Independent Education Union of Australia v Reddam House Limited and Crawford Education Pty. Limited T/A Reddam Els
[2015] FWC 8541
•14 DECEMBER 2015
| [2015] FWC 8541 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Independent Education Union of Australia
v
Reddam House Limited & Crawford Education Pty. Limited T/A Reddam ELS
(C2015/7387)
COMMISSIONER MCKENNA | SYDNEY, 14 DECEMBER 2015 |
Application to deal with a dispute – reasons for granting orders for production and inspection of documents
[1] On 4 December 2015, over the objection of the respondents to this application, I concluded there was relevance to some of the documents sought in schedules to two notices to produce sought by the applicant. The respondents sought written reasons.
[2] It is apposite to first outline some background to contextualise matters.
[3] On 19 November 2015, the Independent Education Union of Australia (“the IEU”) lodged an application to deal with a dispute, made pursuant to s.739 of the Fair Work Act 2009 (“the Act”). The application identified two respondents, which were named in in the Form F10 initiating process as Reddam House Pty Ltd T/A Reddam House and Crawford Education Pty Ltd T/A Reddam ELS. The names of the respondents were subsequently amended in the proceedings, pursuant to s.586 of the Act, to Reddam House Limited and Crawford Education Pty. Limited T/A Reddam ELS (collectively “the respondents”). The acronym “ELS” refers to what was interchangeably used as referring to Reddam’s “early learning school”, “early learning centre”, “early learning service” and the like.
[4] The IEU’s initiating process set out matters including the following:
“2. About the dispute
What is the dispute about?
…
1. Reddam House (“Reddam”) is a K-12 school spread over a number of campuses located in Sydney NSW.
2. The Woollahra Campus houses Reddam’s early Learning service, Primary School and Middle School. Reddam has recently expanded its early learning service to a new campus at St Leonards.
Suspected Transfer of Instruments Contravention
1. Recently several staff at the Early Learning School have been provided with new contracts of employment. These contracts appear to be part of a rebranding of the Early Learning School as “Reddam ELS”.
2 The new contracts have brought to the attention of the Union the existence of two companies that ostensibly operate the services of Reddam. Reddam House Pty Ltd, which appears to operate and employs teachers and support staff in the Primary, Middle and High School; and Crawford Education Pty Ltd, which trades as Reddam House ELS, and appears to operate and employ teachers and support staff in the Early Learning Centre.
3. The new contracts issued to Early Learning Staff stipulate that the employer is Crawford Education Pty Ltd trading as Reddam ELS, and that the Modern Award applies to the staff members’ employment. The Educational Services (Teachers) Award 2010 and the Children’s Services Award 2010 are fair work instruments which cover members working at Reddam ELS.
4. However, it was the genuine understanding of the Union that when bargaining with Reddam House in 2011 for the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014 and the Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014 (“The Agreements”) that they would cover members and staff in the Early Learning Service. The Union was not previously been notified of the two corporate entities. The Agreements provide enterprise specific detail for staff employed in Early Learning Centers [sic], see Attachment B of the Teachers’ Agreement. The Agreements list “Reddam House” as the employer without further clarification or reference to company names or an ABN or ACN.
5. Upon raising these issues with Reddam ELS (“Attachment 1”), the Union was invited to meet with Justin Dethridge and Geraldine Campbell, the business manager and finance manager respectively, of Reddam House. Mr Dethridge outlined the position of the school. A copy of the letter the Union sent confirming the position of the school on these issues is attached and marked “Attachment 2”. No response has been received from Reddam ELS to date.
6. This is at odds with the recollection of several members that there has been a transfer of business in the past. Similarly, members have recollections of voting for the Agreement.
7. This transfer will have implications for what industrial instrument applies to members and non-members. The rates of pay, accrual of long service leave, notice and other the conditions of employment.
Suspected Misleading Representations Contravention
8. There is confusion amongst staff at Reddam ELS as to who their employer is. Many believe that Reddam House Pty Ltd is their employer, and that they are covered by the agreement that covers their colleagues working at the school at Reddam House Pty Ltd.
9. It has previously been held out to many of the staff at the Early Learning School that Reddam House Pty Ltd employed them. This includes in letters of appointment and contracts of employment, please find attached two examples of such a letter marked “Attachment 3.”
10. It has been held out to several staff that they were employed under the terms and conditions of either the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014 or the Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014 (“The Agreements”).
11. The Union is concerned that Reddam ELS may have inadvertently misled staff as to their workplace rights. Specifically whether Reddam House Pty Ltd, or Crawford Education employed them. Moreover, whether the Agreements or the modern award covered them.
12. Many staff are currently being required to sign the newly issued contracts of employment. The Union holds concerns that this is to cement Reddam’s new position that the Early learning School is not covered by the Agreements.
Suspected failure to provide payslips
13. The Union has been told that a number of members have only in the course of the last year begun to receive pay slips. This is despite having worked for Reddam for a number of years.
14. Should Reddam ELS maintain pay slips in accordance with the Act they have the capacity to reveal any transfer of business that occurred, and indicate when such a transfer may have occurred.
Suspected contraventions of the Awards/Agreements
15. The Union has been told that a number of members are required as a term of their employment to work in excess of 38 hours. Those members have not received overtime or penalties in accordance with the award.
16. The Union suspects that Reddam ELS have not issued letters of appointment in accordance with the Awards or Agreements and that a copy of the Awards or Agreements are not displayed in the workplace as required by both industrial instruments.
17. Staff are currently being required to sign the newly issued contracts of employment. The Union holds concerns that this is to cement Reddam’s position that the Early Learning School is not covered by the Agreements.
18. Two staff members have now been dismissed from Reddam ELS after they refused to sign the new contract. Several members have indicated to the Union that they are unwilling to allow themselves to be identified as union members to Reddam ELS for fear of adverse action.”
[5] It must immediately be commented that these are matters only for which the IEU alleged in the initiating process. In any event, the IEU set out the relief sought in the following terms:
“3. Relief sought
3.1 What relief are you seeking by making this application to the Commission?
…
A) That the Commission recommends that:
1. The Employer provides the Union with information and documentation relating to letters of appointment and pay slips to confirm which entity employs and has employed staff of the early learning services.
2. The parties to have discussions to identify whether the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014 and the Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014 apply or has applied to employees of the early learning services, and whether such instrument continues to apply to any employees.
3. The parties have discussions as to which industrial instrument currently applies to the employment of staff of the early learning services, and that employer complies with such instrument.
B) If the parties cannot resolve all issues in dispute following conciliation and discussion, and the respondent submits that a modern award applies, that the following course be adopted:
1. The issues in dispute be identified by each party.
2. The Commission arbitrates on the issues.”
[6] In response to Question 1.2 in the initiating process as to “What type of industrial instrument (e.g. an award or agreement) or other written agreement covers the employment relationship and contains the dispute resolution procedure relevant to this application?”, the IEU answered “This issue is unclear”, but otherwise identified relevant instruments as including:
- the Educational Services (Teachers) Award 2010;
- the Educational Services (Schools) General Staff Award 2010;
- the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014; and
- the Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014.
[7] The initiating process seemed otherwise in response to Question 1.4 also to include the Children’s Services Award 2010 as a potentially relevant industrial instrument, given references to alleged breaches of that award.
[8] I read in the dispute notification, prior to the initial listing, that: “The Agreements list ‘Reddam House’ as the employer without further clarification or reference to company names or an ABN or ACN.”
[9] The Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014 ([2012] FWAA 1043) and the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014 ([2012] FWAA 1047) (collectively “Reddam Agreements”) were approved on 3 February 2012 (and have now passed their nominal expiry dates). The decisions note that the IEU had given notice that it wanted the agreements to cover it. I instructed my Associate to retrieve copies of documents relevant to the applications for the approval of the each of the Reddam Agreements, namely:
- the Forms F16 (Application for Approval of Enterprise Agreement);
- the Forms F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement); and
- the Forms F18 (Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement).
[10] The Forms F16 each named the applicant employer as “Reddam House”. The Forms F16 elsewhere also specified an ABN, namely 900948552801. The Forms F16 were signed by a Mr Graeme Crawford in the capacity/position of Managing Director.
[11] In each of the Forms F17, Mr Crawford declared that the name of the employer or employers to be covered by the Reddam Agreements was “Reddam House Limited”. In relation to Mr Crawford’s statutory declaration concerning the application for the approval of the Reddam (Support and Operational Staff) Agreement he further declared as follows:
“1.5 What is the kind of work that is to be done by employees under the agreement?
