JKC Australia LNG Pty Ltd v Construction, Forestry, Mining and Energy Union

[2015] FWC 7940

[2015] FWC 7940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

JKC Australia LNG Pty Ltd
v
Construction, Forestry, Mining and Energy Union; Rolly Cummins; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Brian Wilkins; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Michael Haire.
(RE2015/875)

COMMISSIONER SIMPSON BRISBANE, 19 NOVEMBER 2015

Ichthys Onshore Construction Project, Blaydin Point, Northern Territory – Application for Order requiring Production of Documents.

[1] On 16 June 2015 JKC Australia LNG Pty Ltd (the Applicant) made an application under s.505 of the Fair Work Act 2009 (“the Act”) for the Fair Work Commission (“FWC”) to deal with a Right of Entry Dispute between it and Construction, Forestry, Mining and Energy Union; (the First Respondent) Rolly Cummins; (the Second Respondent) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Third Respondent) Bryan Wilkins; (the Fourth Respondent) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; (the Fifth Respondent) and Michael Haire. (“the Sixth Respondent”).

[2] The matter is listed for hearing on 2, 3 and 4 February 2016 in Darwin. On 5 November Maurice Blackburn Lawyers on behalf of the Third and Fourth Respondent filed an application for the production of documents under s.590(2)(c) of the Act. On 6 November Norton Rose Fulbright, on behalf of JKC wrote to the FWC opposing the application and seeking that it be listed for hearing. This matter was listed for hearing yesterday 18 November 2015.

[3] The relevant power under under section.590 (2)(c) is a broad discretionary power. In Queen v Marks; Ex parte Australian Building and Construction Employees and Builders Labourers’ Federation, (insert reference) Justice Mason said as follows:

“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”

[4] In submissions Maurice Blackburn referred to this authority as well as a Federal Court decision of Justice Beaumont in Re Trade Practices Commission v Arnotts Limited[1989] FCA 248; (1989) 88 ALR 90); were at paragraph 44 it says as follows:

“44. Without restricting the inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of Mattingly.”

[5] A decision of the FWC in Faulkner v BHP Coal Pty Ltd[2014] FWC 5134 was relied upon which adopted tests set out in Tamawood Limited v Habitare Developments Pty Ltd[2009] FCA 364 in which Collier J cited with approval a list of principals which Greenwood J had earlier stated to be relevant in deciding whether to issue a subpoena in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233.

[6] Maurice Blackburn also referred to a Federal Court decision in AFMEPKIU v Emergency Transport Technology Pty Ltd[2011] FCA 181 where at paragraph 26 Cowdroy J said as follows:

“26. In summary, the Court is satisfied that the material contained in the Notice to which objection has been taken ‘could reasonably be expected to throw light on some of the issues in the principal proceedings’ : see Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor[1997] FCA 1504; (1997) 37 ATR 432 per Spender J.

[7] Mr Osborne for the Applicant referred to a decision of Commissioner Jones in Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2011] FWA 8756 where an application for orders for production was refused on the basis of lack of particularity, and, on the particular facts of that matter, that what was sought for production was the same was as what was being sought as relief in the substantial proceedings, and in the circumstances the order would have defeated, in large part, the purpose of the substantive proceedings.

[8] The background to this matter was that on 19 October Maurice Blackburn wrote to Norton Rose Fulbright referring to the affidavit evidence filed by the Applicant on 28 August and requesting production of material described in seven separate categories. The material sought, which became the material sought in the application for production is as follows:

1. Documents, including memorandums, emails, reports or other forms or records of communication authored by Mr Daniel Lee, which refer to the alleged incidents of

10 and 12 June 2015 (as referred to in paragraphs 30 to 40 and 72 to 89 of the

statement of Mr Daniel Lee).

2. Records, including memorandums, emails, reports or other forms or records of

communication in respect of the telephone conversation between Mr Daniel Lee

and Mr Brad Hooper on 10 June 2015 (as referred to in paragraph 38 of the

statement of Mr Daniel Lee).

3. Records, including memorandums, emails, reports or other forms or records of

communication in respect of the telephone conversation between Mr Daniel Lee

and Ms Richards on 10 June 2015 (as referred to in paragraph 37 of the statement

of Mr Daniel Lee).

