 3096 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Energy Queensland Limited
v
Stephen Ward
(C2018/2680)
| VICE PRESIDENT HATCHER | SYDNEY, 1 JUNE 2018 |
Appeal against Directions and Order to Produce of Commissioner Spencer at Brisbane on 16 May 2018 in matter number C2018/679.
Introduction and background
Energy Queensland Limited (Energy Queensland) has lodged an appeal against the decisions made by Commissioner Spencer on 30 April, 16 May and 21 May 2018 in respect to the issuing of:
(a)an order (Order) for Energy Queensland to produce further documents relating to specified allegations made against a certain manager (Manager);
(b)a direction (Direction) for Energy Queensland to file and serve a copy of the complete Investigator’s Report in relation to the allegations against the Manager.
The notice of appeal includes an application for a stay of the Order and the Direction pending the hearing and determination of the appeals. The stay application is opposed by Mr Ward and is the subject of this decision.
The background of this matter is as follows. Mr Ward is an employee of Energy Queensland. On 9 February 2018 he lodged an application under s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute under the dispute settlement procedure in clause 2.1 of the Energy Queensland Union Collective Agreement 2017 (Agreement). The dispute, in broad compass, concerns the following matters:
- Mr Ward has been employed by Energex Limited in its property services group since 1996.
- Energex was merged with Ergon Energy Corporation Limited to form Energy Queensland.
- Mr Ward was required to apply for new positions in Energy Australia to maintain his employment.
- He applied for two positions, but was unsuccessful. He was then invited to re-apply for one of those positions, but was again unsuccessful. He then applied for two lower classification roles, but was unsuccessful.
- Recruitment to the positions in question was by a merit selection process overseen by the Manager.
- Mr Ward alleged that Energy Queensland did not comply with its own Merger Recruitment Guidelines in respect of the recruitment process for the new positions, including by appointing persons to positions who were not eligible to be appointed.
The dispute was the subject of a hearing before the Commissioner on 18, 19 and 30 April 2018. It emerged in evidence during the final day of the hearing that the Manager had since February 2018 been under investigation over a number of allegations of misconduct, and that an external investigator had been commissioned to prepare and provide a written investigation report (Investigator’s Report). The allegations included that the Manager had, in relation to the recruitment process, put people into roles that he wanted them to be in, and that appointments were not merit based. The non-appointment of Mr Ward was one of the particulars of this allegation.
Once this emerged, Mr Ward applied for the proceedings to be adjourned, so that the investigation into the Manager could be completed, and for the Investigator’s Report to be required to be produced once it was completed. Energy Queensland made submissions in opposition to this course, but the Commissioner determined to adopt it and made directions to facilitate the production of the Investigator’s Report and associated documents. The Commissioner stated her conclusions in this respect, and her reasons, as follows:
“THE COMMISSIONER: Right, thank you. I have listened intently to all of the matters raised. I have had the ability, as the parties are aware, to consider those matters that were put prior to the adjournment, the half-hour adjournment, and I have considered that the Commission has a serious obligation pursuant to the statute to ensure that the proceedings before the Commission are conducted in an efficient, fair, orderly and appropriate manner. Given that it has become apparent today that the document, as marked exhibit 10, has been handed up - 11, my apologies - it is considered that on the basis of the details of the allegations as set out in the document that is marked exhibit 11 and provided to the Commission, that there is on the face of the matter relevant issues between the application before the Commission and the allegations referred to for investigation.
Such matters potentially provide procedural fairness considerations for the hearing and whether the outcome of the investigation would impact on the determination of the matter or would be a relevant document to be taken into consideration in the proceedings and the determination of the matter. Certainly, I consider it's relevant as to how the proceedings would continue. The applicant's representatives have raised the adjournment and sought an adjournment of the proceedings at this point.
It is considered that without the investigation report and the relevant documents as sought which we will revisit, this may provide prejudice to a range of parties in this matter in terms of the cost, length and manner in which the proceedings are executed. The matters that Mr Osborne in his reply has argued regarding the relevance or otherwise of the investigation may well be borne out, but that is only a matter that can be considered once that investigation is undertaken and the report is provided.
However, to provide the adjournment with information and to allow for the information about the completion of the investigation and the provision of the report will allow all parties to be fully informed and to provide full consideration of natural justice issues owed to the applicant, the respondent and also to [the Manager].[1] Procedural matters regarding the proposed orders for confidentiality and non-publication can be assessed, but as stated, I intend to provide those for the submissions prior to the adjournment in terms of the transcript, document exhibit 11, and for the current transcript in relation to these proceedings after the adjournment.