Support & operational work in the independent education sector NSW. Work under the agreement includes: School assistant/Teacher’s Aide, Clerical/Administration, Maintenance, Grounds and Green Keeping, Canteen and Uniform Shop and Bus Drivers, General Operational Staff (cleaning, caretaking, housekeeping), Child Care, Preschool, OOSH Centre, Wellbeing services (Counselling, Youth Work, Psychologist).” (Bold in original)
[12] In the Forms F18 lodged in relation to the applications for the approval of the Reddam Agreements, Carol Matthews - Assistant Secretary, Independent Education Union of Australia NSW/ACT Branch – declared that the IEU supported the approval of each of the Reddam Agreements. Ms Matthews further declared as to each of Mr Crawford’s statutory declarations that in so far as the matters contained in them were within her knowledge she agreed with his statutory declarations.
[13] A search on the Australian Securities and Investments Commission (“ASIC”) website concerning the word “Reddam” showed names, or variants of names, which included, but were not limited to:
- Reddam House Limited (ACN 094 852 801 and ABN 90 094 852 801)
- Reddam House Pty. Limited (ACN 093 513 798)
- Reddam Holdings Pty Limited (ACN 163 627 567)
- Reddam House ELS (NSW BN98312659)
- Reddam House Holdings Pty Ltd (ACN 093 513 798)
[14] As best as could be ascertained from basic information on the ASIC website, it appeared:
- Reddam House Limited has been registered with the Australian Charities and Not-for profits Commission (“ACNC”) as a charity since 3 December 2012 and is endorsed to access the following tax concessions: GST Concession; FBT Rebate and Income Tax Exemption. Reddam House Limited operates the following funds: the Reddam House Limited Building Fund and the Reddam House Scholarship Fund.
[15] While the information of the documents before the Commission as to the applications for the approvals of the Reddam Agreements may have been of potential relevance in assisting the parties to a potential resolution, the information on the ASIC website, on the other hand, did not correlate with the information in the IEU’s initiating process as to company names and the like. The first conference - 23 November 2015 [16] At the first conference concerning the dispute, which was listed on 23 November 2015, Ms Matthews appeared on behalf of the IEU, together with Mr R Seals also of that union. The respondents were represented by Mr C Parkin of counsel, and with him his instructing solicitor, Mr A Crockett of Whittens & McKeough. Mr J Dethridge, a non-executive director of the first respondent, was also at the bar table. [17] Mr Parkin flagged that there were some jurisdictional objections to the application. Having addressed on the question of permission to appear, and having granted permission to appear, permission was granted. [18] I indicated that I had read the application and, as I understood it, an issue had arisen about which instrument covers or instruments cover employees who work at the entity known collectively as Reddam House and whether, at some point, there has been some change in the employing entity. Ms Matthews submitted it was her understanding that Mr Seals had a meeting, as referred to in the initiating process, and the IEU then wrote to Mr Pitcairn, the principal of Reddam House and Ms Goodlace, the principal of the early learning service. Ms Matthews tendered extracts from the Reddam House website, including information about the location of Reddam House campuses (marked as MFI 1), and drew attention to certain matters in that documentation. [19] Ms Matthews also elaborated on some matters in the initiating process, submitting that until the previous few weeks, employees at the early learning services had understood their employer was Reddam House. Ms Matthews outlined some reasons for the employees’ understanding in this regard and submitted it was then only very recently that the situation changed. Ms Matthews submitted two employees had been dismissed for refusing to sign new letters of appointment, the terms of which indicated the modern award applied to their employment. Ms Matthews described this as “alarming”, and among other matters that, although not sought in the initiating process, the IEU was seeking that no further steps be taken whilst the proceedings were on foot to force employees to accept letters of appointment which contain a new employer and, in particular, that no one be dismissed for failing to sign such a letter. [20] Following the completion of Ms Matthews’ initial submissions, I sought clarification from Mr Parkin as to the correct names of the respondents. Mr Parkin submitted the correct name of the first respondent was Reddam House Limited, which was described as being the entity that operates not the early learning centre the subject of the dispute, but the school itself substantively. [21] I amended the name of the first respondent to “Reddam House Limited”. I also received confirmation that the first respondent was the company which is the registered charity in the list set out earlier. I noted that the second respondent was named as Crawford Education Pty. Limited T/A Reddam ELS, and Mr Parkin confirmed that Crawford Education Pty. Limited was correct (and later confirmed that the trading name status was not a formal status). [22] I then stated I may be able to assist the parties. My Associate provided copies of the Forms F16, Forms F17 and Forms F18 to the parties concerning the applications for the approval of the Reddam Agreements. As to those documents, I drew attention to the ABN number identified in the Forms F16. Having received confirmation that the correct name of the first respondent was Reddam House Limited rather than Reddam House Pty Ltd, I noted there appeared to be a minor typographical error of an additional “5” in the ABN number in the Forms F16 for the now-amended name of Reddam House Limited. [23] I drew the parties’ attention to matters to which Mr Crawford had declared in relation to the application for the approval of the Reddam Support and Operational Agreement, namely: “1.5 What is the kind of work that is to be done by employees under the agreement? Support & operational work in the independent education sector NSW. Work under the agreement includes: School assistant/Teacher’s Aide, Clerical/Administration, Maintenance, Grounds and Green Keeping, Canteen and Uniform Shop and Bus Drivers, General Operational Staff (cleaning, caretaking, housekeeping), Child Care, Preschool, OOSH Centre, Wellbeing services (Counselling, Youth Work, Psychologist).” (Bold in original) [24] As to Mr Crawford’s response in his statutory declaration, and having confirmed the parties had with them copies of the Reddam Agreements, I took the parties to clause 4.1 (Scope and coverage) of the Reddam Support and Operational Agreement. That clause reads: “4. Scope and Coverage 4.1 Parties Bound Subject to clause 4.2, this Agreement shall cover: (a) Reddam House (the Employer) (b) Employees as defined in clause 3 (c) employed at Reddam House, including at any preschool or any learning centre attached to or operated by the school in respect of all work done for the Employer.” [25] I took the parties to the definition of “employee” in the Reddam Support and Operational Agreement, while noting that the definition is conditioned by clause 4.1(b) as it (potentially relevantly) described an employee as “including at any preschool or early learning centre attached to or operated by the school”. [26] I also took the parties to the Reddam House Teachers Agreement. Clause 4.1 of that agreement reads as follows: “4. Scope and Coverage Subject to subclause 4.2, this Agreement covers: (a) Reddam House (the employer); and (b) Teachers as defined in clause 3 (u) employed by the school including any preschool or early learning centre attached to or operated by the school, in respect of all work done for the employerl [sic].” [27] I noted Ms Matthews had declared in the Forms F18 that she agreed that in so far as she was aware of the matters set out in Mr Crawford’s Forms F18 in support of the approval of the Reddam Agreements that she agreed with the matters there set out. [28] The Forms F16, F17 and F18 concerning the applications for the approval of the Reddam Agreements I provided to the parties were obtained from the Commission’s internal computerised records (despite my erroneous comment in the proceedings that those documents were readily accessible on the Commission’s “website”). [29] Mr Parkin reiterated his clients had jurisdictional objections that needed to be raised at some point, while also allowing otherwise for some discussions. In this regard, I noted that dispute resolution procedures and powers would differ, depending on whether the modern awards’ provisions or the Reddam Agreements’ provisions applied. I also noted, without using the word in a pejorative sense, that there was a discrepancy in that the IEU referred in the initiating process (and in an annexure) to an entity apparently formerly known as Reddam House Pty Ltd. Mr Parkin advised that his instructions were that that that entity is now referred to as Nettleton Consulting (Australia) Pty Ltd; and had one employee, with the company being an independent organisation involved in the provision of uniforms to the school etc, with the result it would not have any significance for the present dispute. There was further discussion in the proceeding about different Reddam-related company names, company name changes and related matters. [30] I inquired, in circumstances of the nature of the dispute and where the early learning school had been in operation for a number of years, whether anyone had examined who the accredited service provider was, what the accredited service provider number was, and what date accreditation was provided by the Australian Children’s Education & Care Quality Authority (“ACECQA”) or its predecessor. Ms Matthews submitted that the IEU had looked at that matter, and that in 2014 the name of the service provider changed to Crawford Education. Mr Parkin submitted it had not changed; that was when it was registered. [31] I further inquired whether any other objective-type criteria had been examined in relation to ABNs that would have been provided to arm’s length providers; and also referred to the IEU’s allegation that payslips had not been provided and noted there are Act-specified requirements as to the content of payslips, including perhaps the type of information which is now the subject to dispute. [32] Mr Parkins’ understanding