Fair Work Australia
[2011] FWA 384
•21 JANUARY 2011
[2011] FWA 384 |
|
DECISION |
Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights
Fair Work Australia
(RE2010/3826)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 21 JANUARY 2011 |
Regarding the Order [PR502694] granted by Commissioner Hampton in Adelaide on 14 October 2010 in matter number RE2010/3720 - FWA acting on own motion - request for order for production of documents.
[1] On 9 November 2010 Henry Davis York, solicitors representing Baiada Poultry (Adelaide) Pty Ltd (Baiada) wrote to the Office of the Fair Work Australia (FWA) President, Justice Giudice. This correspondence requested that FWA take action of its own initiative under s.508(1) of the Fair Work Act 2009 (the FW Act) with respect to the National Union of Workers (NUW) and two of its officials. In particular, in relation to the conduct of the two officials who had entered the Baiada site situated at Wingfield, South Australia pursuant to an order made by Commissioner Hampton on 15 October 2010. In the letter of 9th November 2010, the solicitors representing Baiada detailed various allegations involving conduct which it asserted was both improper and unlawful. For the purposes of this decision, the letter of 9th November is referred to as the Baiada request.
[2] The Baiada request was referred to me for consideration. It was the subject of a brief directions hearing on 29 November 2010 and has been listed for hearing in February 2011. At the directions hearing on 29 November 2010, the parties agreed on dates for the provision and exchanging of witness statements and evidentiary material.
[3] Subsequent to this directions hearing, Baiada provided both FWA and the NUW with a significant number of affidavits, statements and evidentiary material. Whilst none of this material has been formally admitted at this stage, I have noted it in considering the matters addressed in this decision.
[4] I have also noted that the NUW has undertaken to provide witness statements and evidentiary material in response to the Baiada material by 21 January 2011. In each case this material will be the subject of consideration in the February 2011 hearing.
[5] Following advice from the parties to the effect that they were unable to agree on the provision of documents sought by Baiada from the NUW and a request made by Baiada for an order for the production of documents held by the Australian Broadcasting Corporation (ABC), the matter of what orders for production should be made was the subject of a hearing on 22 and 23 December 2010. This decision deals only with this issue.
[6] The Baiada request that FWA act of its own initiative is made pursuant to s.508. This section states:
“508 FWA may restrict rights if organisation or official has misused rights
(1) FWA may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if FWA is satisfied that the organisation, or an official of the organisation, has misused those rights.
Note: Only a Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).
(2) The action that FWA may take under subsection (1) includes the following:
(a) imposing conditions on entry permits;
(b) suspending entry permits;
(c) revoking entry permits;
(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;
(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;
(f) making any order it considers appropriate.
(3) FWA may take action under subsection (1):
(a) on its own initiative; or
(b) on application by an inspector.
(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:
(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or
(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:
(i) because the exercise of the right is excessive in the circumstances; or
(ii) for some other reason.”
[7] Before addressing the orders for production sought by Baiada, it is appropriate that I provide further background material which I have taken into account in reaching conclusions on these initial issues.
[8] Baiada is a major national poultry processing business with extensive operations throughout Australia. It operates under a number of commercial trading names and has a significant number of collective agreements with its employees and their union representatives.
[9] On 15 October 2010, Hampton C made an order under s.483AA of the FW Act to allow NUW permit holders, Mr Tony Snelson and Ms Elizabeth Pierce to inspect, obtain access to, and make copies of non-member records and documents at the Baiada Wingfield worksite.
[10] Allegations relative to employment practices at this worksite were, around this time, the subject of media coverage, including, but not limited to the ABC Lateline program.
[11] Also, at around this time, the NUW lodged an unfair dismissal application pursuant to s.394 on behalf of a member and former Baiada employee, and a second application pursuant to s.372, which asserted that Baiada was in breach of the general protections provisions of the FW Act. Neither application has been resolved and I am aware that the s.394 application is scheduled for arbitration.
[12] Baiada asserts the NUW has misused the rights conferred on it under Part 3-4 of the FW Act as part of a campaign of harassment directed at forcing Baiada into a membership agreement at the Wingfield site by:
- seeking, without reasonable grounds and on the basis of unsubstantiated assertions, the application for a s.519 exemption certificate and a s.483AA order (the matters which were dealt with by Hampton C),
- engaging in conduct and requesting information, when on the Baiada, Wingfield site on 18 and 19 October 2010, beyond the rights conferred on it under Part 3-4, and
- mis-using information obtained by it pursuant to the exemption certificate issued by Hampton C and the order made under s.483AA.
