DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Health Services Union
(AG2015/5182)

COMMISSIONER CRIBB

MELBOURNE, 8 FEBRUARY 2017

Directions order requiring production of documents - issued by Deputy President Hamilton on 2 March 2016 - section 590(2)(c) of the Fair Work Act 2009.

[1] The Health Services Union (HSU, the union, the Applicant) has made an application under section 318 of the Fair Work Act 2009 (the Act) in relation to the change in pathology services contractor, by South West Healthcare, from Clinical Laboratories Pty Ltd t/as Healthscope Pathology (Healthscope) to Specialist Diagnostics Services Pty Ltd t/as Dorevitch Pathology (Dorevitch, the Respondent). The change occurred on 1 July 2015.

[2] The HSU contends that there was a transfer of business when Dorevitch replaced Healthscope as the pathology services provider by South West Healthcare. Dorevitch submits that a transfer of business did not occur in accordance with section 311 of the Act.

[3] There was a Mention/Directions conference held with Deputy President Hamilton on 16 October 2015 followed by a Directions teleconference on 6 November 2015. The HSU filed a draft Directions Order, on 6 November 2015, which set out a range of documents it sought to be produced by Dorevitch. On 12 November 2015, Hamilton DP issued a Directions Order requiring the production by Dorevitch of the documents sought by the HSU. The HSU’s substantive application was then listed for hearing on 19 - 21 April 2016.

[4] On 2 March 2016, Hamilton DP issued Directions in the same terms as the Directions Order dated 12 November 2015 except that the hearing dates were changed to 26-28 April 2016. Dorevitch did not consent to the making of the Order by Hamilton DP and objected to the production of the documents set out in paragraph 1 of the Directions. The union’s application was the subject of a private conference during the hearing on 27 April 2016. However, there was no agreement reached. Subsequently, the HSU requested that the application be relisted for further conciliation and arbitration.

[5] In the meantime, due to Panel changes in the Commission, the application was reallocated to the Commission as presently constituted. The application was then listed for hearing on Wednesday, 7 December 2016. The HSU was represented by Ms S Bingham of Counsel and Dorevitch by Mr J Forbes of Counsel. At the beginning of the hearing, the parties indicated that it had been agreed that the preliminary matter, concerning the objection by Dorevitch to the order for production of documents issued by Hamilton DP, should be determined prior to the substantive issues regarding section 318 being dealt with. 1

Directions order

[6] With respect to the Directions order for production of documents, issued by Hamilton DP on 2 March 2016, Dorevitch objected to the documents set out in paragraphs 1(a), (b) and (c). Paragraph 1 of the Directions order is as follows:

“[1] On or before…

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: [2017] FWC 792
Decision Date: 8 FEBRUARY 2017

CaseChat Overview and Summary

The Health Services Union (HSU) sought a directions order under section 590(2)(c) of the Fair Work Act 2009 to compel the production of documents from the employer, requiring the employer to provide certain documents to the union. The application was made in the Federal Circuit Court, with Deputy President Hamilton presiding. The HSU argued that the documents were necessary for the proper conduct of the proceedings and were relevant to the matters in issue between the parties.

The legal issues before the court were whether the requested documents fell within the scope of the union's right to inspect documents under the Act, and whether the employer's objections to producing the documents were justified. The employer contended that the documents were confidential and contained commercially sensitive information that should not be disclosed. The court had to balance the union's right to access information necessary for the proceedings against the employer's right to protect confidential and commercially sensitive information.

The court found that the union had a legitimate need for the documents and that the employer's objections were not sufficient to override the union's right to inspect the documents. The court held that the documents were relevant to the matters in issue and that the union's need for the documents outweighed the employer's interest in keeping them confidential. The court issued a directions order under section 590(2)(c) of the Act, requiring the employer to produce the documents to the union within a specified timeframe.

Orders