Energy Queensland Limited v Stephen Ward - [2018] FWC 3096

[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

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…

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

Case: [2018] FWC 3096
Decision Date: 1 JUNE 2018

CaseChat Overview and Summary

Energy Queensland Limited sought an appeal against the directions and order to produce issued by Commissioner Spencer at Brisbane on 16 May 2018, in matter number C2018/679. The primary dispute centred around the Commissioner's decision to direct Energy Queensland Limited to produce specific documents and records related to its billing practices. The appellant argued that the order was overly broad and potentially prejudicial, while the respondent contended that the documents were necessary for the fair administration of justice in the ongoing proceedings.

The key legal issues before the court were the scope and limits of the Commissioner's power to issue production orders and the principles governing the admissibility and relevance of documents in administrative proceedings. The court needed to determine whether the Commissioner had acted within the bounds of his statutory authority and whether the order was proportionate and relevant to the issues in dispute. Additionally, the court considered whether the documents in question were necessary for the respondent to effectively prepare and present its case.

The court, after careful consideration, found that the Commissioner had not exceeded his authority in issuing the production order. The court held that the Commissioner's decision was within the statutory framework and was proportionate to the needs of the proceedings. The court also determined that the documents in question were relevant and necessary for the fair administration of justice, as they pertained directly to the respondent's allegations concerning billing practices. Consequently, the appeal was dismissed, and the order to produce was upheld.

The court's final orders included the dismissal of Energy Queensland Limited's appeal against the directions and order to produce issued by Commissioner Spencer. The court confirmed the validity of the Commissioner's decision and mandated the production of the specified documents by Energy Queensland Limited.

Orders