[13] The evidence proposed by Baiada in support of these assertions goes to discussions between senior Baiada personnel and senior NUW officials, the conduct of the NUW officials at the Baiada Wingfield site and at other Baiada worksites and the position of various Baiada employees with respect to the actions of the NUW.
[14] The NUW position is that FWA’s powers pursuant to s.508 should not be utilised in these circumstances as the basis upon which any restriction of rights under that section can be made, has neither been properly asserted nor established.
[15] The NUW has made two significant concessions with respect to the detailed allegations put by Baiada. Firstly, the NUW agrees that it provided personalised letters to Baiada employees on 9 and 10 November 2010 about a union meeting on 13 November 2010. Secondly, the NUW concedes that it published video footage of the Baiada Wingfield worksite on its website and that this video footage was taken during an inspection of that site by Mr Snelson 1. The details relating to this film have not yet been disclosed to me.
[16] The NUW asserts that the documents sought to be discovered by Baiada will not provide information relative to the other allegations made by Baiada and that, in substantial measure they constitute a "fishing expedition". Further, that the information sought by Baiada would undermine the efficacy of the approach adopted by Hampton C in the making of the s.483AA order, which allowed him to conclude that there was a reasonable suspicion of a contravention of the FW Act.
The Orders sought
[17] Baiada initially sought that orders for the production of documents be made with respect to both the federal and state registered branches of the NUW. The proposed orders with respect to the state branch are no longer pursued. Further, in light of the NUW agreement that Mr Snelson took the video which was subsequently published on the NUW web site, Baiada no longer pursued various aspects of the orders which were initially sought.
[18] There is no dispute that the orders sought are pursuant to s.590(2)(c) of the FW Act. This provision relevantly states:
“590 Powers of FWA to inform itself
....
(2) Without limiting subsection (1), FWA may inform itself in the following ways:
(a) by requiring a person to attend before FWA;
(b) by inviting, subject to any terms and conditions determined by FWA, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWA;
....”
[19] The orders pursued with respect to the federally registered NUW state:
“Schedule
“ABC” means the Australian Broadcasting Corporation.
“Baiada Group” means Baiada Holdings Pty Limited and any of its related bodies corporate (and subsidiaries of its subsidiaries), including without limitation Baiada Poultry Pty Limited and BPL Adelaide Pty Limited.
“Document” has the meaning given to it in the Dictionary to the Evidence Act 1995 (Cth) and includes, but is not limited to, files, file notes, diary notes, statements, emails, text messages, and correspondence (and includes drafts of any such documents) between, received by or originating from any employee, contractor or agent of the Australian Broadcasting Corporation.
“Moss Road Site” means the premises of BPL Adelaide Pty Ltd, also known as Adelaide Poultry at 22 Moss Road, Wingfield, South Australia.
“NUW” means the National Union of Workers in its National or State organisation.
Recording of the Moss Road Site
1. Any document recording any communication between any representative of the NUW and any employee, contractor or agent of the Australian Broadcasting Corporation in relation to the Lateline program and the Baiada group between 1 August 2010 and 29 November 2010.
2. Any document disclosing information to any employee, contractor or agent of the Australian Broadcasting Corporation in relation to the Lateline program in relation to the Baiada group.
3. deleted.
4. deleted.
5. Any document relating to the disclosure of any film, recording or visual image of the Moss Road Site to any person or entity, and copies of any disclosures.
6. Any document relating to attendance at the Moss Road Site by any employees, contractors or agents of the Australian Broadcasting Corporation.
7. The original of the recording of the Moss Road Site displayed on the NUW web site.
NUW Flyers
8. In relation to the NUW Flyer “What are the Facts” (Annexure A):
(a) any document recording or comprising the evidence on which the NUW relied to make the following statements:
(i) “Adelaide Baiada workers said they were told by managers that they would not join the union.”
(ii) “Workers showed us their payslips and told us about unfair treatment.”
(iii) “Your union met with Baiada and asked them to fix it, Baiada refused.”
(iv) “For 7 weeks workers have wanted Baiada to meet their union. Baiada refused.”
