Korean Workers Union

[2017] FWC 1193

[2017] FWC 1193

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(b) RO Act - Application for registration by an association of employees

Korean Workers Union
(D2016/53)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 8 MARCH 2017

Application for registration by an association of employees.

Introduction

[1] On 25 March 2016 an application was lodged in the Fair Work Commission (the Commission) to register the Korean Workers Union (KWU) as an organisation pursuant to Section 18(b) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The application was signed by Mr Young Haln, the President and Sam Haln, the Vice-President of the KWU and was accompanied by a declaration by them dated 20 March 2016, that the application was endorsed in accordance with the KWU’s rules and is made in accordance with the RO Act. Attached are a list of some 59 members and a list of offices together with the relevant details. Also attached is a copy of the resolution passed by the Committee of Management of the KWU on 20 March adopting the rules and resolving that the organisation seek registration as an organisation pursuant to the RO Act.

[3] As well as the President and Vice President, the application named Mr Aron So as General Secretary and Mr Ji Yong Kim as Treasurer.

[4] The proposed eligibility rules of the KWU can be discerned from the following extracts from the relevant rules:

“4 - INDUSTRY

(a) The term “Korean Employer” used hereon in these rules are described as an employer:

(i) generally considered by the local Korean community in which it operates, as a “Korean business” by reason that it is managed or owned by a person or persons of Korean background; or
(ii) which primarily conducts business with the Korean community; or
(iii) that is a corporation incorporated in the Republic of Korea, or is an associated entity of such a corporation as defined in the Corporations Act 2001 (Cth).

(b) The industries covered by the Union will be:

(i) Construction: workers employed by a Korean Employer as carpenters, electrical and gas tradespersons, fire-protection installers, heating and ventilation tradespersons, painters, plasterers, plumbers, sign-writers, tilers, and construction labourers generally;
(ii) Hospitality: where the Korean Employer is a bar, café, restaurant, hotel, motel, pub, resort, serviced apartment, or entertainment venue; and
(iii) Sales and distribution: where the Korean Employer is a retail shop, wholesale distributor, importer, exporter, or other sales business including automotive and real estate sales.

5 - OBJECTS

The Objects of the union shall be:-

(a) To secure the complete representation and effective organisation of persons who are employed by Korean Employers.

(b) Render assistance to workers of Korean Employers, who are unable to deal effectively with employers, other workers, and regulators in relation to their employment rights and obligations due to differences in business customs, culture, and language.

9 – CONDITIONS, ELIGIBILITY AND RIGHTS OF MEMBERS

(a) The common criteria for all persons applying for membership of the Union are:

(i) Be employed by a Korean Employer; and
(ii) Be residing in Australia at the time of application for membership; and
(iii) Have attained the age of 18 years.

. . .

(d) Ordinary Members

(i) All persons who are employed by any employer conducting business in Australia are eligible to apply for ordinary membership.”

[5] The application was notified by publication in the Commonwealth of Australia Gazette on 15 April 2016.

Objections

[6] The following notices of objection were filed:

Name	Date
● United Voice	19 May 2016
● The Australian Workers’ Union (AWU)	19 May 2016
● “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)	19 May 2016
● National Union of Workers (NUW)	20 May 2016
● Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)	19 May 2016
● Australian Municipal Administrative, Clerical and Services Union (ASU)	19 May 2016
● Textile, Clothing & Footwear Union of Australia (TCFUA)	19 May 2016
● Shop Distributive and Allied Employees’ Association (SDA)	19 May 2016
● Construction, Forestry, Mining and Energy Union (CFMEU)	19 May 2016
● Health Services Union(HSU)	19 May 2016
● Maritime Union of Australia (MUA)	19 May 2016
● Australian Industry Group (AIGroup)	19 May 2016
● Australasian Meat Industry Employees Union (AMIEU)	20 June 2016

[7] In the initial proceedings the Australian Council of Trade Unions (ACTU) provided co-ordination for most of the union objectors. Mr T. Clarke appeared for the ACTU.

[8] I note that the Regulatory Compliance Branch of the Commission raised with the KWU in May 2016 some possible difficulties with the application including:

● The application was endorsed by the Committee of Management. The status of the rules and the authority of the Committee of Management to endorse them appeared questionable, given that Rule 6 provides that “supreme authority” is “vested in the members in a general meeting”.

● Uncertainty with respect to the conditions of eligibility.

● That some of the members appeared to be outside the conditions of eligibility.

Relevant Provisions of the RO Act

[9] Section 18B sets out the requirements for an employee association to be registered in the federal system as follows:

“18B Federally registrable employee associations

(1) An association of employees is federally registrable if:

(a) it is a constitutional corporation; or
(b) some or all of its members are federal system employees.

