Mr Andrew Staniforth v Qantas Airways Ltd t/a Qantas Airways
[2018] FWC 934
•16 FEBRUARY 2018
| [2018] FWC 934 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 739 - Application to deal with a dispute
Mr Andrew Staniforth
v
Qantas Airways Ltd t/a Qantas Airways
(C2017/5484)
| DEPUTY PRESIDENT SAMS | SYDNEY, 16 FEBRUARY 2018 |
Alleged dispute about matters arising under an enterprise agreement – former Qantas Customer Service Manager – dispute concerning ‘bank of hours’ – jurisdictional objections – whether dispute is about a matter arising under the Agreement – whether applicant has standing – whether dispute is outside scope of Agreement – Orders for Production – evidence and submissions filed – existing material sufficient to determine jurisdictional objections – Orders for Production set aside – further proceedings.
INTRODUCTION
Mr Andrew Staniforth is the former Secretary of the Flight Attendants’ Association of Australia (‘FAAA’ or the ‘Association’). During his tenure as secretary, Mr Staniforth was also employed by Qantas Airways Limited. However, on 17 September 2017, his employment with Qantas ended when he accepted voluntary redundancy from his position as Customer Service Manager. On 5 October 2017, Mr Staniforth filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), which seeks to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure of the Flight Attendants’ Association of Australia – Short Haul Division (Qantas Airways Ltd) Enterprise Agreemant No 8 (‘EBA8’). For present purposes, it is unnecessary to set out the details of the dispute, although I would observe it is not without some complexity. Shortly stated, the dispute concerns the arrangements Mr Staniforth had with Qantas when he was employed as a Flight Attendant at the same time as he was performing Union duties for the FAAA. These longstanding arrangements are governed by an agreement between the Association and Qantas where employees are required to undertake duties for the Union while remaining on active duty for Qantas.
The substantive dispute has been the subject of conciliation conferences convened by the Commission and proceedings in the Federal Court of Australia, concerning Mr Staniforth’s employment with the FAAA which ended when he was dismissed by the Association’s National Council. During the Commission’s conferences, and notwithstanding Mr Staniforth’s objections that the Association was not involved in his dispute with Qantas, the Association was granted permission to participate in the conference as the Commission was satisfied that the Association had a legitimate interest in the proceedings. There has been no settlement of the dispute. Accordingly, the Commission issued directions on 1 December 2017 for the hearing of Qantas’ jurisdictional objections to the application on 1 and 2 March 2018. Those directions have been complied with by both parties.
However, on 1 February 2018, Mr Staniforth filed two applications for Orders of Production of documents said to be necessary for the purposes of his case in defending the jurisdictional foundation of his dispute. The first Order for Production was directed to Qantas and sought the following documents:
1. All agreements, file notes of discussions, correspondence and emails from 22 July 2016 to 31 August 2016 (inclusive) in relation to the “agreed arrangement” reached with the Respondent regarding the Applicant’s roster adjustments - bid to full time hours with agreed weekday removal of hours to support an ongoing part time flying roster - and corresponding remuneration between Helen Gray (Head of Domestic Cabin Crew, Lounges and Product & Service Delivery, QANTAS Airways Limited) and John Playford (Director of Industrial Relations, FAAA National Division).
2. All emails, discussion notes, roster system notations from 9 August 2016 to 10 August 2016 (inclusive) between Elen Burt (Industrial Relations Specialist) and Markus Chai (Manager Domestic Operations Workforce Planning) of QANTAS Airways Limited, following email sent by the Applicant on 9 August 2016 requesting removal of duties to Markus Chai.
3. All file notes of discussions, correspondence and emails from 29 June 2017 to 29 August 2017 between Elen Burt (Industrial Relations Specialist) / Melinda Widjaja (Principal Planning Analyst) of QANTAS Airways Limited and Shane Scanlon (President, FAAA National Division) / John Playford (Director of Industrial Relations, FAAA National Division) in relation to meetings held in the first two weeks of July 2017 regarding allocation of Bank of Days (EBA9 Part B Clause 78) to the Applicant’s rosters.
4. Finalised, signed correspondence relating to EBA9 Part B Clause 78 Bank of Days arrangements originally reached in-principle on 28 November 2016 between Elen Burt, (Industrial Relations Specialist, QANTAS Airways Limited) and John Playford (Director of Industrial Relations, FAAA National Division) and the Applicant.
The second Order for Production was directed to the Association and sought the following documents:
- All agreements, file notes of discussions, correspondence and emails from 22 July 2016 to 31 August 2016 (inclusive) in relation to the “agreed arrangement” reached with the Respondent regarding the Applicant’s roster adjustments - bid to full time hours with agreed weekday removal of hours to support an ongoing part time flying roster - and corresponding remuneration between Helen Gray (Head of Domestic Cabin Crew, Lounges and Product & Service Delivery, QANTAS Airways Limited) and John Playford (Director of Industrial Relations, FAAA National Division), confirmed by email dated 22 August 2017 3:22 PM AEST from Gemma Henry on behalf of John Playford to the Applicant.