(v) “Baiada Laverton (Victoria): * forced shift changes; * some workers paid $9/hr cash; * casuals denied permanent jobs.”
(vi) “Baiada Farmers (Queensland): * workers were underpaid; * major health and safety issues.”
(vii) “Baiada Wingfield (South Australia): * workers underpaid ; * long term casuals; * lawyers paid to follow officials around.”
(viii) “Baiada Osbourne Park (West Australia): * Casuals denied permanent jobs; * Won’t take union dues out of pay.”
(ix) “Conducted a major union wages inspection providing that workers have been underpaid.”
(b) A copy of the payslips referred to in the flyer.
9. In relation to the NUW Media Release dated 24 November 2010 (Annexure B), any document recording or comprising the evidence on which the NUW relied to make the following statements:
(a) “Every day we hear new stories of exploitation and hardship from the mostly migrant Baiada work force.”
(b) “We believe Baiada may be in breach of several sections of the Coles’ Ethical Sourcing Code, including wages and benefits, freedom of association and the standard of sub-contractors.”
(c) “Lilydale chicken workers ... work in sometimes unsafe and dangerous conditions.”
10. In relation to the NUW letter to the Coles Group Limited dated 19 November 2010 (Annexure C), any document recording or comprising the evidence on which the NUW relied to make the following statements:
(a) “We believe that ... Baiada Poultry ... do not share your commitment to the Coles Ethical Sourcing Code, and are concerned they may be breaching several sections of that Code.”
(b) “Workers also allege that pay rates are determined by ethnicity with some being paid below minimum wage.”
(c) “In addition, they allege management told them that if they make WorkCover claims they will never work in Australia again.”
(d) “We are concerned that Baiada Poultry may be in breach of [the Ethical Sourcing Code] in relation to the sections headed ‘Wages and benefits’, ‘Freedom of Association’ and ‘Sub-contractors’.”
11. In relation to the NUW letter to Westpac Bank dated 19 November 2010 (Annexure D), any document recording or comprising the evidence on which the NUW relied to make the following statements:
(a) “We assure you that the allegations against Adelaide Poultry are exactly that, a violation of human rights.”
12. In relation to the NUW Flyer - Saturday Union Meeting Report Back (Annexure E), any document recording what occurred at the meeting and actions taken as a result of the meeting.
13. In relation to the NUW letter to Lilydale Chicken Stockists dated 12 November 2010 (Annexure F), any document recording or comprising the evidence on which the NUW relied to make the following statements:
(a) “They allege insufficient medical attention is given in the event of injury.”
(b) “[T]hey are told that if they make WorkCover claims they will never work again in Australia.”
14. In relation to the letter to Joan Burton from the NUW (Annexure G):
(a) any document recording or comprising the evidence on which the NUW relied to make the statement: “we are very concerned that you personally may be being underpaid”;
(b) any document recording the “research and investigations” referred to in that letter;
(c) any document from which the NUW obtained Joan Burton’s name for the purpose of drafting the letter to her.
(d) any document used by the NUW to identify Joan Burton as an employee of Adelaide Poultry for the purpose of drafting the letter to her.
15. In relation to the letter to Erin Swatts from the NUW (Annexure H):
(a) any document recording or comprising the evidence on which the NUW relied to make the statement: “we are very concerned that you personally may be being underpaid”;
(b) a copy of the “research and investigations” referred to in that letter;
(c) any document used by the NUW to identify Erin Swatts as an employee of Adelaide Poultry for the purpose of drafting the letter to her.
(d) any document from which the NUW obtained Erin Swatts name for the purpose of drafting the letter to her.
16. In relation to the NUW Media Release - “Master Chef Informed of Caged Chicken Workers” (Annexure I), any document recording or comprising the evidence on which the union relied to make the statement “The chickens may be free range, but the workers are caged.”
17. In relation to the NUW Flyer “Union Suspects $500,00 owed to Adelaide Poultry Workers” (Annexure J):
(a) any document recording or comprising the evidence on which the union relied to make the statement “the money owed to workers could be as much as $500,000 or more”;
(b) any document recording or comprising the “investigations” to which reference is made in that flyer;
(c) any document recording how the sum of $500,000 was calculated.
