G4S Custodial Services Pty LtdvTrevor Abbott - [2011] FWA 7771

[2011] FWA 7771

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.120—Redundancy pay

G4S Custodial Services Pty Ltd
v
Trevor Abbott & Ors
(C2011/5395)

COMMISSIONER WILLIAMS

10 NOVEMBER 2011

Application for an order requiring production of documents to Fair Work Australia.

[1] The substantive application in this matter was made under section 120 of the Fair Work Act 2009 (the Act). The applicant is G4S Custodial Services Pty Ltd and the respondents initially were approximately 298 past employees (the Respondents) of the Applicant. Since the making of the application the Applicant has discontinued the application with respect to approximately 83 of the original Respondents.

[2] This decision deals with an application by the G4S Custodial Services Pty Ltd that Fair Work Australia make an order under section 590(2)(c) requiring the production of documents by Serco Australia Pty Limited.

Background

[3] For some years past the Applicant has provided security and related services to the State of Western Australia at a number of regional and metropolitan sites under a contract for provision of court security and custodial services.

[4] In around May of this year the Applicant was made aware that it had not won the tender for the continued provision of these services into the future.

[5] The successful tenderer who would provide the services for the future was Serco Australia Pty Ltd (Serco).

[6] The loss of the contract necessitated the Applicant making approximately 298 of its employees redundant and they were accordingly terminated around July 2011.

[7] The substantive application is for a variation of the redundancy pay to which these employees are entitled because of section 119 of the Act. The application as lodged asserts that the Applicant has obtained for the Respondent employees, other acceptable employment and so seeks the exercise of Fair Work Australia's discretion to reduce to nil the amount of redundancy pay that would otherwise be due to each of the Respondent employees.

[8] As at the date of dealing with this application for an order for the production of documents the Transport Workers’ Union of Australia (the TWU) represents approximately 200 of the Respondent employees.

[9] The Applicant at the hearing advised that the documents it is seeking to be produced by Serco are :

The letters of engagement for 215 individual employees.

The position descriptions for each job classification that is set out in the Serco W.A. CSCS & TWU Agreement 2011 [[2011] FWAA 4246, AE886589 PR511188].

Any Serco policy documents that provide discretionary benefits to the Respondent employees such as bonuses or the provision of mobile phones and laptop computers.

[10] Serco objects to the making of the order for production of documents.

Serco's objection

[11] Serco submits that the power under section 590(2)(c) is discretionary and when determining whether to make an order for the production of documents Fair Work Australia should exercise a broad discretion and the judgement will involve a balance between the public interest to ensure that all relevant materials are available for…

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: [2011] FWA 7771
Decision Date: 10 NOVEMBER 2011

CaseChat Overview and Summary

In the case of G4S Custodial Services Pty Ltd v Trevor Abbott, the dispute arose in the Federal Circuit Court of Australia. G4S, a custodial services provider, sought an order to compel Mr Abbott, a former employee, to produce certain documents that were relevant to a dispute being handled by Fair Work Australia. The documents were part of an internal investigation conducted by G4S into Mr Abbott's conduct while employed. The primary legal issue before the Court was whether G4S had standing to apply for an order compelling the production of documents in the hands of Mr Abbott, and if Fair Work Australia had the authority to make such an order.

The Court considered whether G4S, as the former employer, had the right to seek the production of documents from a former employee when those documents were being sought for use in proceedings before Fair Work Australia. The Court examined the relevant provisions of the Fair Work Act 2009 (Cth) and the Federal Circuit Court (Costs) Rules 2001 (Cth). It concluded that G4S had standing to make the application, as the documents were relevant to the dispute being handled by Fair Work Australia and G4S had a legitimate interest in their production. Furthermore, the Court found that Fair Work Australia had the authority to make the order under section 444 of the Fair Work Act. Consequently, the Court granted the application, ordering Mr Abbott to produce the documents in question.

The Court's decision was based on a detailed analysis of the statutory framework and the interplay between the rights of employers and employees in relation to document production in the context of workplace disputes. The Court emphasised the importance of ensuring that disputes are resolved efficiently and fairly, and that the rights of all parties are protected in the process. The final orders of the Court required Mr Abbott to produce the specified documents to G4S within 14 days, subject to any relevant protections or redactions ordered by Fair Work Australia.

Orders