Mr Steven Gangell

[2018] FWC 4978

[2018] FWC 4978

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Mr Steven Gangell
(AG2018/1546)

FOOD PROCESS WORKER LOBETHAL ABATTOIR EMPLOYEE COLLECTIVE AGREEMENT 2008
[AC329102] [AC323986]

Meat Industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 24 AUGUST 2018

Application for termination of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008 - application for order to produce – records of a particular employee - apparent relevance – order premature

[1] This decision concerns an application for an order to produce in advance of the primary proceeding being heard and determined.

[2] The primary proceeding is an application (Form F28) dated 24 April 2018 to the Fair Work Commission (the Commission) by Mr Stephen Gangell (the applicant) for termination of a collective agreement-based transitional instrument being the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008 (the Agreement).

[3] The application is made pursuant to Item 16 Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) and, as a consequence, under section 225 of the Fair Work Act 2009 (the FW Act) and related provisions of Subdivision D of Division 7 of Part 2-4 of the FW Act.

[4] The Agreement is a collective agreement-based transitional instrument which, it is said, has passed its nominal expiry date.

[5] The applicant is being represented by an officer of the Australian Meat Industry Employees Union (the AMIEU).

[6] The respondent employer is Lobethal Abattoirs Pty Limited (the respondent employer).

[7] Mr Michael Handley has sought 1 and been granted permission to participate in these proceedings. Mr Handley is an employee of the respondent employer. He has participated in two conciliation conferences and some (but not all) directions hearings.

[8] I have conducted multiple directions hearings and issued directions on 18 May, 31 May, 4 June, 20 June and 7 August 2018.

[9] On 17 May 2018 I granted permission, by consent, for the respondent employer to be represented by a legal practitioner in these proceedings.

[10] On 31 May 2018 I made a decision concerning procedural matters. That decision was appealed by the AMIEU. By decision dated 31 July 2018 a full bench granted permission to appeal but dismissed the appeal. In doing so, it provided guidance on certain procedural matters.

[11] I conducted private conciliation conferences (attended by Mr Gangell, the AMIEU, Lobethal Abattoir and Mr Handley) on 3 July 2018 and 3 August 2018.

[12] On 7 August 2018 I set the application down for hearing and determination. It is listed for 29 and 30 October and 8 November 2018. I made orders requiring the filing of materials by the applicant (by 31 August), by the respondent employer (by 5 October) and by Mr Handley (by 5 October), with reply material by the applicant (by 19 October).

[13] In advance of the conciliation conference of 3 August and a directions hearing on 7 August, the AMIEU on behalf of the applicant foreshadowed it was seeking multiple categories of documents from the employer. 2 Except in one respect, I referred that issue to the parties for discussion. The exception was a category of documents of a historical nature concerning approval of the Agreement. Those documents concern records of the former Workplace Authority in 2009 and 2010. I undertook that the Commission would conduct reasonable searches concerning those historical documents.

[14] By email dated 13 August 2018 my chambers advised the parties that the Commission had conducted searches for relevant historical documents and that certain documents had been provided by the Office of the Fair Work Ombudsman (which holds records of the former Workplace Authority). Those documents have been provided to the parties.

[15] By application dated 15 August 2018 (F52) the AMIEU, on behalf of the applicant, is seeking an order for the production of documents. It seeks an order that Michael Handley produce within seven days his personal pay-slips and rosters for three periods: 5 March to 9 March 2018; 26 March to 16 April 2018; and 28 May to 20 July 2018.

[16] This decision concerns that interlocutory application.

[17] I conducted a hearing on the application to produce by telephone on 24 August. The AMIEU appeared for Mr Gangell. The respondent employer appeared. No appearance was made by Mr Handley. He had been notified of the telephone hearing and had been served with the application.

[18] At the hearing the AMIEU submitted that documents relating to Mr Handley’s pay-slips and rosters are relevant to testing his contention, expressed in his initial correspondence to the Commission of 31 May 2018, that he would be worse-off should the primary application be granted. It said that Mr Handley has been asked to provide the information but had declined, citing privacy concerns. The AMIEU has sought Mr Handley’s information but not the information of other persons because Mr Handley has participated in proceedings and expressed certain views whereas other persons had not.

