Independent Education Union of Australia v Reverend James Puppady, Association of Canonical Administrators for Saint Ignatius College Geelong T/A Saint Ignatius College Geelong

[2018] FWC 973

[2018] FWC 973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Reverend James Puppady, Association of Canonical Administrators for Saint Ignatius College Geelong T/A Saint Ignatius College Geelong
(C2017/6555)

COMMISSIONER BISSETT MELBOURNE, 14 FEBRUARY 2018

Application for the production of documents – application granted.

[1] The Independent Education Union of Australia (IEU) has notified a dispute to the Fair Work Commission (Commission) in relation to the proper basis of employment of Ms Sarah Purnell over a period of six years during which she has been employed on a fixed term basis as a teacher by Reverend James Puppady, Association of Canonical Administrators for Saint Ignatius College Geelong T/A Saint Ignatius College Geelong (the College).

[2] The IEU says that the employment arrangements are in breach of clause 11.2 and clause 12 of the Victorian Catholic Education Multi Enterprise Agreement 2013 1(the Agreement).

[3] The matter has been subject to substantial attempts by the parties to resolve the dispute and conciliation before me. These attempts to resolve the dispute have not been successful and the IEU now seeks to have the matter arbitrated. Directions for this purpose have been issued by the Commission.

[4] The IEU now seeks that the Commission issue orders for the production of documents directed to the College. The documents sought by the IEU are:

•  Letters of appointment, part-time work arrangements and other documents evidencing the status of the part-time employment of some eight specified employees for specified years; and

•  Letters of appointment and other documents evidencing the tenure (fixed-term or ongoing) and, if fixed-term, the reason for the fixed term appointment of some nine employees for specified years. 2

[5] The College opposes the making of the order.

Independent Education Union of Australia

[6] The IEU says that Ms Purnell has been employed by the College for a number of years as a fixed term employee. It says that the Agreement limits the circumstances when a person may be engaged as a fixed term employee. The College says that Ms Purnell was employed to replace a person on leave. Under the Agreement it is necessary for the College to identify an employee who is on leave that the fixed term employee is replacing.

[7] The IEU seeks the documents to enable it to determine what vacancies actually existed in any given year, which staff were appointed to fill those vacancies and whether there was, in each year a vacancy caused by a person being absent on approved leave to which Ms Purnell was be appointed.

[8] The IEU says that, in response to its application, the College said that in each of the years Ms Purnell was employed on a fixed term basis there were employees on leave and they were therefore entitled to employ Ms Purnell on a fixed term basis. It says that the information sought will assist the Commission in determining if this was in fact the case.

[9] For these reasons the IEU says that the documents sought are relevant.

[10] In response to the remaining indicated objections of the College to production, the IEU says:

•  that the request for information is not a fishing expedition as it is driven by the response of the College to the IEU application;

•  that the provision of the documents will not breach any confidentiality as the information will be subject to implied undertakings (that they will not be used for any other purpose except the proceedings for which they are produced);

•  that questions as to the capacity of the IEU or Ms Purnell to put the documents into evidence are matters for the hearing and not a basis for rejection of the request for the orders;

•  the application is not premature as the College put these matters at issue in its response to the IEU application;

•  that the request is not too broad as “other documents” clearly is in reference to the subject matter of each item in the order and is not reference to documents at large.

St Ignatius College Geelong

[11] The College characterises the dispute before the Commission as being about whether Ms Purnell should be engaged on a fixed term or ongoing basis under the Agreement. It says it is difficult to see how the documents sought by the IEU, in that they go to the status of named employees, are relevant to that claim. It concedes that some of the documents may be relevant if they relate to the circumstances of a particular employee Ms Purnell was employed as a fixed term employee to cover. Further, it says that the documents will not address the vacancies that existed across the school at the relevant time or if Ms Purnell was properly employed on a fixed term basis. It says that this is evidence for the principal of the College to give in his evidence.

[12] The College objects to the production of documents on the grounds that the application is premature. It says that the IEU has indicated previously that, as the College will be relying on the documents, it also needs them. It says that if this is the case the IEU should wait until after the College has filed its material to determine if the order is required.