was that the Crawford Education Pty. Limited ABN appears on the payslips (and payslips had been provided to employees consistently), notwithstanding what was set out in the initiating process. Ms Matthews’ understanding similarly was that payslips are now provided, but she was not sure that historically this had been the case. Mr Parkin further submitted that the previous position was that the payslips were accessible on a type of self-access basis; but more recently payslips had begun being emailed directly to employees. I noted that one of the courses the IEU was proposing was an inspection of certain employment records, being records the respondents would have been obligated to retain for the statute-specified period. [33] Ms Matthews added that one IEU member, who had been dismissed, had given the impression that the school was of the view that the relevant Reddam Agreement had passed its nominal expiry date and therefore no longer applied to her employment. [34] Mr Parkin submitted that the respondent had the difficulty that much of the material within the application concerned matters which had not previously been notified to them. The two attachments to the application essentially went to the coverage point; but a number of other allegations had not previously been raised by the IEU with the respondents. Irrespective of whether it was the Reddam Agreements or the modern awards, the basis of the dispute settlement provisions is that there needs to have been a discussion about this first. Mr Parkin submitted the respondents had come to the Commission as they been asked to attend, and wanted to assist in whatever way they can, but it was difficult to deal with these things in this way. It is a matter of jurisdiction and it was problematic to be dealing with matters in this way. [35] Following on from Mr Parkin’s submissions, I encouraged the parties to hold discussions now they had the Forms F16, F17 and F18 as to the identification of an ABN, as well as the Reddam Agreements before them. I stated that I hoped that would be a fruitful start for the parties’ discussions. Before adjourning the proceedings to allow the parties to open their own discussions, I sought, and was given, further clarification as to whether the first respondent, Reddam House Limited (i.e. the charity), actually had a trading name. Mr Parkins submitted Reddam House Limited operates as Reddam House, but the name Reddam House is not the trading name as such. Mr Dethridge was able to provide some further clarification, given he is one of the directors of Reddam House Limited (together with Rabbi Kastel). He advised that Reddam House Limited is the company that operates the K-12 school, Reddam House, and that entity operates as a not-for-profit whereas the pre-school is operated by Crawford Education Pty. Limited, and that operates as a for-profit. [36] On resumption of proceedings following the parties’ own discussions, the parties reported not much progress had been made. Mr Parkin submitted that the respondents were dealing with a number of issues which had been raised for a first time, and that really went to the heart of the jurisdictional objection. While indicating that the matter was listed only for conference and that I would not, thereby, be determining any jurisdictional objection, I asked Mr Parkin, for my own information, to outline the nature of the jurisdictional objections - which he did and, and further assisted my understanding of matters by answering some questions arising. [37] Ms Matthews submitted that the respondents’ position had not relevantly changed as to the provision of information and documentation relating to letters of appointment and pay slips to confirm which entity employs, and has employed, ELS staff. Ms Matthews noted the IEU could exercise certain rights under the Act to access member records, but the union did not find that a very helpful approach in terms of resolving what are complex matters. Ms Matthews referred to penalties concerning unions’ rights of entry concerning non-compliance; she submitted the IEU was surprised that the respondents were seeking that the union “go down what is quite a heavy-handed way to get that information”. [38] Among other matters, I explored whether documents might be exchanged on a representative-to-representative basis by agreement. Mr Parkin submitted he would take further instructions from the respondents and engage in ongoing discussions with the IEU about those matters. I encouraged the parties to keep channels of communication open, because it would assist in bringing matters to a resolution if that type of clarity was brought about through objective records that employers are bound to keep and being records which, in any event, are obtainable by other means by unions, the Fair Work Ombudsman, or whatever other agency might be involved. Mr Parkin noted that employees would themselves be able to obtain such records on request to the respondents. There was further discussion around such matters in the proceedings, particularly in relation to individual employees’ concerns about being identified, and also between the parties themselves. [39] Mr Parkin submitted the respondents were prepared to undertake to respond to the IEU on certain matters, to take some further advice and provide some instructions on it. Some further discussion ensued about scheduling-related matters. There was also discussion about extant contracts being put to employees and a range of other matters. [40] The matter was put-over to Friday 27 November 2015 for a further conference. The second conference – 27 November 2015 [41] At the second conference on 27 November 2015, Ms Matthews continued her appearance for the IEU, together with Ms A McEwan also of that union. The appearances for the respondents were as before. [42] Ms Matthews reported that the IEU had received a response to its request for access to relevant records and that the request had been rejected. Ms Matthews submitted the IEU had made another application to the Commission. I confirmed the application had that same afternoon been allocated to me, being an application made pursuant to s.438AA of the Act (Application for an order to access non-member records). [43] Mr Parkin submitted there was not much further to add, except that the basis on which the respondents rejected the request was a concern about the confidentiality of that information as between the respondents and the employees in question. Mr Parkin further submitted the IEU has statutory rights, and if it wished to exercise those rights that was a matter for the union. Mr Parkin confirmed that the respondents sought to press the jurisdictional objection and to have that objection timetabled for determination. [44] I inquired, in circumstances where the respondents had a concern about confidentiality, whether that concern could be addressed through the redaction of names in documents. Ms Matthews submitted the IEU would have no difficulty with a redaction-type approach. Mr Parkin submitted that given the small number of employees involved there was some concern that there would be identification notwithstanding the removal of those identifying features. [45] I inquired whether, if redaction of names would not be sufficient to assuage concern, it would be open to the parties to (also) discuss undertakings. [46] In circumstances where it was confirmed that Crawford Education Pty. Limited had an ABN, I took the parties to some the provisions of the Fair Work Regulations 2009 in relation to the information required to be kept for seven years concerning employee records: “Part 3-6—Other rights and responsibilities Division 3—Employer obligations in relation to employee records and pay slips 3.32 Records—content For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the employer’s name; and (b) the employee’s name; and (c) whether the employee’s employment is full-time or part-time; and (d) whether the employee’s employment is permanent, temporary or casual; and (e) the date on which the employee’s employment began; and (f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.” [47] I also took the parties to reg.3.46 concerning payslips: “Part 3-6—Other rights and responsibilities Division 3—Employer obligations in relation to employee records and pay slips 3.46 Pay slips—content (1) For paragraph 536(2)(b) of the Act, a pay slip must specify: (a) the employer’s name; and (b) the employee’s name; and (c) the period to which the pay slip relates; and (d) the date on which the payment to which the pay slip relates was made; and (e) the gross amount of the payment; and (f) the net amount of the payment; and (g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and (h) on and after 1 January 2010—the Australian Business Number (if any) of the employer. …” [48] I inquired whether a representative sample of pay slips and pay records be provided on the basis, for example, that if the ABNs were correctly recorded for one or more employees it might tend to suggest it would have been correct for the class of employees concerned. [49] I also inquired whether, having regard to the legal requirements concerning record keeping since 2010, this matter might be easily resolved by the simple identification of the ABN numbers on the pay slips and in pay records, and whether there was any change at any point in relation to those records. [50] I referred to certain definitions within the Reddam Agreements, such as one defining “School” as meaning “a registered non-government school or a pre-school or early learning centre attached to, or operated by, a registered non government school. [51] I inquired whether there might be another approach, such as the provision of documentation, for example, as to which entity held the workers’ compensation policy or policies at different times and paid the premiums in relation to employees. [52] The proceedings adjourned to allow the parties to hold discussions. Upon resumption, Ms Matthews submitted she had not, however, heard anything from the respondents in relation to the types of compromises that might be reached. Mr Parkin submitted the respondents’ position had not changed and sought timetabling concerning the jurisdictional objection; and also sought to be heard on the application under s.483AA of the Act. [53] I then discussed timetabling with the parties for the hearing concerning the jurisdictional objection and related matters, with a view to attempting to narrow the matters for determination. A consent timetabling programme was the subject of directions with a hearing. [54] I took the s.483AA application have been called-on and then put it into abeyance. The matter was stood over with leave to seek a relisting. I confirmed that the respondents would be given notice and an opportunity to be heard should the IEU seek to have the matter relisted. The first notices to produce – 2 December 2015 [55] On 2 December 2015, I signed and issued from chambers two notices to produce sought by the IEU in connection with the then-impending jurisdictional hearing. The first orders to produce were directed to the Principal of Reddam House and the Proper Officer for Crawford Education Pty. Limited, returnable by 10.00am on 7 December 2015. The schedule to each order was in identical terms, reading: “SCHEDULE 1. Copies of all letters of appointment, group tax returns, pay slips, approval of leave, records relating to termination of employment including the name of the person who acted to terminate the employment, and statements of service in respect of employees performing work at the early learning centres now known as Reddam ELS from 1 January 2010 until the present, whether in electronic format or hardcopy. 