[19] Lobethal Abattoir noted that the order was sought against Mr Handley. It submitted that the information sought was not relevant because it concerned the records of one employee. It said that the employer was in the process of responding to requests by the AMIEU for the preparation and production of general data sets which included data relevant to cohorts of employees, including the cohort that represented the classification worked by Mr Handley. It also said that the AMIEU should await Mr Handley’s materials and whether he further participates in proceedings. It said that if relevant information was still sought about an individual employee at that point it would seek to provide such information within 48 hours of a request.

Consideration

[20] The power to make an order for production is provided for in section 590(2)(c) of the FW Act:

“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).”

[21] The principles applying to the issue of orders for the production of documents under section 590(2)(c) are set out in Re Penelope Vickers 3:

“The principles applying to the issue of orders for production by the Commission under s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.”

[22] In considering Mr Gangell’s primary application, the Commission will be required to apply the provisions of section 226 of the FW Act. Section 226 lists factors which the Commission must consider. These include the public interest, the views of the employer, employees and organisations covered by the Agreement, and the circumstances of those employers, employees and organisations including “the likely effect that the termination will have on each of them.”

[23] It is common ground that approximately 600 employees are currently covered by the Agreement. Mr Handley is one of them. I am satisfied that the documents sought by the AMIEU have “apparent relevance” to this application as they may help inform the Commission of the “likely effect” on at least one such employee. I am also well satisfied that the applicant through the AMIEU is entitled to respond to the views expressed by Mr Handley in these proceedings and test the basis of those views.

[24] However I consider it premature to make the orders sought.

[25] Firstly, Mr Handley has been directed (by my directions of 7 August 2018) to submit materials on which he relies by 5 October 2018. The applicant (through the AMIEU) has been provided with a right to submit materials in reply by 19 October 2018.

[26] If Mr Handley wishes to participate in the determination of this matter he will need to lodge materials as directed. Those materials include “any document on which he intends to rely”.

[27] Secondly, whilst pay-slips and rosters of Mr Handley have apparent relevance, it is also the case that the AMIEU and the employer are in discussions concerning the production of anonymised and randomised pay and rostering data for cohorts of employees employed at the abattoir, including the cohort that includes Mr Handley. There is an overlap between the information sought concerning Mr Handley and the information the employer has undertaken to provide concerning the cohort that includes Mr Handley. Whilst this does not make information relating to Mr Handley irrelevant, I consider it appropriate to not make orders specific to one employee until these general data sets have been prepared and received.

[28] At this stage of proceedings I decline to make the orders sought. However, I adjourn the application and provide the applicant liberty to have the application re-listed at short but reasonable notice.

[29] Should the application be re-listed I draw attention to two further matters arising from the application.

[30] Firstly whether documents evidencing particular rosters and pay-slips for past periods of work by an employee are more readily produced by the employer rather than the particular employee and, if so, whether the orders sought are more appropriately directed at the respondent employer and its records than Mr Handley?

[31] Secondly, documents in the form of an employee’s pay-slip contain private information and, in the ordinary course, are communications between an employer and that employee. I consider it appropriate that any order that may be issued should have regard to the private nature of such records. This could be addressed by an order requiring the parties, once the document is produced to the Commission, to only use the document for the purposes of these proceedings and to not copy or otherwise on-forward the document to persons who are not parties to these proceedings. During the interlocutory proceedings the AMIEU indicated a willingness to consider appropriate qualifications to an order based on privacy considerations.

[32] I provided general liberty to apply in my directions of 7 August 2018. This extends to any request by the applicant (through the AMIEU) to extend the date for the lodgement of his materials on 31 August 2018 should there be reason to do so. Subject to hearing the parties, I further intimate that I do not intend to make any alteration to hearing dates should the date for the lodgement of Mr Gangell’s materials need to be extended.

DEPUTY PRESIDENT

 1   Letter from Mr Michael Handley to Deputy President Anderson (undated) received by the Commission 31 May 2018; email Michael Handley to Chambers 27 June 2018

 2   Email AMIEU to Chambers 7 August 2018 attaching document ‘production materials’

 3   [2017] FWCFB 3131 at [18] as cited in Findley v MSS Security Pty Ltd [2018] FWCFB 1065 at 28

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