NUW Website
18. In relation to the footage of the Moss Road Site obtained by the NUW and displayed on the NUW website and the statement on the NUW’s website regarding that footage (Annexure K):
(a) any document which records or shows any breaches of any laws or industrial instruments by Adelaide Poultry revealed by that footage;
(b) any document which records any information obtained by the NUW in response to its request to be contacted by “anyone who is willing to give relevant information about the work being performed in the video and conditions of the workplace.”
Transcript - FWA Proceedings for the Matter Numbers: RE2010/3719 and Re2010/3720
19. In relation to the Edited Transcript of the proceedings before Commissioner Hampton on 13 October 2010 for matter numbers RE2010/3719 and RE2010/3720, any document recording or comprising the evidence on which the NUW relied to make the following statements:
(a) At PN9: “[A] significant number of employees have made complaints firstly of numerous alleged contraventions of the relevant award.”
(b) At PN9: “[T]here have been complaints made in relation to intimidation and direction not to join the NUW.”
(c) At PN16: “What we suspect, and again we can only put it in that form at the moment, is sham independent contracting arrangements exist in at least some level at the site.”
(d) At PN23: “[W]e suspected a number of contraventions are occurring.”
(e) At PN23: “[T]he very real concern that we have that the company would alter documents if prided (sic) with due notice under the Act.”
(f) At PN23: “This is based on a number of factors but probably first and foremost is our view the company has altered documents in the past to their benefit.”
(g) At PN24: “[T]he company has demonstrated in the recent past its propensity to alter documents to their benefit.”
(h) At PN25: “We say that there is a very real chance that if the relevant notice was provided under the Act that the relevant documents being time and wages records and other wages slips could be altered, destroyed or otherwise interfered with to the benefit of the employer.”
(i) At PN26: “[T]hat below award minimum pay rates have been paid on the site.”
(j) At PN26: “That a range of casual loadings including below award minimum loadings have been paid.”
(k) At PN26: “That overtime has either not been paid or paid at base rates.”
(l) At PN26: “That shift work and weekend work has either not been paid or paid at a lower rate than the award minimum.”
(m) At PN26: “That there has been a failure to pay allowances.”
(n) At PN26: “That there has been a failure to pay appropriate superannuation contributions.”
(o) At PN26: “That rest pauses and meal breaks have not been given or there has been an inadequate amount of those breaks being given with reference to award minimum.”
(p) At PN27: “That there has been unpaid time for casual employees spent at the employer’s direction on site prior to shifts waiting to begin work.”
(q) At PN27: “[T]hat there has been a failure to provide pay slips, and also deficient pay slips which do not show things such as taxes payable on gross amounts.”
(r) At PN61: “[T]here are a significant number, and I think that number we can safely put in the several hundreds, of non-members who are along with members the victims of such contraventions.”
20. In relation to the Edited Transcript of the proceedings before Commissioner Hampton on 13 October 2010 for matter numbers RE2010/3719 and RE2010/3720 all payslips referred to in those proceedings.
Meeting with Sonia Takla
21. In relation to the meeting between Sonia Takla of Baiada Group and Mr Donnelly and Mr Roberts of the NUW on 8 September 2010, all documents recording or evidencing:
(a) the purpose of the meeting;
(b) the aim of what was to be achieved;
(c) what was said at the meeting;
(d) actions to be taken by the NUW after the meeting.
Baiada Group, Perth
22. In relation to the Baiada Group businesses in Perth, Western Australia, including Steggles Pty Ltd, all documents relating to:
(a) deleted;
(b) deleted;
(c) deleted;
(d) Any instruction, advice or direction issued following the meeting with Sonia Takla on 8 September 2010.
Moss Road Site
23. In relation to the NUW attendances outside the Moss Road Site from 1 September 2010 to date, all documents:
(a) Evidencing the intention of the attendance;
(b) Evidencing the purpose of the attendance;
(c) Giving direction, instructions or advice on what was to occur on the attendance;
(d) Recording what occurred on the attendance.
Fair Work Ombudsman
24. In relation to any complaint by the NUW to the Fair Work Ombudsman since 1 August 2010, any document which evidences, records or discloses the basis for a claim that any member of the Baiada Group has breached any industrial law, as defined in the Fair Work Act, or any award, agreement or instrument created under or enforceable under any such industrial law.
SafeWork SA
25. In relation in any complaint to SafeWork SA since 1 August 2010 in relation to the Moss Road Site, any document which evidences, records or discloses any breach by Adelaide Poultry of any occupational health and safety law or regulation.