2. Copies of any advice, memoranda, minutes of meetings, file notes or other document, whether in electronic format or hardcopy, concerning or recording the applicable industrial instrument of employees performing work at the early learning centres now known as Reddam ELS from 1 January 2010 until the present. 3. Copies of any documents, whether in electronic format or hardcopy, or emails relating to the vote of employees on, or the approval by Fair Work Australia of, the Independent Schools (Support and Operational Staff) Reddam House Agreement 2011-2014 and the Independent Schools (Teachers) Reddam House Agreement 2011-2014, including emails sent to staff containing the representational rights notice, information concerning the effect of the proposed agreements, information about the conduct of the votes and who was eligible to vote, documents recording the outcome of the vote and approval of the agreements. 4. Copies of any documents recording the registration or licensing of the early learning centre now known as Reddam ELS with a licensing authority since establishment. 5. Copies of documents recording any contract, lease, or other arrangement for provisions of services as between Reddam House, Reddam ELS, Reddam House Limited or Crawford Education Pty. Limited in the period since 2011. 6. Copies of any document, whether in electronic format or hardcopy, setting put [sic] the staffing and reporting structure of Reddam House, Reddam ELS, Reddam House Limited or Crawford Education Pty. Limited.” [56] On 3 December 2015, the respondents’ solicitors sought an urgent listing so the respondents could apply to have the orders for production set aside or varied. [57] In consequence, the matter was listed for mention and/or hearing at 11.00am on 4 December 2015 in relation to the listing application concerning the notices. The mention and/or hearing concerning the notices to produce – 4 December 2015 [58] At the mention and/or hearing on 4 December 2015 concerning the respondents’ application to set aside or vary the first notices to produce, Mr M Gibian of counsel appeared with permission for the IEU, together with Ms Matthews. Mr Parkin continued his appearance for the respondent, with Mr Crockett. The listing proceeded as a hearing. [59] Mr Parkin submitted it was the respondents’ application that the orders for production be set aside. In that regard, Mr Parkin sought to tender two emails (later marked as Exhibit 1 in the hearing on the notices to produce) which outlined, compendiously described, logistical and other difficulties concerning compliance with the orders to produce; and he referred also to a number of cases. As to the objection to the orders Mr Parkin submitted the first objection was that there is still an objection to the Commission’s jurisdiction on foot. There remains, he submitted, a question about the extent to which the Commission has jurisdiction to make any order in relation to this matter. If it is the view of the Commission that the powers under s.590 of the Act (Powers of the Commission to inform itself) can be exercised when there is a jurisdictional objection on foot, the ordinary principles relating to orders for production would be confined to addressing solely those matters going to the Commission's jurisdiction and addressing the jurisdictional objections which have been raised by the respondents. [60] Mr Parkin submitted that the documents sought would have to be documents that could, if produced, rationally bear upon the determination of those issues. Mr Parkin referred to the respondents’ submission objecting to jurisdiction that had otherwise been filed pursuant to the consent directions concerning the determination of the jurisdictional objection, particularly as those submissions read: “(a) The proceedings are improperly commenced and constituted and are therefore a nullity, because the Applicant (the Union) is not competent to be a party to a dispute that is referred to the Commission under any of the dispute resolution provisions that might be binding on the Respondents; (b) Even if the proceedings were properly constituted, the conditions precedent to a dispute being dealt with by the Commission under any of the dispute resolution provisions that might be binding on the Respondents have not been satisfied, in that there have not been discussions at the workplace level within the meaning of any of those provisions; (c) Even if such communications which have taken place can be regarded as ‘discussions’ for that purpose, many of the matters which are the subject of the Union’s application did not form part of those communications, and are therefore outside the scope of any dispute that could be referred to the Commission; and (d) Many of the matters raised in the Union’s application are not matters which arise under the National Employment Standards (the NES) or any award or enterprise agreement which could be said to apply to the Respondents.” [61] Mr Parkin submitted that none of the matters raised, and no documents sought in the schedule to either order for production, would rationally bear on the determination of any of those issues. For those reasons, there was no basis for the orders for production to be made in these terms given the then status of the proceedings. [62] To the extent the documents the subject of the orders to produce could be said to bear upon any of the issues raised in the purported and substantive dispute, Mr Parkins’ submissions continued, the respondents should not be put to the costs of producing such documents at a point in time when the Commission had not even determined its power to hear that purported dispute or to engage in any sort of dispute resolution in relation to that purported dispute. It was just simply premature and unnecessary at this particular stage. The documents have no apparent relevance to the issues that are being ventilated as part of the jurisdictional objection and the Commission should not go any further than looking at those particular issues at this point in time. In so submitting, Mr Parkin referred to Patrick Cannon v Glenelg Shire Council[2015] FWC 7439 at [15]-[18]. Reliance was also placed on Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2011] FWA 8756 at [13] (“the ANF case”) citing a quote in McIlwain v Ramsey Food Packaging and others [2005] FCA 1233 at [35] particularly paragraphs (d), (e), (h), (k) and (m) addressing questions of oppression, relevance and the need to identify documents with reasonable particularity. [63] I indicated I had initially thought the first notices to produce were a little broad, considering also the timeframe. Against the background of that observation, I suggested there might be some utility in counsel for the respective parties holding discussions about these matters before proceeding any further in the hearing of the application to set aside or vary the notices to produce. [64] Mr Parkin submitted there was one difficulty with that suggestion, and that the respondents’ relevance objection is a fundamental one, and, it was submitted, the respondents ultimately should not be required to produce any documents. [65] I noted that some (if not all) of the documents in the notices to produce were unremarkable types of documents - employment records. Mr Parkin submitted that in the sense they are regarded as unremarkable documents two points could be made. Firstly, these are documents which are sought, at least in part, as the ultimate outcome of this application – and this was a consideration of the type discussed in the ANF case at [44]. In that regard, part of the relief that was being sought by the IEU was identified in the initiating process as follows: “A) That the Commission recommends that: 1. The Employer provides the Union with information and documentation relating to letters of appointment and pay slips to confirm which entity employs and has employed staff of the early learning services.” [66] Mr Parkin submitted, secondly, there is a distinction in the Act concerning documents which may be accessed under right of entry provisions and documents which may be accessed only upon application to the Commission - being documents which pertain to the employment of a person who is not a member of the relevant union. In that regard, it was relevant there was an extant application under s.483AA of the Act which was sitting in abeyance; it would be inappropriate effectively to grant substantive relief which would affect the s.483AA application as well when the parties or the applicant for that application is the union which purported to be a party in this application. [67] I outlined what little I knew to that point about the matters in dispute, at least as IEU put matters:
“The School’s Position Reddam House Pty Ltd operate and employ staff at Reddam House’s primary and middle school and senior campuses. Crawford Education Pty Ltd trades as Reddam ELS, which operates and employs staff at the Early Learning Services operated at Woollahra campus and the St Leonards campus. There have always been two separate entities. Crawford Education Pty Ltd has always operated the early learning service at Woollahra and employed all staff working in the early learning service. This has continued to be the case through the expansion to the St Leonards campus. There has not been a transfer either of business or employment between Reddam House Pty Ltd and Crawford Education Pty Ltd or otherwise.”
