Michael Alkan t/a Hr Experts v The Traffic Controllers Pty Ltd

[2019] FWC 8311

[2019] FWC 8311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Michael Alkan t/a HR Experts
v
The Traffic Controllers Pty Ltd
(C2019/7367)

VICE PRESIDENT HATCHER SYDNEY, 6 DECEMBER 2019

Appeal against orders to produce documents by Deputy President Cross at Sydney on 27 November 2019 in matter numbers U2019/11864 and U2019/11861 – Stay decision.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 6 December 2019.

[2] Michael Alkan, an industrial relations consultant and advisor who trades as HR Experts, has lodged an appeal, for which permission to appeal is required, against a decision made by Deputy President Cross on 27 November 2019 to issue two orders for HR Experts to produce documents pursuant to s 590(2)(c) of the Fair Work Act 2009 (FW Act). In his notice of appeal, he seeks a partial stay of the orders pending the hearing and determination of his appeal. This decision concern his stay application.

[3] The background to the matter is that Mr Matthew Priestly and Mr Truman Te Kani have applied for an unfair dismissal remedy against their former employer, The Traffic Controllers Pty Ltd (Traffic Controllers). Mr Alkan filed the applications on behalf of Mr Priestly and Mr Te Kani and appears to have given prior advice to them about their matters.

[4] In the proceedings before the Deputy President, who has carriage of the unfair dismissal remedy applications, there is an initial issue about whether Mr Priestly and Mr Te Kani were dismissed within the meaning of s 386 of the FW Act. That preliminary jurisdictional issue is listed for hearing before the Deputy President next Monday, 9 December 2019. Mr Priestly and Mr Te Kani have applied for permission to be represented by Mr Alkan at that hearing. That application has not yet been determined.

[5] In the proceedings before the Deputy President, in connection with the preliminary jurisdictional question, Traffic Controllers applied for and was granted orders for the production of documents (being the order the subject of the appeal). The orders each sought two categories of documents:

1. Signed service agreement provided to Mr Matthew Priestly/Mr Truman Te Kani by HR Experts.

2. Email correspondence(s) between Mr Matthew Priestly/Mr Truman Te Kani and Mr Michael Alkan from HR Experts.

[6] The orders require the production of the documents by 12.00pm 6 December 2019. I am informed by Mr Alkan that in respect of the first category of documents in the schedule to the orders, he does not intend to produce any documents on the basis that no such documents exist. I note that that proposition is strongly contested by Traffic Controllers, but on that basis no stay of the orders in respect of the first category of documents in the schedule is sought by Mr Alkan. The stay is sought in respect of the second category of documents in the schedule to each of the orders.

[7] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 1 There are two criteria for the grant of a stay. First, the Commission must be satisfied that there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal. Second, the balance of convenience must positively weigh in favour of the grant of a stay.

[8] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success such as to meet the first criterion, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity properly to peruse the case materials. 2

[9] In this case, having regard to the submissions of Mr Alkan, I am satisfied that insofar as the second category of documents in the schedule to each of the orders is concerned, he has an arguable case with reasonable prospects of success, both in relation to permission to appeal and the merits of the appeal. I consider that the appeal is seriously arguable in at least two respects It is arguably an inappropriate exercise of the Commission’s jurisdiction pursuant to s 590(2)(c) to require a paid agent who is providing industrial relations advice and representation to an applicant to produce documents which will disclose the advice which has been given to the applicant by their representative. In this case, it is a proposition that I consider to be arguable that an analogue to the privilege which applies to dealings between a lawyer and their client should be applied in this case. The second proposition which I consider to be reasonably arguable is that the orders represent a fishing expedition, in that this is not a case where the respondent has identified a particular document which it knows exists which will assist its case. Rather it appears to me that what Traffic Controllers is doing via these orders is looking for documents which may or may not exist and which may or may not support its case, and that is arguably a fishing expedition.

[10] As to the balance of convenience, I consider the balance of convenience favours the grant of a stay. If the stay is not granted, Mr Alkan will be required to produce the documents to the Commission on 6 December 2019 (today) and if the Deputy President decides they should be disclosed to Traffic Controllers at the hearing on 9 December 2019, then that will be done at that time. Any advice contained in the correspondence will be immediately disclosed to Traffic Controllers, and any ultimate decision of a Full Bench in the appeal would not be able to reverse that situation. I also note Traffic Controllers’ very honest concession that without the documents they would still be able to sustain their case as to the jurisdictional objection.

[11] Accordingly, I grant the stay in respect of the second category of documents in the schedule to each of the orders for production. The order 3 will operate until the hearing and determination of the appeal.

VICE PRESIDENT

Appearances:

Mr M Alkan on his own behalf.

Mr R Bdeir on behalf of The Traffic Controllers Pty Ltd.

Hearing details:

2019.

Sydney (in chambers via telephone):

6 December.

Printed by authority of the Commonwealth Government Printer

<PR714967>

 1 [2000] AIRC 785, Print S2639

 2  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 3   PR71439