Note: You may, with the consent of the issuing party, produce a copy, instead of the original of a document.”
[20] The order sought with respect to the ABC states:
“Schedule
“ABC” means the Australian Broadcasting Corporation.
“Baiada Group” means Baiada Holdings Pty Limited and any of its related bodies corporate (and subsidiaries of its subsidiaries), including without limitation Baiada Poultry Pty Limited and BPL Adelaide Pty Limited.
“Document” has the meaning given to it in the Dictionary to the Evidence Act 1995 (Cth) and includes, but is not limited to, files, file notes, diary notes, statements, emails, text messages, and correspondence (and includes drafts of any such documents) between, received by or originating from any employee, contractor or agent of the Australian Broadcasting Corporation.
“Moss Road Site” means the premises of BPL Adelaide Pty Ltd, also known as Adelaide Poultry at 22 Moss Road, Wingfield, South Australia.
“NUW” means the National Union of Workers in its National or State organisation.
1. Any document recording any communication between any employee, contractor or agent of the ABC and any representative of the NUW in relation to the Baiada Group (or any individual who works at or formerly worked at the Moss Road Site) between 1 August 2010 and 3 December 2010.
2. Any document containing any information in relation to the Baiada Group (or any individual who works at or formerly worked at the Moss Road Site) provided to any employee, contractor or agent of the ABC by any representative of the NUW between 1 August 2010 and 3 December 2010.
3. deleted.
4. deleted.
5. A copy of the “statements” to which reference was made by the journalist in the ABC Lateline program concerning the Baiada Group that aired on 21 October 2010.
6. Any document relating to the supply of any equipment by any employee, contractor or agent of the ABC to any representative of the NUW for the purposes of any film, recording or visual image being taken (or potentially being taken) of the Moss Road Site.
7. Any film, recording or visual image of the Moss Road Site provided to any employee, contractor or agent of the ABC by any representative of the NUW.
8. Any communication between any employee, contractor or agent of the ABC and any representative of the NUW in relation to the provision by the NUW to the ABC of any film, recording or visual image of the Moss Road Site.
9. Any document relating to the capturing of any film, recording or visual image of the premises of the Moss Road Site provided to any employee, contractor or agent of the ABC by any representative of the NUW.
Note: You may, with the consent of the issuing party, produce a copy, instead of the original of a document.”
[21] There is no disagreement as to the extent to which the approach adopted in Spiteri v O’Brien Glass Industries Ltd 2and APESMA v Airly Coal Pty Ltd3 are relevant to the discretion to issue orders for the production of documents.
[22] In APESMA Lawler VP adopted the approach set out by Munro J in Re Clerks Alcoa of Australia-Mining and Refining Consolidated Award 1985 4 in the following terms:
“The power of the Commission to issue a summons for the production of documents derives from s.111(1)(s) of the Act. In exercising its discretion to issue a summons or in respect of an application to set aside a summons, the Commission will generally be guided by the principles applied by the Courts although the Commission retains a broad discretion to decline to issue a summons or to vary or revoke the order constituted by a summons. The position was summarised by Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:5
“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.””
[23] The Vice President continued to address the stages through which a party may ultimately inspect documents, the subject of an order 5.
“There are distinct stages by which a party comes to inspect documents produced pursuant to a summons or subpoena. In National Employers’ Mutual General Insurance Association Ltd v Waind and Hill6 Moffitt P identified three steps:
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights and the function of the judge differs.”
Ordinarily, issues of confidentiality are relevant to the inspection stage, although this is not universally so and confidentiality can be relevant to whether production ought be required. The principles in relation to confidentiality as a ground for resisting compliance with a subpoena were considered by the West Australian Court of Appeal in Apache Northwest Pty Ltd v Western Power Corporation:
“The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail - "[T]he risk to the confidentiality of the information must be tolerated in the interests of the administration of justice", per King CJ in Alliance Petroleum Australia NL v The Australian Gas Light Company (supra), at 239, and see also at 238-239.
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 was a later case in which inspection was sought by the plaintiff, an unsuccessful tenderer, of tender documents held by the defendant. The defendant resisted inspection on the grounds of commercial confidentiality. The successful tenderers were given leave to intervene. At 38, Hayne JA, in whose judgment Winneke P and Phillips JA agreed, said:
"Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise."