- All file notes of discussions, correspondence and emails from 1 May 2017 to 29 August 2017 between Gemma Henry, President (Industrial Relations Manager), Shane Scanlon (President & Acting Industrial Relations Manager), John Playford (Director of Industrial Relations), Neil Rao/Angela McManus (QANTAS Airways National Councillors) of the FAAA National Division and QANTAS Management and staff Elen Burt (Industrial Relations Specialist), Ashley Stephenson (Head of Domestic Cabin Crew and Lounges), Melinda Widjaja (Principal Planning Analyst) and/or Short Haul Allocations Staff regarding allocation of Bank of Days (EBA9 Part B Clause 78) to the Applicant’s rosters.
- All file notes of discussions, correspondence and emails from 29 June 2017 to 29 August 2017 between Elen Burt (Industrial Relations Specialist) / Melinda Widjaja (Principal Planning Analyst) of QANTAS Airways Limited and Shane Scanlon (President, FAAA National Division) / John Playford (Director of Industrial Relations, FAAA National Division) in relation to meetings held in the first two weeks of July 2017 regarding allocation of Bank of Days (EBA9 Part B Clause 78) to the Applicant’s rosters.
Upon advice of the filing of the Notices to Produce both Qantas and the Association opposed the orders sought by Mr Staniforth. In the result, the Commission listed the applications for telephone hearing on 9 February 2018. At the hearing, Mr Chris Worthy National Division Councillor of the Association appeared for Mr Staniforth, Ms Kathy Srdanovic, Solicitor (Ashurst Australia) sought to permission to represent Qantas and Mr Hayward, Solicitor, sought permission to represent the Association. As both Qantas and the Association had been previously granted permission to be legally represented, pursuant to s 596 of the Act, there was no basis for me to reconsider the earlier grant of permission. However, for abundant caution, I am satisfied the matter is of significant complexity and would be conducted more efficiently, if permission to be represented by lawyers, was continued for Qantas and the Association.
SUBMISSIONS
For the applicant
Mr Staniforth set out the reasons for seeking the documents in his application. As the reasons are relevantly similar, I set out those reasons in the application directed to Qantas as follows:
a) Evidence contained in the document/s listed in this Application at section 1.1.1 and 1.1.2 above will assist Deputy President Sams in deciding that this matter is between the Applicant and the Respondent, and is a dispute about the Applicant’s arrangements for hours of part time work with the Respondent and corresponding remuneration agreed to be varied from the Applicant’s pre-existing employment conditions of permanent part time medium Customer Service Manager. The relevance of the document/s sought will provide evidence that negotiations or discussions adjusting the Applicant’s rostered hours of work, progressed to a final agreed arrangement, following the two options proposed (neither of which options were mutually accepted or actioned by both the Applicant and the Respondent) in the Respondent’s letter dated 22 July 2016. The final agreed arrangement included: building the Applicant’s roster to full time hours, agreed removal/release of nominated flying duties within each roster and pro-rated full time remuneration to be paid by the Respondent to the Applicant for the actual flying duties performed.
b) Evidence contained in the document/s listed in this Application at section 1.1.3 and 1.1.4 above will assist Deputy President Sams in deciding that this matter is between the Applicant and the Respondent, and is a dispute arising over a provision of Flight Attendants' Association of Australia – Short Haul Division (Qantas Airways Limited) Enterprise Agreement 9 (EBA9) – Part B Clause 78 – as a result of managerial action by the Respondent outside the scope of Clause 78, relevant Facilitative Agreement reached and applicable to EBA9 Part B Clause 78, and the final agreed arrangements listed in section 1.2(a) above. The relevance of the document/s sought will provide evidence that this dispute does arise over provision/s of EBA9 between the Respondent and the Applicant as its employee.
In oral submissions, Mr Worthy submitted that the documents are necessary as they are relevant to the jurisdictional objections. Qantas had mischaracterised the dispute by describing it as involving parties, other than Mr Staniforth and Qantas, and Qantas has not cooperated in providing the relevant documents to prove otherwise. Mr Worthy criticised Mr Hayward’s late objection to the Orders for Production.
For Qantas
Ms Srdanovic submitted that it was neither appropriate or necessary to produce the documents to prove an evidentiary case of whether there was some side agreement between Qantas and the Association concerning a ‘bank of hours’. She submitted there is sufficient material now available to determine the jurisdictional objections. There is evidence of Mr Stephenson directly relevant to the side agreement Mr Worthy referred to; see: Annexure AS1 to Mr Stephenson’s statement. However, this is not the only issue to be determined. Ms Srdanovic said there is a case as to Mr Staniforth’s lack of standing to bring this dispute. Further, the statement of Mr Stephenson establishes that the issues raised with him before Mr Staniforth left employment, are different to those he now agitates in the dispute notification he lodged when he was no longer employed by Qantas.