[13] The College also submits that neither the IEU nor Ms Purnell have any knowledge of the documents. If relied on it says that the documents will need to be admitted into evidence through the College’s witness. Again it says that this establishes that the IEU should wait until the College has filed its material.

[14] The College also submits that the IEU has not established the relevance of the documents and that it appears the request is no more than a fishing exercise.

[15] The College also complains that the order is too broad by the use of the term “other documents”.

[16] For these reasons the College says the order should be refused.

Consideration

[17] In Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 3 Justice Munro identified the approach of the Commission to the exercise of the discretion to issue orders for production and the steps taken in documents finally coming before the Commission:

In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the ‘Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases. [Footnote omitted]

[18] The critical issues in deciding whether to issue the order go to the relevance of the documents; whether to comply with the order would be oppressive; and whether the order is a fishing expedition. In The Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal Pty Ltd 4Vice President Lawler also identified confidentiality as a relevant consideration in determining whether the order should be made.

[19] The decision as to whether to exercise the discretion available to me to issue the order sought by the IEU should not be confused with the process of production and admission of the documents into evidence.

[20] This decision is concerned only with the production of the documents.

Relevance

[21] It is well accepted that the test for relevance “does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand.” 5

[22] In Cosco Holdings Pty Ltd v Commissioner for Taxation 6 Justice Spender suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.

[23] In this case I am satisfied that the documents sought have some potential relevance in that they have the possibility of throwing some light on the matter to decide before me. Whilst I appreciate that the Principal of the College may seek to introduce such evidence himself of absences and fixed term appointments for the period in question all this does is confirm the potential relevance of the material sought. It may make it convenient to not issue the order now as the material may be produced without the order but I am not convinced, in the circumstances of this case, that such an argument means the order should not be issued at this stage due to a lack of relevance.

Oppressive

[24] In McIlwain v Ramsey Food Packaging Pty Ltd and others⁷ Justice Greenwood summarised the issue of the oppressive nature of a subpoena as:

The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and “productive of serious and unjustified trouble and harassment”

[25] I am not convinced that the order is oppressive. The records sought are records required to be maintained by virtue of s.535 of the Fair Work Act 2009 (FW Act) and the associated Fair Work Regulations 2009.

[26] I do not consider it oppressive to require production.

A fishing expedition

[27] Given my findings as to the relevance of the material I am not convinced that the order for production is a fishing expedition. A wider, less defined order might be seen as such (although I do not say it would be) but in this case the applicant for the order has been quite specific. It is anything but a fishing expedition.

Confidentiality

[28] I am not convinced that the confidentiality of the documents is a reason to not require production. It is not unusual, in my experience, that documents sought are confidential. In this case it is not a reason to produce them.

[29] Further, I accept, and I note that the IEU accepts,, that the implied undertaking 8 that the documents produced not be used for any purpose not related to the matter before the Commission applies. Should further orders with respect to maintaining confidentiality be necessary an application can be made in this respect.

Conclusion

[30] For all of these reasons I shall issue the order for production of documents as sought by the IEU except for some clarification that “other documents” includes documents containing variations on the letters of appointment, letters and emails and the like which establish the status or tenure of the named employees but does not include pay slips. I accept the intent identified by the IEU.

[31] Matters in relation as to who may give evidence in relation to the documents are matters best dealt with, should the documents be sought to be entered into evidence, during the proceedings.

[32] The Order sought by the IEU will be issued to the IEU in conjunction with this decision.

COMMISSIONER

Appearances:

E. White, of counsel, for the IEU.

J. Greenleaf for Reverend James Puppady, Association of Canonical Administrators for Saint Ignatius College Geelong T/A Saint Ignatius College Geelong.

Hearing details:

2018.

Melbourne (by telephone):

February 12.

<PR600411>

 1   AE405326.

 2   I do not consider it necessary, for the purpose of this decision to name the specified persons.

 3   Print H2892.

 4   PR962479.

 5   McIlwain v Ramsey Food Packaging Pty Ltd and others (2005) 221 ALR 785.

 6 [1997] FCA 1504, cited in McIlwain v Ramsey Food Packaging Pty Ltd and Others.

7 McIlwain v Ramsey Food Packaging Pty Ltd and others (2005) 221 ALR 785.

 8   Harman v Home Department State Secretary [1983] 1 AC 280.

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