His Honour went on to say that once the documents are inspected by the principals of the trade rival, the information which is revealed is known to the trade rival and cannot be forgotten. At 39, he continued:
"Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts."
He added (at 40):
"It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the parties seeking inspection and the party claiming confidentiality."
In the Santos (No 2) case, Perry J, at 18, also dealt with the issue of confidentiality. He said:
"Absent such a claim [an arguable claim for privilege or other legally recognised objection to production], the courts have consistently set their face against the assertion that documents are not liable to be produced because of their commercial sensitivity. It does not matter whether the argument arises in the context of inter parties discovery, discovery against a third party, or as is the case here, in the context of an application to strike out a subpoena directed to a stranger to the proceedings.
The stand which the courts have consistently taken is that there is no immunity from production attaching to documents only because of their commercial sensitivity, although where thought fit, the court or tribunal to whom they are produced will take all reasonable steps so far as is possible to keep such documents confidential."
At 21, he said:
"I have some difficulty in the suggestion that there can be degrees of confidentiality for this purpose. It seems to me that the weight of authority is overwhelmingly in favour of the view that however vigorously the claim for confidentiality is put forward, such a claim cannot amount to a ground upon which to strike out a subpoena, as opposed to affording a basis for the imposition of restrictions upon the use which may be made of documents once they are produced."
See also Hubbard v Hubbard [1948] VLR 480 and Ex parte Fielder Gillespie Ltd [1984] 2 Qd R 339 , at 341."
Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants' individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor.
Her Honour fully recognised the appellant's interest in the preservation of confidentiality. The provisions which she made to ensure the maintenance of that confidentiality, so far as reasonably practicable, were detailed, and there has been no suggestion to us that any additional provision should be made in this regard. We are not persuaded that her Honour was in error in her approach to the issue of confidentiality.
The final issue concerns oppression. In Hamilton v Oades (1989) 85 ALR 1, at 11, Deane and Gaudron JJ said:
"The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 340 and 344. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms "oppressive" and "vexatious" are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411."
This issue was also addressed by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710, at 719-720, where he said:
"If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld."
See also the Santos case (supra) at 54-56, per Debelle J, and the authorities there cited. (emphasis added)”
[24] Baiada has made serious allegations with respect to the NUW and various of its officers. I have noted that the Baiada correspondence of 9 November 2010 is specific in terms of its reference to two NUW permit holders, although it does briefly refer to other NUW personnel. I also note that, despite the concessions now made by the NUW, there is as yet, no significant information from these permit holders.
[25] The onus is clearly on Baiada to establish that FWA should act, of its own initiative in this matter. Absent the substantial amount of evidentiary material already provided, the application for these orders would clearly fail. However, I have considered the orders requested in the context of this material. Additionally, I have noted that the Baiada request makes a range of assertions as at 9 November 2010. If FWA decides to act pursuant to section 508, it is clearly not restricted to considering evidence relative to events before that date. For the purposes of consideration of this request for orders for the production of documents, I have adopted the general position that orders for material relative to events after the request fall outside of these initial considerations and are likely to introduce an element of open inquiry which is unwarranted at this time.
[26] I have adopted the position that the initial issue of whether FWA should act of its own initiative is most efficiently addressed by the provision of information in response to that provided by Baiada provided the approach summarised by Lawler VP in APESMA is applied.
[27] Depending on the evidence presented by the NUW and by Mr Snelson, it may well be appropriate that orders relating to the filming of the Baiada Wingfield worksite be issued. In light of the Baiada statements and the NUW concession that Mr Snelson filmed the Baiada Wingfield worksite and that this video was published on its website, the requested orders may have a valid basis. However, I consider the order for the production of documents relative to the filming of the worksite is, at this stage, premature and should be reviewed in the light of the evidence which may be given by the NUW witnesses. If, for example, this evidence establishes the source of the film provided to the ABC, there may be no need for orders of the nature sought.
[28] The orders for the production of documents relative to complaints made to the NUW by Baiada employees upon which information the NUW may have relied to make public statements and issue written information including flyers, media releases and letters to other corporations which deal with Baiada clearly go to the allegations that the NUW acted improperly. To some extent, these orders seek access to material which post dates the Baiada request which I regard as setting the relevant date at which at least an initial assessment of the request must be based. In so far as the orders seek material after that date I do not consider they are appropriate at this time.