I also intend to allow for all of the parties to be fully informed in relation to the outcome of the investigation and matters surrounding that and I consider it is relevant to the proceedings before the Commission. Accordingly, I intend to grant the adjournment today with conditions in place. I would direct for the applicant representatives to provide in writing the discovery orders as set out and to do so as quickly as possible, but by 12 o'clock tomorrow. I will provide orders in relation to confidentiality and non-disclosure, as I have said, in relation to exhibit 11, and the transcript. I will direct for the investigation report to be provided as soon as possible and for an update to be confirmed to the Commission and the applicant's representatives by a date being a fortnight from this Friday.”[2]
On 1 May 2018 Mr Ward filed an application for a notice to produce the Investigator’s Report and other documents, and the following day Energy Queensland sent the Commissioner a letter setting out its reasons why the order sought by Mr Ward should not be made. On 8 May 2018 the Commissioner listed the matter for a mention on 17 May 2018.
Mr Ward filed written submissions in support of his application on 11 May 2018, and on 15 May 2018 Energy Queensland filed written submissions in response. The latter submissions were nine pages in length, were settled by senior counsel, and addressed contentions concerning relevance, insufficient particularity, a lack of legitimate forensic purpose/“fishing” expedition, abuse of process, confidentiality, oppression and prejudice to third parties.
On 16 May 2018 the Commissioner issued the Order and Direction in their initial form, with a date of compliance of 23 May 2018, together with an order made pursuant to s 593(3)(d)(ii) and s 594(1)(c) that the document and Investigator’s Report to be produced pursuant to the Order and Direction be confidential and prohibited from publication (Confidentiality Order). In a covering email, the Commissioner’s reasons for issuing the Order and Direction were stated to be as follows:
“Full reasons for this decision will be given in the Commission’s reasons for decision in respect of the substantive matter. In summary terms, the Commissioner has determined to issue this Order on the basis of the current status of the matter, for the following reasons:
· On the materials provided, there are commonalities between elements of Mr Ward’s application and the alleged matters pertaining to the Respondent’s “investigation” (as per confidential Exhibit 11);
· That the Respondent is aware of the allegations regarding Mr Ward’s non-appointment specifically, and is investigating them (noting they are no more than allegations at this stage). This is relevant to the Commission’s determination of the matter;
· The relevance of allegations relating to the appointment or non-appointment of persons other than Mr Ward have not been made out;
· The terms of reference issued to the investigator are not currently relevant to Mr Ward’s dispute given that the Commission is not inquiring into that process, but that the investigation report be provided;
· In addition, the Commission would in no way be bound by the outcome or conduct of the investigation in any event;
· Those documents that are sought on the basis “when finalised”, cannot presently be the subject to an Order to produce given that it is well established that an Order cannot require the creation of a document and a document that is sought must have some particular certainty. The Commission will not issue an Order with some indeterminate time for compliance;
· The production of the documents and fairness to the parties in this matter needs to be weighed against the encroachment on the interests also of the party subject to the investigation.”
The covering email also advised the parties that the mention listed for the following day was cancelled. In this respect the email stated: “In consideration of the range of matters raised and the interests of managing the parties’ costs and ensuring the efficient conduct of the matter, the Commissioner intends to delist the Mention currently listed for tomorrow.”
On 17 May 2018 Energy Queensland sent correspondence to the Commissioner applying to have the Order and Direction set aside or, in the alternative, varied to provide that redactions could be made in the documents produced to exclude matters not relevant to Mr Ward’s matter.
On 18 May 2018 Energy Queensland lodged the appeal in this matter. The notice of appeal in the form then filed challenged the decision or decisions of 30 April and 16 May 2018.
On 21 May 2018 the Commissioner advised the parties, by email, that she had rejected Energy Queensland’s primary application to set aside the Order and Direction, but granted its alternative application to vary the Order and Direction to permit redaction of the relevant documents. The Order and Direction were re-issued in varied form consistent with this outcome, with a new date of compliance of 1 June 2018.