(3) An association of employees is not federally registrable if it has a member who is not one of the following:

(a) an employee;
(b) a person specified in subsection (4);
(c) an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee eligible for membership of the association;
(d) an officer of the association.

(4) The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

(a) are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or
(b) are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or
(c) are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or
(d) are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

(5) An association of employees is not federally registrable if:

(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and
(b) it is not the case that some or all of the association’s members are federal system employees.”

[10] I need to be satisfied that the criteria for registration contained in s.19 have been met and, if so, I must grant the application.

“19 Criteria for registration of associations other than enterprise associations

(1) The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a) the association:

(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and
(ii) is an association for furthering or protecting the interests of its members; and

(b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and
(c) in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and
(d) in the case of an association of employees—the association has at least 50 members who are employees; and
(e) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and
(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and
(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and
(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and
(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and
(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and
(ii) that would more effectively represent those members.

(2) If:

(a) there is an organisation to which the members of the association might belong; and
(b) the members of the association could more conveniently belong to the organisation; and
(c) the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

(3) Without limiting the matters that the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

(4) In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

(5) The FWC must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.”

[11] Section 25 gives authority to the Commission to approve an amendment to the rules of an applicant organisation to comply with the requirements of the Commission, the Act and/or to settle an objection.

“25 Applicant for registration may change its name or alter its rules

(1) The FWC may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the FWC considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or
(b) to remove a ground of objection taken by an objector under the regulations or by the FWC; or
(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and
(b) subject to any further alterations lawfully made.”

Commission Proceedings

[12] The KWU sent to the Commission and the objectors, on 2 June 2016, a document which responded to a number of aspects of the objections and, inter alia, proposed a number of amendments to the rules including the name and eligibility rules. It appears that a further draft of the rules was endorsed by a meeting of the Committee of Management of the KWU on 20 March 2016.

[13] The matter was listed for mention on 17 June 2016. Mr S. Haln represented the KWU as a solicitor as he has resigned as Vice President of the KWU. He was granted permission to appear pursuant to s.596 of the Fair Work Act 2009 (the Act).

[14] A direction was issued on 20 June 2016 that the KWU file and serve any proposed amendments to the application/rules by 8 July 2016. The objectors were directed to respond by 29 July 2016. The parties were generally directed to confer and report back to the Commission on 15 August 2016.

[15] The KWU lodged an application for leave to alter rules on 8 July 2016. A number of amendments were proposed to the rules. With respect to the eligibility rules it is proposed:

● To delete Rule 4(a)(i) and (ii) and substitute the following:

“(i) listed as a business in the online or printed business directories – in current or any past editions – of the “Korean Society of Sydney Australia” and its successors, or the “Korean Society of Victoria Australia” and its successors, or the “Korean Society of Queensland” and its successors (collectively referred hereafter as “Korean society organisations”): or

ii) is a sole trader or partnership where the proprietor or a partner is a member of the above-mentioned Korean society organisations: or

● To expand the industries to be covered in Rule 4(b) as follows and add a new rule 4(c):

“(b) The industries covered by the Union will be:

(i) Construction: workers employed by a Korean Employer as carpenters, electrical and gas tradespersons, fire-protection installers, heating and ventilation tradespersons, painters, plasterers, plumbers, sign-writers, tilers, and construction labourers generally, and the employer operates a business in the construction or maintenance of buildings;

(ii) Hospitality: workers employed in the capacity of providing customer service, house-keeping, property management, property maintenance, or kitchen work, by a Korean Employer operating a bar, café, restaurant, hotel, motel, pub, resort, serviced apartment, or entertainment venue;

(iii) Sales and distribution: workers employed by a Korean Employer as a shop assistant, marketing person, sales person, operation of forklifts and other logistical equipment, management of a store or warehouse, or transportation of goods or other items for delivery by road;

(iv) Cleaning services: workers employed by a Korean Employer primarily to perform the role of a cleaner;

(v) Hair & beauty services: works employed by a Korean Employer as hairdressers, nail technicians, beauticians and massage therapists; and

(vi) Manufacturing: where the Korean Employer is a manufacturer of goods or food products other than fresh primary produce on a farm, and the employee’s primary role involves assembly, or packaging, or processing of goods or food products.

(c) The Union shall also consist of officers and employees of the Union, whether or not they are employed in the industries listed under rule 4(b).”

● In clause 9(a)(i), delete “by a Korean employer” and substitute “in the industries set out in rule 4 above”.

