Maritime Union of Australia, The v GrainCorp Operations Limited T/A GrainCorp

[2017] FWC 2525

[2017] FWC 2525

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Maritime Union of Australia, The
v
GrainCorp Operations Limited T/A GrainCorp
(B2017/307)

DEPUTY PRESIDENT ASBURY MELBOURNE, 9 MAY 2017

Objection to Orders requiring production of documents to Fair Work Commission

[1] At a hearing on 8 May 2017, I decided to issue an order for the production of documents with respect to an application by the Maritime Union of Australia (MUA) for a bargaining order. The MUA’s application for a bargaining order relates to negotiations for a proposed enterprise agreement between GrainCorp Operations Ltd (GrainCorp) and the Australian Workers’ Union (AWU). The MUA asserts in its application for a bargaining order that it is entitled under its rules to represent employees of GrainCorp who are members of the MUA and who will be covered by the proposed agreement and that it has members.

[2] The MUA seeks a bargaining order that GrainCorp recognise and bargaining with the MUA. The application for a bargaining order is opposed by GrainCorp and the AWU. The AWU was granted permission to be heard in relation to the MUA application for a bargaining order and to fully participate in the hearing of that application.

[3] The background to the present issue can be briefly stated. On 1 May 2017, on application by the MUA, I issued an order (the first order) requiring the AWU to produce documents identifying the financial members of the Union and its Queensland Branch, currently employed by GrainCorp at port grain terminals in the State of Queensland. The AWU objected to the production of the documents required by the first order on a number of grounds including relevance and the confidentiality with respect to private details of its members. GrainCorp supported the AWU in its objection.

[4] The time for compliance with the first order was deferred and Directions were issued for the parties to file and serve submissions in relation to the issue of whether the AWU should be required to produce the documents. The matter was listed for hearing on 8 May 2017. The AWU maintained its opposition to the first order for production of documents and GrainCorp maintained its support for the AWU position. The AWU raised an additional ground of objection, asserting that the compliance with the first order requiring it to produce details of its membership would result in the Union disclosing its industrial strength to GrainCorp and could adversely impact the AWU in negotiations with GrainCorp for the proposed enterprise agreement.

[5] After hearing from the parties I decided that I would rescind the first order and issue a further order to address some of the concerns advanced by the AWU, subject to certain undertakings being given in writing by Counsel for the MUA who was not available for the hearing. My reasons for doing so are as follows:

[6] The principles relevant to the question of whether an order for the production of documents should be made were summarised by Commissioner Spencer as follows in BHP Coal Pty Ltd 1:

“The following principles are relevant:

1. The documents for production must be identified with reasonable particularity;

2. The category of documents must not be so wide as to be oppressive;

3. The material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings. The adjectival relevance looks towards the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings (cf Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90);

4. 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 the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case, or to investigate the character of the opposing party’s evidence;

5. 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 apparent potential relevance to the pleadings as they stand;

6. There must be a legitimate forensic purpose for the production of documents;

7. A subpoena should not be issued 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;

8. 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;

9. The issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.”

[7] In the present case, GrainCorp and the AWU contend that the AWU has the exclusive right to represent employees who will be covered by the proposed agreement, on the basis of the AWU’s rules and a series of demarcation agreements with the MUA and determinations of the Commission. In the alternative, it is contended that as a matter of discretion, the Commission should not make the bargaining order sought by the MUA on the basis of historical coverage by the AWU.
[8] If the primary contention of the AWU is upheld, a bargaining order cannot be made on the basis that the MUA cannot be a bargaining representative for the proposed agreement and has no standing to make an application for a bargaining order it relation to the proposed agreement. If the primary contention of the AWU is not upheld, then the Commission is required to consider – among other matters – whether it is reasonable in all the circumstances to make the order.

[9] I am of the view that the issue of the respective membership numbers of the AWU and the MUA is relevant to whether discretion to make a bargaining order should be exercised, in the event that GrainCorp and the AWU do not succeed with their primary argument.

[10] The further order to produce is issued subject to:

• A note being included in the further order to the effect that it does not require disclosure of information within the documents that is private or commercially sensitive or confidential, save for the workplace and financial status of the members within the AWU or the AWUQ and such excluded information may be redacted;



• The documents are to be produced to the Fair Work Commission and will be made available at the premises of the Commission for viewing by Counsel for the MUA in this matter;



• Counsel for the MUA providing an undertaking that he will not disclose the actual number of AWU or AWUQ members to the MUA and will only disclose whether the AWUQ has more or less members than the MUA; and



• The MUA providing an undertaking that if the MUA intends to make a submission to the Commission on the basis of information contained in the documents that identifies the actual number of members of the AWU or the AWUQ who will be covered by the proposed agreement, then the MUA will provide notice to the AWU of the MUA’s intention in this regard in writing, by 9.00 am on Thursday 11 May 2017.

[11] Any issues of whether the information should be disclosed to GrainCorp, the manner and conditions of the disclosure and the confidentiality of the information, will be dealt with during the hearing of the substantive application on 11 and 12 May 2017.

DEPUTY PRESIDENT

Appearances:

Mr D. Greene on behalf of the MUA.

Mr S. Crawford of Crawford de Carne Lawyers on behalf of the AWU.

Mr D. Lloyd of Ashurst on behalf of Graincorp.

Hearing details:

2017.

8 May.

 1   Mr Luke Faulker v BHP Coal Pty Ltd and Mr Shannon Boal v BHP Coal Pty Ltd [2014] FWC 5134 at [18]

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