Energy Queensland has amended its notice of appeal to add the Commissioner’s 21 May 2018 decision as being the subject of the appeal. The amended notice of appeal contains 11 grounds of appeal contending that the Commissioner erred by:
- failing to consider or misapplying the legal principles relevant to requiring the production of documents pursuant to s 590(2) of the FW Act;
- taking into account irrelevant considerations and failing to take into account relevant considerations;
- finding that the documents to be produced have relevance to the proceedings before her;
- failing to consider or give weight to the requirement that the documents be sought for a proper purpose, including for a legitimate forensic purpose, and that it not be a fishing expedition;
- failing to consider or give weight to the requirement that the documents sought be appropriately particularised;
- failing to consider or give weight to the requirement that the production of the documents not be oppressive;
- failing to provide reasons or adequate reasons for her decisions;
- requiring the Investigator’s Report be produced pursuant to a direction and not an order under s 590(2);
- requiring the production of the Investigator’s Report when it did not exist at the time the Direction was issued;
- failing to provide Energy Queensland with procedural fairness, in that it was denied the opportunity to fully present its position at a hearing, the mention listed on 17 May 2018 was cancelled on the afternoon of 16 May 2018 without prior notice to the parties, and its submissions were given no or inadequate consideration; and
- exercising her discretionary power under s 590(2).
The amended appeal notice contends that permission to appeal should be granted because:
it was in the public interest that the Commission not fall into error and provide parties with procedural fairness;
the decisions involved errors of law, and were inconsistent with accepted tests and authorities;
Energy Queensland was denied procedural fairness;
there were substantial and significant issues of law to be determined in the appeal;
the documents required to be produced affected the interests of third parties; and
the confidentiality of investigations of this type were essential to the integrity and viability of Energy Queensland’s processes for matters of this type.
At the stay hearing, Energy Queensland submitted that its appeal was arguable with reasonable prospects of success. It submitted that under clause 2.1.22 of the Agreement, it had an independent right of appeal such that there was no requirement for permission to appeal to be granted, but alternatively relied on the grounds for permission set out in its notice of appeal. In relation to the substantive merits of the appeal, Energy Queensland focused upon the grounds of appeal concerning the lack of relevance of the documents to be produced, the lack of reasons for the decisions, the alleged denial of procedural fairness, and the lack of clarity as to the power which the Commissioner exercised in directing the production of the Investigator’s Report. It was submitted that the Commissioner’s acknowledgement in the decision of 16 May 2018 that the Commission would not be bound by the outcome of the investigation confirmed a failure to apply the correct test and demonstrated that the documents were not relevant to the issues required to be determined. It was also submitted that the issue of the Direction at a time when the Investigator’s Report did not yet exist was inconsistent with the Commissioner’s conclusion in her reasons that the Commission could not order the creation of a document by way of an order for production.
In relation to the balance of convenience, Energy Queensland submitted that the refusal of the stay would effectively extinguish its appeal rights, since it would then be required to produce the documents before the hearing of the appeal and the ultimate appeal decision would not have any practical effect. Mr Ward would suffer little or no prejudice from the grant of a stay, since if the appeal was unsuccessful the documents would still be produced in time for him to use in his case, in circumstances where it was likely that the hearing before the Commissioner would resume in late July 2018.
Consideration
The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd.[3] Paragraph [5] of that decision states:
“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”
The above passage assumes that the requirement for permission to appeal applies in all cases. Where it does not (noting, as earlier stated, that Energy Queensland submitted in this case that it has an independent right of appeal under clause 2.1.22 of the Agreement and therefore does not require permission), that will of course not be relevant in a consideration of whether the applicant for a stay has an arguable case with reasonable prospects of success.
In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity properly to peruse the case materials.[4]
In considering whether Energy Queensland has an arguable case with reasonable prospects of success, I have had the opportunity, in addition to the parties’ written and oral submissions for the stay hearing, to peruse the following documents:
Mr Ward’s application for the Commission to deal with his dispute;
confidential exhibit 11, which sets out the relevant allegations against the Manager;
the transcript of the hearing on 30 April 2018;
Energy Queensland’s correspondence of 2 May 2018, its submissions of 15 May 2018 and its correspondence of 17 May 2018; and
the emails from the Commissioner’s chambers of 16 May 2018 and 21 May 2018 communicating the decisions concerning the Order and the Direction.
I am prepared to assume, in Energy Queensland’s favour, that clause 2.1.22 of the Agreement confers upon it a right of appeal in this case. However it is clear that whether it has any avenue for appeal at all and, if it does, whether it requires permission to appeal will be a live issue at the hearing of the appeal. Mr Ward submitted that clause 2.1.22 does not permit appeals from interlocutory decisions, only allows appeals from final arbitral decisions on a question of law, and excludes appeals under s 604 of the FW Act, with the result that the appeal is incompetent. I consider all those propositions to be reasonably arguable.