● In clause 9(d)(i), delete “employer” and substitute “Korean employer”.

[16] These changes were endorsed by the KWU Committee of Management at its meeting on 3 July 2016.

[17] The ACTU, on behalf of the union objectors, responded to the application to amend by correspondence dated 29 July 2016. The ACTU, inter-alia:

● Opposed the application to amend.

● Continued to press the unions’ objections.

● Raised a number of issues about organisations, allegedly linked to KWU, which had been incorporated under NSW legislation.

● Suggested that the “technical” aspects of the objections be dealt with first.

[18] The ACTU filed a draft Notice to Produce documents on 12 August 2016.

[19] A further mention took place on 15 August 2016. Ms M. Wilson, of counsel, now appeared for the KWU and Mr W. Friend, of counsel for the ACTU. Both were granted permission to appear pursuant to s.596.

[20] As a result of the 15 August mention, directions were issued for the KWU to respond to the draft notice to produce by 29 August. I also set down a conciliation conference for 15 September, to be chaired by myself.

[21] On 29 August, the KWU responded to the draft notice to produce in writing.

[22] The conciliation conference did not resolve the matter. There was, however, discussion about the possibility of organising and industrial arrangements between the ACTU and the union objectors and those involved in the establishment of the KWU. The discussions were to be continued by Unions NSW convening a meeting of its affiliates to meet with KWU representatives.

[23] The next scheduled report-back on 9 November was postponed at the request of the KWU. The KWU advised that it had forwarded “an outline proposal for a co-operative model” to the ACTU and Unions NSW and was awaiting a response.

[24] On 30 November, the ACTU advised the Commission that it would no longer be playing a direct role in proceedings.

[25] As a result of the conference on 5 December 2016 it was clear that agreement could not be reached. The CFMEU on behalf of the union objectors lodged the Notice to Produce, originally filed by the ACTU. I issued it on 6 December 2016 on the basis that it would be objected to at least partially by the KWU. Directions were issued that the KWU reply to the Order by 16 January. The KWU and the objectors were to file submissions as to how the matter was to proceed by 1 February. The matter was listed for argument on 7 February 2017 in relation to:

(a) the final contents of the Notice to Produce;

(b) when the notice will be returnable;

(c) the future programing of the matter.

The Objectors’ Submissions

[26] The objectors seek the production of the documents in the proposed order. They are extensive and contain 50 items relating to:

● The employment circumstances of the KWU office holders;

● The membership of the KWU;

● Decisions of the KWU relating to its establishment;

● The membership and activities of the Korean Workers’ Association Incorporated, an organisation incorporated under NSW legislation;

● The membership of activities of the Korean Workers’ Union Support Group Incorporated, an organisation also incorporated under NSW legislation.

[27] It is submitted that the Commission should make a decision on the Notice to Produce first. Once the parties have had an opportunity to consider the material, the Commission should then deal with the KWU application to amend the application. All the objectors will oppose the KWU application for leave to amend the application pursuant to s.25(1) of the RO Act.

[28] The CFMEU, United Voice, CEPU and AMIEU lodged written submissions in support of the Notice to Produce. The CFMEU submission contained an item by item explanation as to the relevance of the Notice to Produce.

[29] The material in respect of the two NSW incorporated entities is sought in relation to the possible issue of whether the Applicant is a genuine association acting as an independent organisation in accordance with the RO Act.

[30] In the event that the KWU is granted leave to amend the application, the objectors propose that the substance of the application be dealt with in two stages:

(i) the technical and compliance objection;

(ii) the conveniently belong objections.

KWU Submissions

[31] The KWU had responded to the original ACTU draft Notice to Produce on 29 August 2016, item by item. Generally, it took the point that the Notice to Produce was oppressive. It objected to many items on the ground of relevance. It did however, agree to provide a number of items.

[32] A further written response on 16 January repeated the objections based on relevancy and confidentiality. I confirmed at the hearing, however, that the previously tendered agreements stood.

[33] KWU also supported a staged approach to the further hearing of the matter with the Notice to Produce being dealt with first and then the KWU application for leave to amend the application would be dealt with.

Consideration re Notices to Produce

[34] The Commission’s power to order the production of documents derives from s.590(2)(c) of the Act which provides that the Commission may inform itself:

“. . . by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”

[35] I have considered the Commission’s approach to the issue of such orders contained in cases such as: Re Clerks Alcoa per Munro J Print H2892; Spiteri v O’Brien Glass per Willliams SDP (2001) 109 IR402; AMIEU v Meat and Allied Trades Federation of Australia (1990) 33 IR 431.