For the Association
Mr Hayward said that Mr Staniforth is not, and was not an employee at the relevant time in respect to filing this dispute. If he overcomes the jurisdictional objections, the documents he seeks may become relevant to his substantive dispute.
In reply, Mr Worthy put that Mr Staniforth was an employee at the time of his raising the dispute with Qantas and was entitled to have an active dispute resolved by the Commission; see: ING Administrators v Jajoo PR974301. The documents sought are the final pieces of evidence as to the side agreement between Qantas and the Association.
CONSIDERATION
Applicable Principles
The powers of the Commission to order the production of documents is generally accepted as deriving from s 590(2) of the Act. That subsection reads:
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
There is a helpful summary of the principles applicable when the Commission is considering objections to Orders for Production, in Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756. There, Jones C (as she then was) summarised in great detail the principles and authorities and I intend to apply them to my consideration in this case. At paras [10] to [14], the Commissioner said:
[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.”
[13] 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 reciting 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] FCA 248; (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."
In determining whether to order the production of documents sought by Mr Staniforth, I have had the benefit of reviewing the outlines of submissions, Qantas’s reply submissions, and the witness statements of Mr Staniforth and Mr Ashley Stephenson, Head of Domestic Cabin Crew and Lounges, Customer Operations, Qantas. In other words, the evidentiary cases of both parties has been filed and served in full. I note no submission or evidence has been filed by the Association. Relevantly, Qantas’ jurisdictional challenge is made on three bases:
There can be no dispute over a matter contained in an enterprise agreement which has been replaced;
Mr Staniforth lacks standing to notify a dispute to the Commission; and
The dispute is outside the scope of cl 6.1 of the EBA No 9.
Determining jurisdictional objections of this kind will necessarily involve an analysis of the terms of the relevant enterprise agreement in the context of the particular facts and circumstances of the alleged dispute between the parties. An important component of this analysis is for the Commission to properly characterise the dispute under consideration. In Seven Network (Operations) Limited re CPSU, the Community and Public Sector Union v Seven Network (Operations) Limited re Seven Network (Operations) Limited Enterprise Agreement 2000 - PR933766 [2003] AIRC 757, Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said in respect to jurisdictional determinations of disputes:
[32] In this case, it is a requirement of the clause in the Agreement which empowers the Commission to settle disputes that the dispute be "over the application of the Agreement". That is, clause 16.2 not only refers to s.170LW of the Act, but also itself specifies those disputes which the Commission is empowered to settle as "disputes over the application of the Agreement". It is common ground between the parties that to determine whether a dispute is over the application of the agreement requires a finding which characterises the dispute. This requires a finding as to jurisdictional fact. The first issue on appeal which the Full Bench must be concerned with is whether a dispute existed, on the evidence, over the application of the agreement. There is a need to characterise the dispute and then to decide whether the dispute, thus characterised, has nexus or sufficient nexus to the provisions of the agreement itself. If a dispute is found to exist over the application of the agreement, the terms of any arising order must be reasonably incidental to the application of the agreement to which the dispute relates.
See also: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited PR940366 at [45].
The parties here rely on the evidence of Mr Staniforth on the one hand and Mr Stephenson on the other. Annexed to Mr Stephenson’s statement are email exchanges between him and Mr Staniforth in respect to one of the central issues Mr Staniforth deals with in his dispute notification; namely, the arrangements in place in respect to Bank of Days (clause 78 in EBA9).
Qantas’ reply submissions (at para 12) deal with the principles of enterprise agreement interpretation. In this respect, the Commission would have regard to the ‘surrounding circumstances’ where a particular disputed clause is ambiguous, uncertain or capable of more than one meaning; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union v Berri Pty Ltd (AMWU) [2017] FWCFB 3005 (‘Berri’). In my view, much of the material sought by Mr Staniforth in the Orders for Production fall into the category of ‘surrounding circumstances’ and would therefore be relevant only if the words in the Agreement were found to be ambiguous or uncertain and then would become relevant to his substantive dispute, assuming he succeeds in overcoming Qantas’ objections. That point is not yet reached.
In any event, I am satisfied that the material and evidence filed by both parties is sufficient for me to determine the jurisdictional objections of Qantas and the Orders for Production are therefore irrelevant for present purposes. Should Mr Staniforth succeed in overcoming these objections, and a merits determination of his dispute is necessary, it will be open to him to press for the production of some or all of the documents captured in his current proposed Orders, subject to any objections the other parties may have to their production at that point. Accordingly, I set aside in full the two Orders for Production filed by Mr Staniforth on 1 February 2018 and directed to Qantas Airways Limited and the Flight Attendants’ Association of Australia. I order accordingly.
DEPUTY PRESIDENT
Appearances:
Mr C Worthy for the applicant.
Ms K Srdanovic, Solicitor (Ashurst Australia) for the respondent.
Mr Hayward, Solicitor (Haywards Solicitors) for the Association.
Hearing details:
2018.
Sydney:
February 9.
Printed by authority of the Commonwealth Government Printer
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