[68] Mr Parkin reiterated that ultimately the respondents had an objection fundamentally to relevance on the basis that there is an extant jurisdictional objection; and did not consider that any of these documents sought in the notices to produce are relevant to that objection. [69] I noted that my very jurisdiction to deal with this application will turn on the competing contentions concerning the relevant industrial instruments. In that regard, all matters concerning terms and conditions of employment presumably would be the subject of contention between the parties. [70] Mr Parkin submitted that none of the respondents’ objections was contingent upon ascertaining which industrial instrument applies, as they are global objections that apply in respect of each one of the industrial instruments. If it is the case that the jurisdictional objections were rejected, then it may be the case the next step that needs to be addressed would concern consideration of the relevant industrial instruments. But at the present time, it would be inappropriate to venture that far; it would be putting the cart before the horse. [71] There was an adjournment, during which discussions were held between the parties. [72] Upon resumption, Mr Gibian submitted there was obviously an issue of substance between the parties as to which instrument applies to the relevant employees in the early learning centres operated by the school. Relevant to that issue were at least two matters: the identity of the employer, including over a period of time, of the relevant employees; and the question of common enterprise, whether the learning centres are a part of the common enterprise with the school, which, Mr Gibian submitted, seems clear. The documents that the IEU sought to be produced are obviously directed at that matter. [73] Mr Gibian noted a jurisdictional issue had been raised and had been articulated to some degree at least in earlier proceedings. The understanding of the IEU was that part of the jurisdictional issue which was sought to be raised related to which disputes process was being utilised and from what source the Commission derived its capacity to deal with the matter. That is, whether it was a dispute under one or both of the dispute processes in the Reddam Agreements or under one or other of the relevant modern awards applicable in the matter, or applicable to the respondents. However, having since read the respondents’ submissions on the jurisdictional objection, the respondents’ position appeared to have altered somewhat. The objections turned on the compliance with the various procedures, it appeared, such that the jurisdictional objection as it was characterised was not one that went fundamentally to the capacity of the Commission to deal with the matter; it was, at best, an assertion that “various boxes have not been ticked, or someone else’s name ought appear on a form”, rather than any matter of substance. [74] Mr Gibian’s submissions continued that even if there was something to all of that, it is capable of being remedied in a quite straightforward way which would allow the Commission to progress to the substance of the matter. By way of elaboration, Mr Gibian submitted that the objection about the party seemed to be that the proceedings are described as a nullity and were improperly constituted because the name of the IEU appeared on the initiating process rather than an employee concerned. Mr Gibian submitted that the IEU did not necessarily accept that as being correct given representation in disputes procedures. It seemed to be that this was the substance of the respondents’ submissions as to asserted nullity in the proceedings: the union’s name appears on the application. Obviously, it was submitted, what had happened in this matter is that members of the IEU approached the union in relation to concerns at the workplace. [75] Discussions had been held between the IEU and the respondents in relation to members’ concerns and, given matters have not been resolved, the IEU brought this application acting on behalf of members. If it was being said by the respondents that the IEU’s name, albeit acting in a representative capacity, ought not appear on the application form bringing the matter before the Commission, but that it should be that an employee’s name or a number of employees’ names ought to appear, then those are issues that can be dealt with. [76] I raised with Mr Gibian my understanding of Mr Parkin’s submissions at an earlier stage of proceedings to involve the proposition that names specifically were required of individual employees and, absent that, some form of instrument of appointment if it was the modern awards’ disputes provision that applied. In response to my seeking clarification in that respect concerning the earlier submissions, Mr Parkin indicated that the objection was not necessarily categorised in that way now by the respondents, but, rather, that the dispute before the Commission is the dispute that was between the employee and the employer as expressly referred to in all of the enterprise agreements and modern awards relied upon by the IEU. To the extent there might be representation available, or assistance provided, there should be some indication of on whose behalf is the IEU is purporting to act. Mr Parkin submitted that the question to be asked is: Who is the party to the purported dispute between the employer and employee? Those should be the proper parties on the true construction of any of the awards or agreements relied upon in bringing the dispute to the Commission. Mr Parkin confirmed it was “absolutely” the case that individuals’ names ought be specified as the applicants and, absent the names of individual employees as applicants, the proceedings were improperly constituted. Mr Parkin submitted it is accepted that the modern awards relied upon by the IEU permit the union to represent an employee in a dispute resolution process. The respondents were not aware of any objective basis for believing that in fact occurred; but, even if that had occurred, it would not constitute the IEU as being anything other than an agent of the employee. The IEU is not exercising some sort of right of subrogation in the Commission; the IEU is acting as lawyers, essentially a representative, rather than as the party itself. [77] I noted it is an everyday experience of dispute notifications that industrial organisations bring proceedings in a representative capacity on behalf of their members. I noted also I had earlier heard submissions about employees’ concerns, or alleged concerns, about identification of them individually – being a matter which had been touched upon in relation to the IEU using right of entry provisions under s.481 of the Act (i.e. a permit holder may enter premises and exercise a right under s.481 or s.482 that relates to or affects a member, being a matter which would involve identification to the respondents of membership of the IEU and/or at least those who had sought the IEU’s assistance in matters.) I also noted the submissions of Mr Parkin there would be absolutely no adverse action taken by the respondents against the employees concerned if their union status was identified through some right of entry-related mechanism. [78] I noted it would certainly more typically be the case in proceedings before the Commission that union-involved applications are initiated by a union in its representative capacity, as opposed to a conglomerate of named employees/union members initiating proceedings, with the relevant union identified as being their representative as in the form of a firm of solicitors lodging an application on behalf of named individuals, or something of that nature. (See, for example, Barsham & Basford and Others v Commonwealth of Australia as represented by the Australian Federal Police[2015] FWC 3109). [79] Mr Parkin submitted that the difficulty with what I had put about the typical situation concerning applications to deal with a dispute is that jurisdiction to deal with a dispute arising under an industrial instrument derives from s.739 Act – and it is legally perfectly clear that the terms of the industrial instrument are determinative. The question is not what ordinarily happens; the question is a construction of the industrial instrument in that particular circumstance. Mr Parkin submitted that neither the modern awards nor the Reddam Agreements relied upon by the IEU permit not identifying the names of the individual employee or employees as being the applicant/s. [80] I commented to the parties there was a certain irony: If the IEU’s contention was correct that the ELS employees are covered by the Reddam Agreements, I would have power to do no more than make non-binding recommendations to settle the dispute; if the respondents’ contention was correct that the relevant employees were subject to the modern awards’ disputes resolution procedures, I would have more broad-ranging powers. But if the respondents’ submissions as to the modern awards were correct, then, in effect, that means the IEU’s case was defeated. [81] In response to my observation, Mr Gibian submitted while that might be an irony at least the IEU would have an answer to the question, which is essentially what he thought the IEU and its members seek; and, obviously, if the Reddam Agreements do not apply there can be bargaining, in due course, for a new enterprise agreement to cover this part of the enterprise. [82] Mr Gibian returned to what he understood appeared to be the primary jurisdictional objection, which he described as involving that a different name ought to appear on the application form filed in the Commission. He described this as being the substance of the objection. While the IEU does not accept there is anything to that objection, even if there were something to that objection it is a matter able to be remedied so as to move forward and deal with the substance of the matter. [83] Mr Gibian characterised the other objections as going to compliance, that is, alleged deficiencies in compliance with the disputes resolution processes. In circumstances where the disputes process is that either in the Reddam Agreements or under the relevant modern awards, the respondents’ outline of submissions on the jurisdictional objection, Mr Gibian submitted, do touch upon differences between the processes contemplated by the disputes process in the Reddam Agreements and the modern awards. [84] While an issue of construction may arise, at least according to the respondents, there is an expressed capacity in the modern awards for representation, but, Mr Gibian’s submissions continued, he did not think there is express reference to representation in the Reddam Agreements. As to this submission, I observed that s.186(6) of the Act would appear to have some relevance. I noted that the disputes procedures in clause 6(a) in the Reddam Operational and Support Agreement (which are relevantly identical to those in clause 14(a) of the Reddam Teachers Agreement save for a seemingly inconsequential variant on the words the words “or his/her nominee” as against “or his or her nominee”) provides as follows: “… (a) Any grievance or dispute which arises shall, where possible, be settled by discussion between the Employee and the Principal or his/her nominee in accordance with any procedures that have been adopted by the School.” [85] On one reading of it, it seems the discussion is to be between the employee concerned and the principal or the principal’s nominee - but while the reference to his/her nominee seemed (grammatically) disjunctive, I ventured the thought that a reading of the reference to “his/her nominee” had to be conditioned by the consideration arising from s.186(6) of the Act in connection with the approval of the Reddam Agreements concerning the requirement for a term about settling disputes. (Relevantly, s.186(6) of the Act provided as at the time the Reddam