[36] A more recent Full Bench in Clermont Coal Pty Ltd and others v Troy Brown and others (2015) FWCFB 2460 summarised the approach as follows:

“[17] The appeal here is brought against interlocutory decisions and orders. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies.

[18]The second and third propositions advanced by the appellants may be disposed of at the outset. In response to the second proposition, the respondents undertook that they would not call on the production of the documents referred to in order 1 of the First Order and the Second Order insofar as they did not pertain to the period 1 September 2014 to 30 November 2014. In response to the third proposition, the respondents accepted that the “policies” referred to in orders 6 and 7 of the Third Order and the Fourth Order were policies in the nature of documents generally available to employees for the purpose of providing guidance on decision-making, and undertook not to call on the production of “policies” under those orders which did not meet that description. We consider that those undertakings remove any utility in granting permission to appeal on the basis of the appellants’ second and third propositions, irrespective of the merits of those propositions. The public interest will not be attracted in respect of an appeal which has no practical utility.

[19]The first, and primary, proposition advanced by the appellants in support of its application for permission to appeal rests on a misconceived approach as to the assessment of the relevance of documents for which an interlocutory order for production is sought. The test is whether the documents sought have an apparent relevance to the issues in the proceedings. Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission. The challenged orders clearly satisfy that test. The applicants in the unfair dismissal applications contend (among other things) that, for the purposes of s.389(2), it was reasonable for them to be redeployed to perform work currently done by contractors. Any documents which would be likely to demonstrate that, during the relevant period, there was work being performed by contractors which could be performed by the applicants would be of apparent relevance to that issue in the case.

[20]That Clermont Coal Operations Pty Ltd intends to argue at the hearing that s.389(2) does not permit the consideration of redeployment to work performed by contractors does not alter the position. The consideration of relevance in relation to an application for an order for the production of documents does not require the advance determination of a contested issue in the matter, with relevance then to be assessed on the basis of that determination. To adopt the approach advanced by the appellants would have the undesirable effect of making an interlocutory hearing concerning production of documents a forum for the resolution of the major issues in contest in the proceedings. The position might be different if a party seeks the production of documents to support a case which is not reasonably arguable. However, it was not suggested by the appellants that the applicants’ case fell into this category. We were not taken to any decision in which the issue in contest has been determined. It remains an issue which will require resolution at the hearing.

[21]No issue of the Commission’s power is involved here. The power of the Commission under s.590(1) to “inform itself in relation to any matter before it in such manner as it considers appropriate”, which under s.590(2)(c) includes requiring the production of copies of documents and records to the Commission, is expressed in very broad terms. The Deputy President clearly had power to make the orders the subject of this appeal.

[22]As to the fourth proposition concerning “fishing”, the Deputy President made an evaluative judgment about this issue. In the absence of any contention that compliance with the orders for production would be oppressive, we do not consider that the public interest would require any revisitation of this issue even if there was an arguable case of error.

[23]In relation to the fifth proposition, this Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced. It is not clear to us why compliance with the relevant orders will require documents of that nature to be disclosed. If, after the orders are complied with, a view crystallises on the part of any of the appellants that any of the documents produced would disclose internal deliberations as to industrial strategy or policy, they may, consistent with what was stated by the Deputy President in her decisions, apply to the Member hearing the substantive proceedings for orders to be made to impose appropriate limitations on access to the documents (including, for example, the redaction of documents). If the documents ultimately find their way into evidence, a party may apply to the Member for confidentiality orders under ss.593 or 594 of the FW Act. If any such application was made, we do not consider that the Member, who would have the capacity to inspect the particular documents in question, would be in any way bound by the view expressed by the Deputy President in paragraph [27] of the First Decision (or by any view we have expressed). In those circumstances, there does not appear to us to be any utility in granting permission to appeal in respect of this issue, taking into account that it was not suggested that the applicants sought the production of the relevant documents for any collateral or improper purpose.

[24]Having considered all of the matters raised by the appellants, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal. Alternatively, even if s.400(1) is not applicable to this case, we are not satisfied that the appellants have advanced any discretionary ground which would justify the grant of permission to appeal.”

