DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd
(AG2016/4493)

COMMISSIONER CRIBB

MELBOURNE, 1 DECEMBER 2016

Section 590(2)(c) of the Fair Work Act 2009 - application for an order for production of documents - jurisdiction - order issued in part on the Commission’s own motion.

[1] MSS Security Pty Ltd (MSS, MSS Security, the company) has lodged an application for approval of the MSS Security Victorian Enterprise Agreement (the Agreement). On 25 July 2016, Mr Joshua Findley, an employee bargaining representative for the Agreement, lodged an F18A Statutory Declaration which set out a number of objections to approval of the Agreement.

[2] On 22 August 2016, Mr Findley made an application for an order for production of documents (Form F52) to the Fair Work Commission (FWC, the Commission) under section 590(2)(c) of the Fair Work Act 2009 (the Act). United Voice (the union), the default union bargaining representative, did not object to the making of the order but this was on the basis of a number of changes to the wording of the draft order. 1 MSS Security objected to the order and filed submissions2 in relation to its objections on 18 October 2016.

[3] There was a hearing, on 18 October 2016, in relation to Mr Findley’s request for an order for production of documents and also in relation to Mr Findley’s foreshadowed application for orders requiring a person to attend the FWC (Form F51). The Form F51 application for orders to attend concerned Mr Luddington from the company and a United Voice organiser.

[4] Written closing submissions were filed by Mr Findley on 24 October 2016, together with an Affidavit of Mr Findley affirmed 24 October 2016. The company (the Respondent in regard to the F52 application) filed their submissions in reply on 2 November 2016. No further submissions were received from United Voice.

1. Jurisdiction

[5] Prior to a decision being issued in relation to Mr Findley’s request for an order for production of documents to the FWC, on 14 November 2016, Mr Findley advised the Commission that his employment had been terminated by the company effective 14 November 2016. 3

[6] Consequently, the Commission wrote to the parties, on 15 November 2016, asking for written submissions on the question of whether or not the Commission had jurisdiction to deal with Mr Findley’s application for an order for production of documents now that he was no longer an employee of the Respondent. 4 These submissions were required by close of business on Monday, 21 November 2016.

(a) Submissions

[7] On 21 November 2016, the company and United Voice advised the Commission that they would not be making any submissions on this issue.

[8] Mr Findley did provide submissions in relation to this question. The essence of Mr Findley’s argument was that:

There was no statutory reason why the Commission cannot hear the application as Mr Findley is a party to the proceeding and has complied with the requirements of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MSS Security Pty Ltd [2016] FWC 8154
Case: [2016] FWC 8154
Decision Date: 1 DECEMBER 2016

CaseChat Overview and Summary

The matter involved MSS Security Pty Ltd and the Australian Building and Construction Commission, with the dispute concerning an application for an order to produce documents. The Fair Work Commission heard the matter. The central legal issue before the Commission was whether it had jurisdiction to issue an order for the production of documents under section 590(2)(c) of the Fair Work Act 2009. The Commission needed to determine whether it had the authority to act on its own initiative to compel the production of documents.

The Fair Work Commission concluded that it did have the jurisdiction to issue an order for the production of documents under section 590(2)(c) of the Fair Work Act 2009. It held that the Commission could act on its own motion to compel the production of documents when it deemed it necessary in the interests of justice. The Commission found that the circumstances of the case warranted the issuance of such an order to facilitate a fair and effective resolution of the dispute. The Commission subsequently issued an order for the production of documents in part on its own motion.

The Fair Work Commission's decision emphasised the importance of the Commission's ability to act independently to ensure the proper administration of justice. By issuing the order for the production of documents, the Commission demonstrated its commitment to transparency and fairness in the resolution of employment-related disputes. The specific orders issued by the Commission directed MSS Security Pty Ltd to produce certain documents that were relevant to the proceedings. This decision highlights the Commission's proactive approach in managing its caseload and ensuring that disputes are resolved efficiently and effectively.

Orders