4. Documents, including memorandums, emails, reports, minutes or other forms or

records of communication which refer to the meeting between Mr Daniel Lee, Ms

Amy Richards, Mr David Gittus, Mr Simon Spratt and UGL staff at around 3:00pm

on 10 June 2015 (as referred to in paragraph 50 of the statement of Mr Daniel Lee).

5. A copy of the ‘internal report for the day’s incident’ referred to in paragraph 103 of

the statement of Ms Amy Richards.

6. A copy of the record of all right of entry exercises referred to in paragraph 11 of the

statement of Jacqueline Garland,

7. The “Supervisor Prestart/Debrief lchtys Project CCPP’’ document for 12 June 2015

(see Annexure AR-2 to the statement of Ms Amy Richards for “Supervisor

Prestart/Debrief Ichtys Project CCPP” document for 10 June 2015).

[9] Maurice Blackburn requested a response by 23 October 2015. On 30 October Norton Rose Fulbright responded on behalf of the Applicant, stating among other things that the request was in effect a request for discovery, some of the categories went beyond what would be required by discovery, and that such an order should have been sought some considerable time ago. The letter advised the Applicant would resist any attempt for a discovery order or an order for production of documents.

[10] Norton Rose advised that the Applicant was willing to provide a copy of documents requested in paragraphs 5, 6 and 7 subject to Maurice Blackburn, and the Third and Fourth Respondents undertaking to the Applicant and the Fair Work Commission, not to disclose or use the documents, or information obtained from the documents, for any purpose other than in relation to these proceedings.

[11] In correspondence provided to the FWC by Maurice Blackburn with its application for production it was asserted that documents referred to in the Applicants evidence would assist the Commission in determining the facts and circumstances of the dispute, and the documents requested directly relate to the matter at hand and will aid in the efficient and effective conduct of the proceedings. The correspondence set out the following arguments in support of the orders.

Category 1

[12] The documents listed in category 1 are directly relevant to the discussions between Mr Lee and the Fourth Respondent on 10 and 12 June 2015, and that the content of these discussions are the basis of significant dispute between the parties and contemporaneous records of the discussions will assist the FWC in determining the facts.

Category 2

[13] Mr Lee asserts he had a telephone conversation with Mr Hooper while engaging in the discussion on 10 June 2015. Records of such conversations will assist the FWC in determining the nature of the discussion between Mr Wilkins and Mr Lee, and Mr Lee and Mr Hooper.

Category 3

[14] Mr Lee asserts he had a telephone conversation with Ms Richards while engaging in the discussion on 10 June 2015. Records of such conversations will assist the FWC in determining the nature of the discussion between the Forth Respondent and Mr Lee, and Mr Lee and Ms Richards.

Category 4

[15] Mr Lee asserts the meeting involved various witnesses to the events of 10 June 2015, and the events leading up to 10 June 2015 which are in dispute (for example conversations about the adequacy of venues for union officials to hold discussions). Given the meeting occurred immediately following the incidents on 10 June 2015, any contemporaneous records of the contents of the meeting are relevant to the dispute. Accordingly, the production of such documents will aid in the efficient and effective conduct of the proceedings.

Category 5

[16] Ms Richards has referred to this document in her evidence, however, has not annexed it to her statement. Accordingly, an order to produce this document is appropriate in the circumstances.

Category 6

[17] Ms Garland has stated that the Fourth Respondent has exercised his right of entry on the site approximately 100 times, however does not provide details of the assertions or circumstances of the entries. Accordingly, it is appropriate that the Applicant be required to produce the records forming the basis of such an assertion.

Category 7

[18] The parties are in dispute about the events of 10 and 12 June 2015, however, in its evidence the Applicant has only provided the prestart document for 10 June 2015 (see annexure AR-2) to the statement of Ms Amy Richards). Given annexure AR-2 directly deals with the right of entry exercised by the Fourth Respondent on 10 June 2015, it is likely that the prestart document for 12 June 2015 will also deal with the right of entry exercised by the Fourth Respondent. Accordingly, the document is relevant to the matters in dispute and the production of it will aid in the efficient and effective conduct of the proceedings.

CONSIDERATION

[19] The determination of whether to issue Orders to Produce requires an application of the legal principals in the context of the issues which may arise in the substantial proceedings. The issues in the substantive proceedings as they are alleged to relate to the conduct of the Fourth Respondent includes that during the exercise of a right of entry on 10 June 2015, the Fourth Respondent attempted to hold, attend and/or participate in a combined union meeting in breach of his right of entry conditions, attempted to hold or participate in discussions with employees whose industrial interests his union was not entitled to represent, and organised a combined union meeting.

