Maryborough Christian Education Foundation T/A Riverside Christian College

[2019] FWC 7938

[2019] FWC 7938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Maryborough Christian Education Foundation T/A Riverside Christian College
(AG2019/3099)

COMMISSIONER BOOTH BRISBANE, 22 NOVEMBER 2019

Application for termination of the Riverside Christian College Collective Enterprise Agreement 2018 – application for Order for Production of Documents – application granted on different terms.

[1] This procedural decision arises from the application by Maryborough Christian Education Foundation T/A Riverside Christian College (the College) under s.222 of the Fair Work Act 2009 (the Act), seeking approval for the termination of the Riverside Christian College Collective Enterprise Agreement 2018 (the Agreement).

[2] The termination of the Agreement is opposed by the Independent Education Union of Australia (the Union/IEUA) who are covered by the Agreement.

[3] The College has applied under s.590(2)(c) of the Act for an order requiring production of the following:

1. a list of members of the IEUA employed at the College.

[4] This decision deals with this procedural application. Given the hearing of the matter is scheduled for 10 December 2019 this decision has been produced quickly and is relatively brief so as not to delay the arbitration.

[5] The relevant principles have been set out in the decision of Australian Nursing Federation v Victorian Hospitals’ Industrial Association: 1

“[7] The power to require the provision of copies of documents, records or other information has, under earlier legislative schemes, been expressed as a power to summons and compel the production of documents.

[8] Section 111(1)(s) of the Workplace Relations Act 1996, as it stood prior to 26 March 2006. provided the Commission with the power to:

“(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute;”

[9] I am satisfied that the jurisprudence in relation to the power of predecessors of Fair Work Australia to issue summons is applicable to the power under s.590(2)(c) of the Act.

[10] The power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts.

[11] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation,Justice Mason, as he then was, discussed the use of the discretion to issue a summons and said:

“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.”

[12] The principles applied by the Courts in the exercise of the discretionary power to issue a summons were identified by: Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:

“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.””

(Emphasis added)

The College’s Case

[6] Mr Dearden submitted that identifying the number of employees who are members of the IEUA is probative of the issue to be decided at the substantive hearing. He drew the Commission’s attention to s.223(d) of the Act. It provides that in deciding whether to approve the termination of an enterprise agreement, one of the factors the Commission must take into consideration is as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

…

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation … covered by the agreement.”

[7] It is the College’s case that identification of employees who are members of the IEUA is relevant information that will assist the Commission in exercising its discretion as to whether it is appropriate to approve the termination taking into account the views of the union

The Union’s Case

[8] The Union indicated it opposed providing either members’ names or numbers of members to the College. 2 It was however prepared to provide membership details to the Commission, but would not agree to the details being forwarded to the College.

[9] In these circumstances, I expressed my view that the offer made by the Union did not satisfy the Order to Produce and formed the view that the provision of the documents to the Commission and not to the Applicant would not satisfy the requirements of procedural fairness.

[10] As to the reasons for objecting to the provision of members’ names and numbers to the College, Mr Spriggs submitted that the numbers of his members is not relevant or necessary for the Commission to decide whether to terminate the Agreement.

[11] Mr Spriggs cited the decision of Commissioner Bissett in Reserve Support Services Pty Limited T/A Reserve Support Services, 3 where the Commissioner, in my view, properly described the role of the Commission as follows:

“The task before the Commission is independent of who may have made the application and whether it is supported by multiple parties or supported by some and opposed by others. The rigour required to be applied to the tasks does not change…. It is, after all the Commission that must be satisfied that the requirements of the FW Act have been met.” 4

[12] Mr Spriggs considered that the Commission is required to be satisfied of the requirements of the Act; and the Act does not require the membership details sought.

[13] As to both the provision of the names and numbers of members, Mr Spriggs emphasised particular opposition to naming individual members. He raised the issue of victimisation, where in some classifications there are only one or two employees.

The College’s Response

[14] Mr Dearden strongly rejected that there would be any victimisation of employees.

Consideration

[15] The starting point in deciding whether to grant or refuse an application for production of documents is that the Commission will exercise its discretion in favour of the Applicant unless it appears it would be vexatious, frivolous, or otherwise an abuse of process.

[16] However the documents sought must be capable of being relevant to an issue that might legitimately arise at the hearing of the matter in dispute.

[17] The College submits that the names of members are relevant as to whether it is appropriate to approve the termination.

[18] The Union submits that in the substantive application, the Commission must be satisfied that the requirements of the Act have been met, independent of the matters the subject of this notice to produce.

[19] It is the case that that the names or even the numbers of members are not matters that are required to decide the substantive application. However that is not the test, it is that the documents sought must be of a nature capable of being relevant to an issue which might legitimately arise at the hearing of the matter. In other words while details of membership of an employee organisation will not be decisive of this substantive application, they are nevertheless capable of being relevant to the issue of the discretion as to whether it is appropriate to approve the termination taking into account the views of the employee organisation covered by the Agreement. For this reason, I intend to make an order in favour of the Applicant.

[20] I turn now to the particular order. The order currently seeks a list of members of the IEUA employed at the College.

[21] While Mr Spriggs indicated objection to any order, his strongest objection was for the names of members. He raises some issues around victimisation which were rejected by the College.

[22] There is nothing before the Tribunal to suggest that any victimisation of Union members has occurred. However, the nature of that membership, and the names of members are not relevant to the discretion required to be exercised under s.233. This is because the Union either represents an employee of the College (whatever their job) or it does not. That some of those employees are teachers or administrators is of no relevance to the matters required to be determined in deciding this application.

[23] I therefore intend to make an order that the IEUA provide the total number of its members employed at the College. The relevant date for identifying members is 8 August 2019, which is the date of the vote for the termination of the Agreement.

[24] An Order will issue accordingly.

COMMISSIONER

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 1   [2011] FWA 8756.

 2   Mr Spriggs at the hearing indicated the Union was prepared to provide member names to the Commission but not to the College.

 3   [2019] FWC 6519.

 4   Reserve Support Services Pty Limited T/A Reserve Support Services [2019] FWC 6519 at [44].