[29] With respect to orders sought for documents which form the foundation for the NUW flyers I note that these flyers make assertions that extend to very different issues. At this stage, I am not persuaded that documents which refer to other Baiada sites should be produced. While the information already provided to me appears to confirm some potential for Baiada, Wingfield employees to be concerned about employment arrangements relative to superannuation, there is nothing to identify any basis upon which the NUW claims to third party corporations which predate the Baiada request can be sustained. Whilst information which addresses all of these matters may be included in the statements and material to be provided by the NUW, I am satisfied that a more limited order is appropriate at this time. This order will require the production of documents by the NUW to substantiate the allegations in the NUW flyers prior to 9 November and the allegations contained in the NUW media release of 8 October 2010. I have noted that the NUW 8 October 2010 Media Release pre-dates the Baiada request but am not satisfied as to any link between the Lilydale operation and the Baiada Wingfield site.
[30] The orders sought with respect to the basis for the personally addressed letters which the NUW sent to Baiada employees, Ms Burton and Ms Swatts go to the extent to which the NUW had a reasonable basis upon which to found these assertions. I am satisfied that these orders are sufficiently detailed and are directly relevant to the allegations made by Baiada. A basis for these letters may reside in the concession by Baiada that it did not properly pay certain employees superannuation entitlements. Alternatively, a different foundation for these letters may be made out by the provision of the documents requested.
[31] The orders sought with respect to information published on the NUW website may become appropriate depending on the evidence provided by the NUW. However, at this time I am not persuaded that this is the case.
[32] The orders sought for material relied upon in the proceedings before Hampton C may also become appropriate but, at the present time I am not disposed toward granting this request. In this regard I am particularly concerned at the potential to undermine the scheme of the FW Act with respect to those earlier proceedings.
[33] I will grant the order requiring the provision of documents relating to the meeting between Ms Takla of Baiada and Mr Donnelly and Mr Roberts of the NUW. It appears to me that the statement of Ms Takla asserts, with sufficient particularity, a potential course of action on the part of the NUW which, if established, would be inconsistent with the provisions of the FW Act.
[34] I am not prepared to issue the order sought with respect to the actions of the NUW in Perth. I am unable to properly relate these actions to the Baiada request.
[35] I am not satisfied, on the material before me, that there is sufficient utility in the request for documents relative to the meetings the NUW held outside of the Baiada Wingfield site
[36] The orders sought relative to matters referred to both the Fair Work Ombudsman and SafeWork SA, are, in my opinion, more properly the domain of those authorities and are, accordingly, refused.
[37] Baiada may renew its other requests in their current, or a varied form subsequent to consideration of the NUW evidence or in the course of the hearing.
[38] In terms of the information to be provided to me, I intend to pay particular attention to ensuring that the operation of the FW Act pursuant to s.483AA is preserved. In this respect I am aware of the position adopted by Hampton C relative to requests for access to the transcript of the earlier proceedings before him. Additionally, I am concerned to ensure that any information provided to me which I may ultimately release does not compromise the unfair dismissal and/or general protection's actions which have been initiated by the NUW on behalf of its member and former Baiada employee.
[39] With respect to the orders sought to apply to the ABC, I consider that, for the same reasons I have already detailed, the granting of this request, is, at this stage anyway, premature. In the event that the evidence does not disclose the source of the ABC film footage or information, Baiada may wish to review its request.
[40] Whilst I have granted substantially more limited orders than those sought, to the extent that the NUW material addresses these orders by providing material directly to Baiada, compliance with those components of the order will not be required. I have specified that this material is to be provided to FWA by 31 January 2011. If this represents a practical difficulty for the NUW, a later date may be requested. I will endeavour to consider any information provided to me as soon as possible in order to determine what information will be provided by FWA to Baiada. Both parties are at liberty to request that the February 2011 hearing be deferred.
SENIOR DEPUTY PRESIDENT
Appearances:
P Rozen counsel for the National Union of Workers.
T Stanley counsel for BPL Adelaide Pty Limited.
Hearing details:
2010.
Adelaide:
December 22 and 23.
1 NUW Submissions of 21 December 2010 para 19
2 (2001) 109 IR 482
3 PR962479 para [12]
4 Print H2892
5 PR962479 paras {13] and [14]
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