[20] Further, that on 12 June 2015 the Fourth Respondent walked away from his escorts, refused or failed to follow directions of his escorts to return and conduct his meeting in the assigned meeting room, proceeded by route other than that requested by the representatives of the Applicant, to the Stores Area; being an area not agreed as the location for discussions with employees or an area where employees ordinarily take meal or other breaks, held, attended and/or participated in a combined union meeting at the Stores Area; and held discussions with employees other than those whose industrial interests his union was entitled to represent. Further, the Fourth Respondent organised the combined union meeting.

[21] The Applicant’s representative complained that there is not a basis for requesting the documents in orders 1,2,3 or 4 because the correspondence from Maurice Blackburn to Norton Rose Fulbright of 19 October and correspondence from Maurice Blackburn to the FWC of 5 November in support of the application refers to documents referred to in the Applicants evidence, whereas the evidence of Mr Lee does not refer to documents in the relevant paragraphs. It appears the correspondence from Maurice Blackburn could have been more precise in that paragraphs 5, 6 and 7 refer to known documents, whereas 1, 2, 3 and 4 refer to material which may exist. I do not see this lack of precision as a basis to refuse the application. What is sought in each paragraph in the schedule is identifiable with reasonable particularity.

[22] The Applicant’s representative submitted the expressions ‘which refer to’ and ‘in respect of’ as they appear in the schedule are too broadly defined. I am not satisfied the language is too broad or that an unreasonable burden would be placed on the Applicant in producing the material or that it would be oppressive. In each case the material relates to discrete incidents.

[23] The Applicant submits that the material sought should have been the subject of a discovery order at an earlier stage. As the hearing dates are still some months off a level of prejudice to the Applicant does not arise that would create a justification to refuse the application based on this submission.

[24] When comparing the statements filed to this point, particularly that of Mr Lee and Mr Wilkins it is evident that significant factual disputes arise concerning the relevant events of 10 and 12 June and the material sought in the order, having been made after the filing of statements, satisfies me that it is not fishing, and is material in each case that falls within a category of material that could reasonably be expected to throw light on some of the issues in the principal proceedings.

[25] The Applicant raised a concern that around the time of the events of 10 and 12 June the Applicant made an application to the FWC under s.418 of the Act and that some material that may fall within the ambit of the orders sought may also be subject to legal professional privilege. To address this issue, and circumvent the necessity to deal with this matter again at a later point it is appropriate to include an exclusion from a requirement to produce material that falls within this category.

[26] The Applicant also raised a concern that certain material required may be confidential. As the material that would be required to be produced, would be required to be produced to the FWC in the first instance, it is open for the Applicant to seek orders under sections 593 or 594 if on the Applicant examining the material such a concern arises.

[27] The Applicant also submitted that it was prepared to voluntarily produce the material sought in paragraphs 5,6 and 7 subject to non-disclosure undertakings from Maurice Blackburn and its clients, and that such undertakings were not unreasonable, and in the circumstances of the refusal to give it, this was an appropriate basis for the FWC to refuse the orders. Maurice Blackburn submitted that there was no basis for undertakings beyond the ordinary implied undertaking of parties to proceedings, given there was no special circumstances that would justify such undertakings.

[28] Whilst it is always preferable for parties to resolve these matters on an agreed basis, the fact that the parties could not reach agreement is not a basis for me to refuse the application.

[29] In the course of the yesterday’s hearing an amendment was sought to paragraph 7 of the schedule to insert the words “and any attachment to the document, or stapled to the document” after the word “document” and before the word “for”. This amendment will be reflected in the order issued.

[30] The date for production of the material will be amended to 12:00pm Wednesday 2 December 2015 due to a lapse of time since the time of filing. The Order to produce will be issued with this decision.

COMMISSIONER

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Appearances:

Mr Osborne (Norton Rose Fulbright Australia) for JKC Australian LNG Pty Ltd

Mr Sirvarman (Maurice Blackburn Lawyers) for the Third and Fourth Respondents

Mr Kennedy (Hall Payne Lawyers) for the First, Second, Fifth and Sixth Respondents

Hearing details:

2015.

Brisbane:

18 November