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 Fair Work Australia and the detriment to Serco of being required to comply with the order.

[12] Serco argues it is not appropriate to seek documents from a third party such as Serco unless and until the Applicant has sought the documents from the Respondents and only then if the Respondents are unable to produce the documents.

[13] Serco submits the Applicant has not sought production of the documents from the Respondents and instead as a matter of putting its own convenience first has sought the documents from a third party.

[14] Serco argues the power to order a third party to produce documents must be exercised with care and generally only in cases where it is obvious that the third party has the only copies of the particular documents. 1

[15] Serco submits that this principle is particularly relevant in a no cost jurisdiction where Serco as a third party will not be able to recover its costs of identifying and producing the documents if it is required to.

Consideration

[16] The parties referred the Tribunal to a number of decisions dealing with production of document matters. It is sufficient to say that I have had regard for these including the decision of the Full Bench of Fair Work Australia reported at [2011] FWAFB 3363 and the decision of Commissioner Thatcher reported at [2009] AIRC 926.

[17] Considering the general principles I am satisfied that the documents sought by the Applicant are for a legitimate forensic purpose and do not amount to a fishing expedition. I also accept that the documents sought by the Applicant have been sufficiently particularised and are materially relevant to the substantive application. Further whilst acknowledging that the provision of the individual letters of engagement will require significant effort by Serco if they are required to identify and collate these I do not accept that the order sought is oppressive.

[18] The critical issue in this matter is the fact that Serco is a third party not involved in this application.

[19] The principle explained by O’Loughlin J in Williams Aviation v Santos (1985) 40 SASR 272 at 276 set out below is in my view applicable to this matter.

“Whilst the Rules of Court confer power to order discovery of documents from a stranger to the proceedings, I believe that this power must be exercised with care and, generally, only in cases where it is obvious that the stranger has the only copies of the particular documents. Expressed in another manner, I believe that a party to litigation should exhaust its rights with respect to discovery against the other party before involving a stranger in the matter. However, I must concede that such a proposition cannot be regarded as a fixed or arbitrary rule; there will always be exceptions. For example, a party to the litigation may only have a copy of a document and it may be the stranger who has the original; in the particular circumstances of a case, it may be essential that the original copy be discovered. But in the first instance, I believe that the general and specific powers of discovery with respect to a litigant should be totally exhausted before a stranger is enmeshed in the proceedings.”

[20] The Applicant has apparently not sought the documents they now seek from Serco from the Respondents. Approaching the Respondents regarding these documents is not as complex or as daunting as it might appear at first glance given that the TWU represents the vast bulk of the individual employees.

[21] Whilst the approach of the Applicant may be seen by it as the most efficient and simple way to obtain the documents it seeks in support of its case this approach does involve shifting the effort and cost from itself onto a third party, Serco.

[22] The parties to a proceeding before the Tribunal, and in particular the Applicant, should naturally bear responsibility for the cost and effort in preparing their respective cases and the shifting of part of this burden to strangers is not in my view, something the Tribunal should facilitate unnecessarily.

[23] In this matter there is no evidence that an order for the production of documents to be made against a third party is necessary at this stage. Consequently I decline to make the order sought by the Applicant against Serco.

[24] The Applicant has a number of other courses of action available to it. I would recommend that the Applicant discuss the issue with the TWU and see if through those discussions the provision of these documents can be achieved. The Applicant and the TWU have developed a set of agreed facts that have been provided to the Tribunal and it may be that some of the matters the Applicant seeks to demonstrate via the documents sought can be dealt with by some limited expansion of those agreed facts. Potentially the parties may be able to agree that particular documents are representative of the documents which are applicable to particular groups or classes of the Respondent employees. Of course if this does not address the needs of the Applicant then potentially orders to produce against the Respondents could be sought by the Applicant.

[25] Ultimately the Applicant is not prevented from making a fresh application in the future for the production of documents to be provided by Serco. A different decision may be made if the factual background regarding other attempts to obtain these documents has changed.

COMMISSIONER

 1   Williams Aviation v Santos (1985) 40 SASR 272 at 276

Printed by authority of the Commonwealth Government Printer

<Price code A, PR516611 >

See also Viscariello v Macks (No 6) [2010] SASC 303 at [34] and [48] to [50] per Lunn J;

Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 at 189 per Burchett J.