Karaklic v Adse Pty Ltd

[2016] FWC 930

[2016] FWC 930

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Ryan Karaklic
v
ADSE Pty Ltd
(U2015/14208)
COMMISSIONER RYAN	MELBOURNE, 11 FEBRUARY 2016

Application for relief from unfair dismissal - procedural decision - order for production of

documents.

[1]        Mr Ryan Karaklic, the Applicant in this matter, by way of an application by the

Construction, Forestry, Mining and Energy Union (CFMEU), sought and was granted the

issuance by the Commission of an Order for the Production of Documents against the

Respondent, ADSE Pty Ltd (the Order to Produce).

[2]        The Order to Produce was issued by Deputy President Gooley to the Applicant on 18

January 2016 for service upon the Respondent with the compliance date of 27 January 2016.

[3]        On 29 January 2016, post the compliance date, the Respondent made application via a

Form F1 for the variation of the Order to Produce by the removal of paragraph 1 in the

Schedule to the Order to Produce.

[4]        I was allocated this matter by the Panel Head to deal with that application by the

Respondent. I conducted a Mention on 5 February 2016 by telephone with Mr K. Endacott of

the CFMEU representing the Applicant and Mr M. Baroni, Solicitor, representing the

Respondent.

[5]        The Order to Produce made by the Commission was largely upon terms proposed by

the Applicant appearing to have been issued without substantive alteration and required

production of "the documents, records and other information specified in the Schedule to this

order" with the schedule itself comprising the following:

"SCHEDULE

1.          The contracts of employment, on commencement of employment, of each of

the persons employed by ADSE Pty Ltd on and from 6 January 2015, where those

persons’ contracts of employment made reference to them working as a casual

employee and where they worked at a coal mining location in either Narrabri or at any

other coal mine in New South Wales.

[2016] FWC 930

2. Any contract of employment or other employee pay record related to a person

working on or about an underground coal mine in New South Wales who has been

offered or commenced employment with ADSE Pty Ltd since 3 November 2015.”

[6]        Mr Endacott of the Applicant objected to the variation of the Order to Produce and

argued that the reason for seeking the production of the documents detailed in paragraph 1 of

the Schedule was to support the Applicant’s case and that all of the material sought to be

produced remained relevant for the determination of the unfair dismissal application.

[7]        Mr Baroni made certain oral concessions on behalf of the Respondent in that Mention

in relation to the wrong classification of the Applicant as a casual employee and Mr Baroni

advised both the Commission and the Applicant that the concession would be reduced to

writing and included in the Respondent’s submissions which were due to be filed in the

Commission by no later than 12 noon on 8 February 2016. On the basis of the oral concession

made by Mr Baroni, I indicated to the parties that if those concessions were repeated in the

Respondent’s written material then it would appear that there were no reasons for requiring

the Respondent to produce to the Commission the material identified in item 1 of the

Schedule to the Order to Produce.

[8]        Therefore, the agreed position reached with the parties during the Mention was that I

would review the submissions of the Respondent once filed and then I would consider the

application of the Respondent to vary the Order to Produce of Gooley DP on 10 February

2016 by removing paragraph 1 of the Schedule to the Order to Produce.

[9]        To date, I have had no communication from the CFMEU following the Respondent’s

material being filed and served and therefore conclude that the Applicant is still pursuing the

production of the documents by the Respondent.

[10]      However, it was not in my mind, nor was it raised by the CFMEU during the

proceedings on 5 February 2016, that the compliance date of the Order to Produce had already

passed. I am of the view therefore that, because of that fact, I cannot vary or set aside the

Order to Produce of Deputy President Gooley.

[11]      Having said that, the practical effect of the Commission neither varying nor setting

aside the Order to Produce is that the Respondent is, technically, non-compliant with an Order

of the Commission.

[12]      Even if I was to put that issue aside and take the application of the Respondent filed in

the form of the F1 application as an application for the Commission to, in effect, issue a new

order for the production of documents without the inclusion of the documents detailed in

paragraph 1 of the schedule to the Order to Produce, then my decision would be to decline to

do so.

[13]      My reason for reaching that view is that the concessions made by the Respondent in its

written material are not strong enough to remove from consideration by the Commission

much of the case of the Applicant, and the material sought by the Applicant and identified in

item 1 of the Schedule to the Order to Produce remains relevant to the determination of the

issues to be considered by the Commission.

[2016] FWC 930

[14]      If the Respondent complies with the Order to Produce issued by Deputy President

Gooley the issue of the Applicant seeking access to or making a copy of the contracts will

need to be considered to ensure that the material, if made available to the Applicant, is used

by the Applicant only for the purpose of the unfair dismissal application and that the privacy

of the persons identified as the parties to the contracts is considered.

COMMISSIONER

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