Agreements were approved, as it does now, that in approving an agreement there must be satisfaction that the agreement includes a term that allows for the representation of employees covered by the agreement for the purposes of that procedure). [86] Mr Gibian submitted that was why he had submitted a matter of construction may arise; and one would construe Reddam Agreements’ dispute procedures both consistently with the Act and with common practice, that is, that such discussions can involve a representative and, not uncommonly, a union representative. [87] I reiterated that the reference to or his/her nominee appeared disjunctive, but, as a preliminary view, I did not think the reference to nominee can really be given any other reading (other than the reference to his/her nominee as including reference to the employee’s nominee), given the statutory mandates in connection with the approval of the Reddam Agreements. [88] Mr Parkin submitted that would be a question of substance arising in the jurisdictional objection, and not a question that arises in the face of the application to set aside the orders to produce and caution needed to be exercised not to trespass onto the merits of the substantive application. I indicated that I put it no higher than that I was proceeding on the basis that the wording of the disputes procedures (as it refers to a “nominee”) in each of the Reddam Agreements was presumably to be read conformably with s.186(6) of the Act. [89] Mr Gibian submitted that where the respondents raise allegations as to the compliance or otherwise with the steps required by the respective dispute resolution procedures, it may be relevant to know, depending on the facts, which of the dispute resolution procedures in fact applied. Presumably, Mr Gibian’s submissions continued, if the respondents are to be successful in their jurisdictional objection, they would need to address non-compliance, whether that in fact occurred under the relevant instruments that were in fact applicable; and the respondents’ submissions endeavour to address and remark upon differences. The significance of those differences, or whether they in fact arise, arises upon an argument in fact happening. But the respondents wish, Mr Gibian submitted, to have the argument without touching upon which procedure applied while wishing to rely upon an alleged non-compliance with procedures which contain different elements. [90] It may or it may not be necessary to make that determination on the jurisdictional issue, but one could not know at that point whether that was the case. It would depend upon what facts exist concerning compliance with one or other of the disputes processes that may apply; and it was difficult to see how the respondents “can get away from that” given the way the submissions were phrased. [91] As to the respondents’ submissions concerning oppression, Mr Gibian made submissions, so there was no misunderstanding as to what was being sought, that the notices to produce were directed principally to letters of appointment, pay slips and the like concerning employees performing work in the early learning centres rather than all employees of the respondents. Mr Gibian acknowledged that while the notice appeared to relate to Reddam House as a whole, that was beyond what was in fact sought. [92] Mr Gibian submitted there are about 30 employees currently working in the early learning centres; and prior to 2015 the number was around was around 15 employees because the new (St Leonards) centre opened at the start of 2015. The concerns expressed in relation to Exhibit 1 appeared to address Crawford Education Pty. Limited as a whole, but it was unclear to the IEU whether that is just the early learning centres or it has other activities. [93] I observed that I had thought, on my own reading of the notices, that what was being sought was a little ambitious. Mr Gibian submitted, in that respect, he wished to clarify that what it in fact was intended in the notices, and indeed on its words applied to, it is a group of employees which until 2015 was about 15 and is now about 30 in number. [94] Mr Gibian submitted that to assist in terms of scope, it was not clear, with respect to a group of between 15 and 30 employees over the period in question, why the letters of appointment could not all be provided. Similarly, as to group certificates, there is only one each year for the employees concerned and they are obviously-relevant documents. [95] As to payslips, Mr Gibian submitted that those documents were sought over a period of time because one of the issues is whether things have changed, or how things have changed, over the period. He proposed in respect of pay slips, given the concerns in Exhibit 1 concerning quantum of documentation, that this be narrowed to June in each of the years. [96] With respect to leave approvals, Mr Gibian proposed to narrow to notices to employees with surnames starting from A-E or something of that nature. [97] With respect to letters of termination of employment, Mr Gibian proposed that all such documents be provided as there presumably would not be a lot of documents in that regard. [98] Mr Gibian submitted that the IEU really did not understand why the scope of documents would produce great difficulties, which were directed at particular types of documents and which would not be large in number. For example, Order 3 related to information given to employees leading-up to the time of the approval of the Reddam Agreements. [99] Mr Gibian submitted the registration of licensing documents should be reasonably apparent, as should contracts and arrangements between Reddam House and what is described as Reddam ELS and the relevant corporate entities as should a document setting out the staffing and reporting structure of the school. [100] Mr Gibian also submitted that these were the types of matters to deal with practicability-related issues. He added there was a preparedness to reasonably discuss timing and the like. [101] Mr Parkin addressed a number of matters following the conclusion of Mr Gibian’s submissions. The first was the submission regarding the extent to which the jurisdictional submissions touch upon differences between the disputes procedures in the Reddam Agreements and the modern awards. [102] Mr Parkin submitted that as to the question of improper constitution, it would not matter whether there is representation. As referred to in the respondents’ outline of submissions, it does not change who the proper party is to these proceedings. To the extent that discussions, at the workplace, involving employees, have not been engaged in - that is a common requirement to each of the dispute resolution provisions - and it would not have any bearing whatsoever which of the industrial instruments applied in those circumstances. [103] In terms of whether the matters raised in the initiating process had been the subject of discussions, that is a question for evidence and not a question that would be impacted in any way by a determination of which industrial instrument applies – as would be the case with whether the matters arise under the awards, agreements or the NES. The question can be dealt with without any examination of that employment relationship, the proper industrial instrument and so forth. [104] As to oppression and the volume of documents to be produced, Mr Parkin noted Mr Gibian’s submissions as to the scope of the documents. Mr Parkin submitted the problem was not so much the number of documents that would be produced - and the respondents were not in a position to inform the Commission what number of documents would be produced in respect of a number of these categories. The reason for that was due to the scope of the search that would be required, the generality, and the lack of particularity - with the result the respondents would have to search every email of every employee who had been employed by the ELS for the past ten years to ascertain whether a particular document fell within or outside a particular category. What the respondents were being asked to do was essentially to engage in a discovery exercise which is tantamount to a significant piece of commercial litigation and at this stage of the proceedings that is just not appropriate. Mr Parkin noted that I had already commented that the notices to produce were very wide and ambitious. Mr Parkin added that this is an incredibly busy time of the year for both respondents given the exigencies of dealing with fees and enrolments for 2016, and the respondents are both relatively small organisations that do not have substantial bodies of individuals who can drop everything and be diverted to this exercise - to which I noted that any order of the Commission would need to be complied with. [105] Mr Parkin submitted that would be the advice provided and if, contrary to the respondents’ submissions, the Commission were minded to make orders, a question of practicality arises. Mr Parkin submitted the Commission should not make orders which cannot be complied with in any practical sense and certainly by the following Monday morning. It would be just impossible to see how there could be compliance within that timeframe. I stated that I could accept that. Mr Parkin’s submissions continued by exampling various matters going to particularity (or lack thereto), the difficulties with compliance, oppression and the penalties for non-compliance. [106] Having heard the parties’ submissions, this was then said (Transcript PN626 to PN631): “THE COMMISSIONER: I think that there is relevance to some of the documents being sought. The relevance goes fundamentally to my jurisdiction to deal with the matter. However I accept the submissions of Mr Parkin that for a range of reasons it is going to be impossible to produce the volume of documents being sought on the face of the current notice to produce. I have heard Mr Gibian's submissions about narrowing matters in that regard. What I would like the parties to do is to go into one of the conference rooms, Mr Gibian, you can then propose some amendments to more accurately reflect the flavour of what you have been describing and then consistently with my view that some of the information will be relevant in this dispute, I will rule on matters which need to be ruled on concerning the content of the amended notice to produce which I will issue. MR PARKIN: Commissioner, perhaps the most convenient question then is if the applicant were to provide a revised notice to produce noting the Commission's comments and we could then address that. It might be of assistance if the Commission could indicate which particular categories are problematic in the Commission's view. It might narrow the scope of the discussions. THE COMMISSIONER: I think a good starting point for an amended draft order would be at least some of the matters that you have touched upon. Mr Gibian, you have referred to - - - MR GIBIAN: We have already described those to the respondent - - - THE COMMISSIONER: What I would like to see is - you can do it by way of hand annotation on the order and my associate can provide photocopying facilities if you ask him so that everyone can have a better look at what documents it is that you are pressing.” [107] I also, as an aside, observed that this matter seemed to be gaining greater proportions than might otherwise have been anticipated in a dispute of this nature, or at least been anticipated by me. I noted that the IEU had submitted in earlier proceedings that it is not the usual modus operandi of a union such as the IEU to be exercising rights of entry and matters of that nature. I also noted the submissions for the respondents that they had been acting lawfully and consistently with their obligations as employers. Against the background of having noted those earlier submissions, I added I remained very hopeful that the parties could reach a resolution. Based on a schools