Energy Queensland’s appeal is from an interlocutory procedural decision of a discretionary nature. It would require the clearest demonstration of appealable error for a Full Bench to intervene in a decision of that nature. I am not satisfied, on the basis of the materials I have been able to consider, that an arguable case of that nature has been demonstrated.
The argument concerning the relevance of the documents appears to me to be misconceived. The test is whether the documents sought have apparent relevance to the issues in the proceedings.[5] The fundamental issue in the dispute is whether the merit selection processes for the new positions for which Mr Ward applied miscarried. The Investigator’s Report, and the documents to be produced pursuant to the Order, concern whether there was misconduct by the Manager in respect of those very merit selection processes. The apparent relevance of the subject matter of those documents to the issue in dispute is so obvious as to be self-evident. That the Commissioner is not bound by any outcome determined in the Investigator’s Report does not diminish its apparent relevance, and is beside the point. It will of course be for the Commissioner to determine ultimately what weight, if any, is to be given to the documents if they are ultimately admitted into evidence. They may disclose facts which bear upon the issue in dispute, and the conclusion reached by the external investigator, although not binding, may well be persuasive. But even if that ultimately turns out not to be the case, that does not mean the documents should not be required to be produced. Mr Ward clearly has a legitimate forensic purpose in seeking their production.
The argument that Energy Queensland was denied procedural fairness appears to be very weak. It was able to articulate its opposition to any requirement to produce the Investigator’s Report in oral submissions at the hearing on 30 April 2018 and in its correspondence of 2 May 2018, its submissions of 15 May 2018 and its correspondence of 17 May 2018. The fact that the mention listed for 17 May 2018 was cancelled does not negate the numerous opportunities which were afforded to Energy Queensland to advance its case. That the Commissioner gave consideration to Energy Queensland’s submissions is demonstrated by the fact that the Commissioner issued the Confidentiality Order in response to the concerns expressed in its submissions about the confidential and personal nature of the contents of the documents to be produced, and then varied the Order and the Direction as requested by Energy Queensland to allow it to redact material in the documents not relevant to Mr Ward’s selection process.
The argument concerning a failure to give reasons is equally weak. To the extent that reasons are required at all for the making of an interlocutory decision, such reasons need only be brief and explain the essential basis for the decision. The transcript of the hearing on 30 April 2018 discloses that the Commissioner explained, albeit briefly, her reasons for adjourning the hearing and requiring the production of the Investigator’s Report, and the email from her chambers of 16 May 2018, as earlier set out, identified clearly the basis upon which the Order and Direction were issued.
Finally, given that it is now accepted that the Investigator’s Report is in existence, the question of whether the Direction ought to have been made at a time when it did not yet exist appears to me to be of academic interest only. It appears equally academic that the Commissioner did not clearly identify the power being exercised in making the Direction in circumstances where Energy Queensland does not squarely contend that no such power exists at all. It seems to me that the Direction could equally have been made under s 590 of the FW Act or pursuant to clauses 21.13 and 21.20(d) of the Agreement.
Energy Queensland did not for the purpose of its stay application articulate any argument in support of its appeal grounds that the Order and Direction were oppressive or lacked sufficient particularity to permit compliance with them. Any merit in these propositions is not perceivable.
Because I am not satisfied that Energy Queensland has demonstrated that it has an arguable case with reasonable prospects of success, it is not necessary for me to consider the issue of the balance of convenience. It is sufficient to note that I cannot identify any actual prejudice to Energy Australia that would arise from compliance with the Order and Direction. The Confidentiality Order, the right to redact the documents, and the general rule against the use of the documents for purposes other than in connection with the proceedings will protect the relevant interests involved. If Energy Queensland is ultimately successful in its appeal, the documents will need to be returned and will not be available for use in the proceedings. Even if the appeal is unsuccessful, Energy Queensland will have a further right to be heard if the admission of the documents into evidence is sought by Mr Ward.
The application for a stay order is dismissed.
VICE PRESIDENT
Appearances:
S. Moody of counsel on behalf of Mr Stephen Ward.
C. Murdoch QC on behalf of Energy Queensland Limited.
Hearing details:
2018.
Sydney:
28 May.
<PR607598>
[1] Name redacted
[2] Transcript 30 April 2018 PN2692
[3] [2000] AIRC 785, Print S2639
[4] Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]
[5] Clermont Coal Operations Pty Ltd v Brown & Dews and Others[2015] FWCFB 2460 at [19]
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