[37] I have also had regard to the following summary set out by Commissioner Jones in Australian Nursing Federation v Victorian Hospitals Industrial Association[2011] FWA 8756:

“An exposition of the principles with particular focus on issues of confidentiality is contained in the decision of His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty . In McIlwain v Ramsey Food Packaging Pty Ltd and others, Justice Greenwood summarised the principles which govern the courts in relation to discovery and subpoena to produce documents. I have had regard to this summary, so far as it concerns subpoena to produce documents in considering this Application. Removing those aspects of the summary dealing with discovery, the relevant principles identified by Greenwood J relevant to these proceedings are:

a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins (unreported, O’Loughlin J, 1 August 1997).
. . .
d) The documents for production must be identified with reasonable particularity. (The Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ). The category of documents must not be so wide as to be oppressive.

e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright(1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris[1920] 1 KB 659, 666).

f) 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. In Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:

"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue that may also be a practical factor to be weighed."

g) The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34] in requiring the existence of a legitimate forensic purpose for the production of documents.

h) In Trade Practices Commission v Arnotts Limited(No. 2)(1989) 21 FCR 306, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?

i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation[1997] FCA 1504 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.

j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.

k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay [34].

l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia[1998] FCA 497.

m) 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’. (Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] FCA 510; [2005] 216 ALR 147, [12].

n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541.

o) In Dorajay Pty Limited v. Aristocrat Leisure Limited[2005] FCA 588 at paragraph [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries Ltd[1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v. Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at paragraph [18]:

"These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at p.11] in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive."

[38] The draft Notice to Produce is broad in its scope and quite detailed in the information that it seeks. On the other hand, this is an unusual application for registration of an organisation. It has attracted a range of union objectors. It is apparent that it may be the subject of lengthy and contentious proceedings. The Commission will be assisted by the early provision of relevant information. Given that the objectors intend to challenge a range of technical aspects of the matters relating to the establishment of the KWU, the status of its office holders and the membership of the KWU, I have taken what I consider a flexible approach to the Notice to Produce.

[39] Some aspects do not appear to be relevant and infringe upon legitimate privacy aspects. For example, I have deleted the requirements for office holders to provide payslips.

[40] Where the KWU says that the relevant document does not exist, it should formally say so in answering the Notice to Produce.

[41] It is reasonable, in my view, for the KWU to disclose its membership so that it can demonstrate compliance with the RO Act. It is appropriate however, that this information only be disclosed for the purpose of these proceedings and that the representatives of the objectors ensure that their organisation not contacts them for organising or related purposes. An order containing this restriction will be issued with this decision.

[42] Finally, I consider that information in relation to the two NSW incorporated entity be disclosed. However, I do not think it relevant to the application for names to be disclosed and such disclosure may lead to an inappropriate breach of privacy. Names have therefore been redacted where applicable.

Conclusion

[43] At the 7 February 2017 hearing, there was agreement between the parties as to the next steps in the hearing of this matter. It was for me to determine the contents of the Notice to Produce and the timetable.

[44] This decision is more detailed than I envisaged but I thought it necessary to set out the history of this matter so far and the reasons for my decision on the Notice to Produce.

[45] An amended Notice to Produce directed to the KWU is issued together with this decision. It is returnable on Friday, 24 March 2017.

[46] I have then allowed a period of two weeks for the objectors to consider this material.

[47] The KWU will be required to file and serve its application to amend the proposed rules by Close of Business Friday, 7 April 2017. This will be accompanied by any additional submissions/evidence that the KWU relies on. The Commission recommends that the application be endorsed by a KWU general meeting of members.

[48] The objectors will be required to file and serve any additional submissions/evidence that they rely on by Close of Business Tuesday, 18 April 2017.

[49] The application for leave to amend will be listed for hearing on Thursday, 27 April 2017.

[50] A confidentiality order with respect to membership of the KWU follows:

Confidentiality Order

1. That any information with respect to the membership of the Korean Workers’ Union is to be disclosed only for the purpose of the proceedings arising from the application for registration.

2. The membership information is to be only made available to the objectors’ representatives in the proceedings and not to other officials of the objector unions.

3. No contact is to be made by the objector unions with Korean Workers’ Union members for organising or other purposes.

DEPUTY PRESIDENT

Appearances:

M. Wilson of counsel with S. Haln for the Applicant;

W. Friend of counsel, T. Clarke for the ACTU and M. Morey for Unions NSW;

P. Boncardo for CFMEU;

J. Nucifora for the ASU;

L. Svendsen for the HSU;

B. Govind and S. Burnley for the SDA;

A. Neal, A. Jacka, and H. Greene for the MUA

J. Lavelle-Wilson and S. Howe for the AMWU

K. Roger for the AMIEU;

M. Robson and S. Bull for UV;

V. Wiles for the TCFUA;

A. Ambihaipahar for the CEPU;

V. Paul for AIG;

Hearing details:

2016

Sydney:

June 17;

August 15;

September 15 (conciliation conference);

December 5 (conciliation conference).

2017

Sydney:

February 7.

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