matter which I had endeavoured to assist conciliate, I noted, perhaps a little too colloquially, that there is nothing that the media loves better in the educational sector than stories concerning private schools. I added it was the kind of attention that I would hope could be avoided by discussions between the parties to see if a resolution could be reached in relation to this matter, rather than the matters being determined in publicly-issued decisions. I noted this was, however, entirely a matter for the parties and they were each entitled to press their legal rights and indicated that I raised this in the context of trying, once again, to encourage the parties to find some way through this dispute rather than having, potentially, a series of Commission decisions setting-out the matters that are being advanced by the parties respectively. I noted I had read in The Australian Jewish News there was another (third) ELS in the pipeline at Lindfield, a matter which, as Mr Parkin submitted, was raised previously in conciliation (and, although I had not noticed until preparing this decision, was also referred to in the third page of MFI 1). [108] I inquired whether the parties had gone to the documents that I provided at the first conference on 23 November 2015, which, I stated, I had hoped might assist in a resolution of the dispute. Mr Parkin submitted that had occurred, adding that the scope for further progression of this beyond the jurisdictional objection is a matter which remains unseen but the jurisdictional objection remains and is pressed. [109] In response to a query from Mr Gibian, I recapped some matters that had occurred in earlier proceedings in which he had not appeared. At the conclusion of that summary, I stated that the matters in the summary are some of the matters the parties may wish to look more closely at in terms of narrowing the ambitious scope of the notices to produce and perhaps focus on the ABN number or the name of the employer identified through a representative sample. [110] Mr Parkin had a pressing commitment, with the result the matter was stood-down the list until not before 4.00pm that same day. [111] Before adjourning, I set aside the extant notices to produce as the respondents had sought in seeking a relisting of the matter. Thus, I acceded to the respondents’ application to set aside the first notices to produce. [112] I requested that if the IEU had alternative draft documentation and if there was any feasibility of holding discussions before the matter resumed, the parties should hold such discussions. [113] Mr Gibian undertook that redrafted documentation would be filed and served before 4.00pm, if that could be done. [114] At about 3.40pm draft proposed orders were filed and served by the IEU. The IEU indicated the respondents did not consent to these. The resumption of the hearing on 4 December 2015 [115] Upon resumption of the hearing, at about 4.40pm on 4 December 2015, I was informed some discussion had been held between the parties concerning amended schedules for the orders. Mr Parkin submitted that he wished to make it clear that by engaging in these discussions, it was not the respondents’ intention to consent to the notices to produce, but, rather, to bringing the orders into a manageable form in a time that could be complied with by the respondents. [116] Mr Parkin began by indicating the first area of agreement which, Mr Gibian submitted, was agreed without prejudice to the IEU to seek a further order to produce at a later time, should it be necessary. [117] I was informed there was an issue about whether the documents should be redacted such that personal information is removed. There was some discussion on how best this might be done. In this regard, I referred to another matter where access to documents produced had been restricted, effectively, to the legal team in that matter (and later provided to the parties a sample of an order I had made in that regard). [118] The other matters where agreement had been reached were then outlined; and there was some further, short discussion about matters around that. [119] Given that Mr Gibian had a pressing commitment, I inquired whether it would be more convenient to deal with the balance of matters on the morning of Monday 7 December 2015. I inquired who could prepare the amended schedules to the orders. There was then further discussion about the schedules and it appeared not everything was quite proceeding on the basis of a shared understanding of what had or had not been agreed as to the schedules and there may remain an issue about practicability of compliance as to certain matters within the revised timeframe. [120] I suggested a basis to deal with matters, namely, that I issue the orders with the amendments to the schedules agreed between the parties; and if an issue arose concerning practicability with compliance it be open to the respondents to seek a relisting to seek a variation of the orders (but that the parties should hold discussions in that regard in the first instance). [121] It was agreed that amended draft documentation would be provided to my chambers by the IEU by 11.00am on Monday 7 December 2015. [122] Mr Parkin also requested written reasons for the decision concerning the notices to produce. He submitted there was no urgency for those reasons, save that the respondents sought those written reasons by 14 December 2015 if possible. While affirming, in response to the respondents’ request that I would issue written reasons, I separately inquired whether that was necessary in circumstances where the proceedings had taken the development that they had that afternoon. Mr Parkin submitted that, in the respondents’ view, written reasons were necessary – explaining that the discussions had concerned what the respondents were able to comply with rather than what they agreed to comply with. [123] I observed that the written reasons would be perhaps the first of potentially many decisions that I adverted to earlier in the proceedings, to which Mr Parkin responded that his clients would seek to avoid that to the greatest extent they can. [124] The matter was stood-over pending the filing and service of the documentation that had been the subject of the proceedings. I requested that the documentation be exchanged as between the parties prior to forwarding it to me, with the request that the parties attend to any minor changes that may be needed prior to forwarding the documentation to me. [125] I also indicate that I would endeavour to publish the requested reasons before the hearing on 14 December 2015. [126] In the upshot, a relevant conclusion to this stage of the proceedings included:
The orders [127] Draft orders were filed and served on Monday 7 December 2015, but not issued as there was certain dispute from the respondents’ solicitors. Following subsequent communications between the parties, further draft orders were filed and served on Tuesday 8 December 2015 in terms by then confirmed as having been settled between the parties, albeit on a limited basis, as set out in the email filing the orders which noted the following from the respondents’ solicitors: “We are instructed that our clients do not consent to either the Order for Inspection or the Orders for Production, however we agree that the terms of the Orders for Production now reflect our understanding of the discussions last Friday (noting the incorrect spelling of Reddam House Limited in category 4, and that the full name of Crawford Education – i.e. Crawford Education Limited – could be used in categories 4 and 5, for more certainty).” [128] I signed the orders and they issued that day. The orders contained a date for return which already had been settled between the parties on Friday 4 December 2015 as being practicable for compliance. [129] One order was to the Principal of Reddam House, Mr Pitcairn, and was returnable by 10.00am on Thursday 10 December 2015 (the “Reddam House order”). The schedule to the Reddam House order read: “SCHEDULE 1. In respect of employees performing work at the early learning centres now known as Reddam ELS, copies of the following documents in the period from 1 January 2011 until the present: (a) all letters of appointment; 2. In respect of Debbie Dowd, copies of documents, whether in electronic format or hardcopy, or emails relating to the vote of employees on, or the approval by Fair Work Australia of, the Independent Schools (Support and Operational Staff) Reddam House Agreement 2011-2014 and the Independent Schools (Teachers) Reddam House Agreement 2011-2014 that constitute: (a) communications sent to staff containing the representational rights notice, including in relation to staff emails, the list of recipients of such email; 3. Copies of documents recording the registration or licensing of the early learning centre now known as Reddam ELS with a licensing authority as an educational service or child care service or service of that nature since establishment. 4. Copies of any contract or lease for provision of services as between Reddam House, Reddam ELS, Reddam House Limited or Crawford Education Pty Limited in the period since 1 January 2011. 5. Copies of a document, whether in electronic format or hardcopy, setting out the current staffing and reporting structure of Reddam House, Reddam ELS, Reddam House Limited or Crawford Education Pty Limited.” |
[130] The schedule to the order for production concerning Crawford Education Pty. Limited, addressed to the company’s Proper Officer, was in terms identical to that in the Reddam House order. [131] The related order concerning inspection of the documents read: “The Fair Work Commission orders: 1. Inspection of the documents (including the copies of any documents provided to the applicant’s representative) falling within category 1 of the Commission’s orders for production of 8 December 2015 be limited to Carol Matthews and Robert Seals, respectively Assistant Secretary and Industrial Officer of the applicant, and legal counsel engaged by the applicant for the purpose of the proceedings.” [132] It may be noted I had no role in ruling on the content of the orders, disputed or otherwise, just as I had no involvement in determining the return date for the orders or determining any matters addressed in the schedules to the orders. I had no role in determining the text of the ancillary order concerning limiting access, albeit I had suggested that the parties may wish to consider using an order that I had previously issued in that regard. Reasons[133] My reasons for acceding to the respondents’ application to set aside the first notices to produce was that they were plainly too wide and the timeframe otherwise too short for compliance. I accepted the submissions of Mr Parkin that, for a range of reasons, it would have been impossible to produce the volume of documents being sought on the face of the then extant notices to produce. [134] As to my comment that I thought there was relevance to some of the documents being sought with relevance going fundamentally to jurisdiction to deal with the dispute, I considered there indeed was relevance to some of the documents being sought. [135] Sections 739 of the Act identifies the powers of the Commission concerning disputes in the following way: 739 Disputes dealt with by the FWC (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute. (2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless: (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter. Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)). (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term. (4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). (5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. (6) The FWC may deal with a dispute only on application by a party to the dispute.” [136] The dispute resolution procedures in each of the modern awards to which reference was made in the initiating process are in identical terms, reading: “9. Dispute resolution 9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate. 9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 0 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission. 9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration. 9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute. 9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause. 9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.” [137] The dispute resolution procedures in the Reddam Teachers Agreement reads: “14. Disputes Procedure Subject to the provisions of the Act, all grievances, claims or disputes in relation to matters arising under this Agreement or the NES shall be dealt with in the following manner: (a) Any grievance or dispute which arises shall, where possible, be settled by discussion between the Teacher and the Principal or his or her nominee in accordance with any procedures that have been adopted by the school. (b) Should the matter not be resolved, it may be referred by either party to Fair Work Australia, or any other person agreed between the parties, for conciliation. (c) During the conciliation Fair Work Australia may: (i) arrange conferences of the parties or their representatives at which Fair Work Australia is present; and (ii) Fair Work Australia may require the attendance of the parties or their representatives; and (iii) arrange for the parties or their representatives to confer among themselves at conferences at which Fair Work Australia is not present; and (iv) if requested by a party, make non-binding recommendations to settle the dispute. Such recommendation shall not be binding on the parties to the dispute and shall not affect any other remedies the parties may have in relation to the dispute. (d) A Teacher who is a party to a dispute must, while the dispute is being resolved: (i) continue to work in accordance with his or her contract of employment, unless the Teacher has a reasonable concern about an imminent risk to his or her health or safety; and (ii) comply with any reasonable direction given by the School to perform other available work, either at the same workplace or at another workplace. (e) In directing a teacher to perform other available work, the School must have regard to: (i) the provisions (if any) of the law of the Commonwealth or of a State or Territory dealing with occupational health and safety that apply to that employee or that other work; and (ii) whether that work is appropriate for the Teacher to perform.” [138] The disputes procedure in the Reddam Operational and Support Agreement, in terms relevantly identical to the Reddam Teachers Agreement, reads: “6. Disputes Procedure Subject to the provisions of the Act all grievances or disputes in relation to matters arising under this Agreement or the National Employment Standards shall be dealt with in the following manner: (a) Any grievance or dispute which arises shall, where possible, be settled by discussion between the Employee and the Principal or his/her nominee in accordance with any procedures that have been adopted by the School. (b) Should the matter not be resolved, it may be referred by either party to Fair Work Australia, or any other person agreed between the parties, for conciliation. (c) During the conciliation Fair Work Australia may: (i) arrange conferences of the parties or their representatives at which Fair Work Australia is present; and (ii) Fair Work Australia may require the attendance of the parties or their representatives; and (iii) arrange for the parties or their representatives to confer among themselves at conferences at which Fair Work Australia is not present; and (iv) if requested by a party, make non-binding recommendations to settle the dispute. Such recommendation shall not be binding on the parties to the dispute and shall not affect any other remedies the parties may have in relation to the dispute. (d) An Employee who is a party to a dispute must, while the dispute is being resolved: (i) continue to work in accordance with his or her contract of employment, unless the Employee has a reasonable concern about an imminent risk to his or her health or safety; and (ii) comply with any reasonable direction given by the School to perform other available work, either at the same workplace or at another workplace. (e) In directing an Employee to perform other available work, the School must have regard to: (i) the provisions (if any) of the law of the Commonwealth or of a State or Territory dealing with occupational health and safety that apply to that Employee or that other work; and (ii) whether that work is appropriate for the Employee to perform.” [139] Irrespective of the submissions for the respondents that matters of jurisdiction should be determined (only) on the bases of the jurisdictional objections they foreshadowed in their outline of submissions filed in anticipation of the hearing concerning those objections, it is plain that the Commission is itself bound to consider and be satisfied as to its own jurisdiction - and not only on the basis of objections which one party delineates or parties delineate as being relevant in that regard. [140] It is for the Commission, not for a party or parties, to determine what may or may not be relevant. It is not for a party to expect that a matter is to be heard and determined only on the jurisdictional bases for which it contends. Foundational in relation to an application to deal with a dispute is consideration of the disputes resolution procedure, the steps taken in relation to that procedure, and the powers conferred on the Commission by the procedure. See, for example, the comparatively recent decision in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619, albeit that case turned on circumstances different from those in relation to this application. [141] The respondents’ position is that Crawford Education Pty. Limited is and has always been the employer of the employees of the ELS. The present and clear uncertainty or dispute about the identity of the employer is a matter which appeared highly pertinent to the relevantly applicable disputes resolution procedures, given the nexus of the correct identity of the employer. The respondents determined not to advance anything to assist the Commission in clarifying the identity of the employer of the ELS employees or, collaterally, assist in the question of the Commission’s powers in relation to what are markedly different arrangements in the disputes procedures under the Reddam Agreements and the relevant modern awards. The question of jurisdiction ought not be, or potentially even could not be, determined in a vacuum without proper identification of the relevant disputes procedure. The respondents’ pending jurisdictional objections may themselves turn on differences between the respective industrial instruments, such as whether individual employees need to be identified and be personally involved in the discussions, as opposed to through a representative. [142] As I noted in the proceedings, I thought there was relevance to some of the documents sought in the original orders, with relevance going fundamentally to jurisdiction. [143] Matters then unfolded as they did. In the event it is not already plain, I did not, after stating that I thought there was relevance concerning some of the documents that were sought in the original orders, make any rulings or decision to determine the content of the three proposed draft orders which were settled between the parties, subsequently filed on 8 December 2015, and issued that same day. I note Mr Parkin’s submissions that the (first) orders would effectively have granted some of the matters that the sought IEU as relief. It is worthwhile, I think, to again reproduce the relief that was actually sought: “A) That the Commission recommends that: 1. The Employer provides the Union with information and documentation relating to letters of appointment and pay slips to confirm which entity employs and has employed staff of the early learning services. 2. The parties to have discussions to identify whether the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement 2011-2014 and the Independent Schools NSW (Teachers) Reddam House Agreement 2011-2014 apply or has applied to employees of the early learning services, and whether such instrument continues to apply to any employees. 3. The parties have discussions as to which industrial instrument currently applies to the employment of staff of the early learning services, and that employer complies with such instrument. B) If the parties cannot resolve all issues in dispute following conciliation and discussion, and the respondent submits that a modern award applies, that the following course be adopted: 1. The issues in dispute be identified by each party. 2. The Commission arbitrates on the issues.” (My underlining) [144] Thus, the IEU sought in A) above no more than a recommendation that the respondents provide clarifying information to confirm which entity has employed staff of the ELS, so that discussions could be held to identify whether the Reddam Agreements applied or continue to apply to any ELS employees. The relief sought in B) above was that, absent resolution and if the respondents submitted that a modern award applies, the issues in dispute be identified and there be arbitration on the issues. [145] As I have noted earlier, the Reddam Agreements provide only for non-binding recommendations to be made whereas the disputes resolution powers under the modern awards, which the respondents submit apply, would be relevantly more comprehensive. [146] As a result of the respondents taking their jurisdictional objections (which, of course, they are entitled to do - and those objections are yet to be determined) the proceedings took a different, arbitral path in the timetabling of a hearing - as opposed to, for example, considering providing any information, even if conditioned in a way that may have assuaged the respondents’ concerns about confidentiality and the like. [147] True it is that the respondents objected to any orders being made, for the reasons they advanced, but it is to be emphasised, nonetheless, that the second orders were settled in a form agreed to between the parties themselves, rather than as a result of any ruling or decision by me concerning their content, in circumstances where I set aside the first orders. I might note that the result of the parties’ own discussions concerning the settled form of the orders specified potentially more than the IEU had identified as the primary type of relief in the initiating process. The terms of the orders settled between the parties speak for themselves in that regard. [148] To the extent the orders in the form settled between the parties addressed matters which went beyond what otherwise may have been addressed in any order that potentially may have been made in relation to:
that was directly a product of the parties’ own discussions rather than any determination by me. Post script [149] The proceedings that were listed before me to determine the respondents’ jurisdictional objections were vacated following an appeal by the respondents concerning the orders, initially involving stay application proceedings: Reddam House Limited; Crawford Education Pty Limited T/A Reddam ELS v Independent Education Union of Australia[2015] FWC 8534. The appeal itself is pending. |
COMMISSIONER
Appearances (on the hearing on 4 December 2015 concerning the application to set aside or vary notices to produce):
M. Gibian of counsel for the Independent Education Union of Australia.
C. Parkin of counsel for Reddam House Limited (first respondent) and Crawford Education Pty. Limited T/A Reddam ELS (second respondent).
Hearing details:
2015.
Sydney;
December, 4.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR574924>
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