MSS Security Pty Ltd

[2016] FWC 8154

[2016] FWC 8154

FAIR WORK COMMISSION

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 the Act and the Rules. 5



• The Commission should be aware of any corrupting payments made between the company and the union. 6



• Mr Findley’s previous submissions have clearly shown that the union has misled employees about the content of the Agreement and the union supports it knowing that it fails the BOOT. 7

[9] The Commission was also referred to section 590 of the Act which provides that the Commission may inform itself in relation to any matter before it. 8

[10] In the alternative, Mr Findley contended that the Commission should make the order sought on its own motion. 9

(b) Considerations and conclusion

[11] An application for an order for production of documents was made by Mr Findley (Applicant in the F52 application) in his capacity as an employee bargaining representative for the Agreement, representing himself. 10

[12] Section 176 of the Act sets out the persons who are bargaining representatives for a proposed enterprise agreement (non-greenfields agreement) as follows:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.”

[13] As can be seen from section 176(1)(c) above, a person is a bargaining representative for an employee who will be covered by the agreement and who has been appointed by that employee. With the termination of Mr Findley’s employment, Mr Findley ceased to be a bargaining representative who was representing an employee who will be covered by the Agreement. This is because Mr Findley was appointed by himself to be his bargaining representative for the Agreement. As Mr Findley (himself) is no longer an employee who will be covered by the Agreement, Mr Findley ceases to be a bargaining representative for the proposed agreement.

[14] In addition, Mr Findley ceased to be a party to a matter before the Commission when his employment was terminated by the company. This was due to Mr Findley ceasing to be a bargaining representative for the proposed agreement as he was no longer representing an employee who will be covered by the proposed agreement. An appeal 11 by the CFMEU (an alleged default union bargaining representative in the case) against Collinsville Coal Operations Pty Limited, the Full Bench stated that:

“It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party.” 12

[15] Therefore, the Commission does not have jurisdiction to continue to deal with Mr Findley’s application for an order to produce documents. This is because such an application can only be made by a party to the proceeding.

(c) FWC - on its own motion

[16] Section 590 of the Act provides the Commission with the power to inform itself in relation to any matter before the Commission. Section 590 provides as follows:

“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).”

[17] In informing itself in relation to any matter, section 590 includes the power to require the provision of copies of documents or records to the Fair Work Commission. In considering the material before the Commission with respect to the order sought, the Commission has formed the view that it is appropriate if the Commission itself is informed in relation to certain of the material sought by Mr Findley. The material the Commission considers that it is appropriate to be informed about is in relation to documentation which refers to payments
by MSS Security to United Voice, other than those which would normally occur in the course of “business” between industrial parties.

2. Order for production of documents sought by Mr Findley

[18] The draft order filed by Mr Findley on 22 August 2016 sought that the following documents be produced:

“1. Any document (electronic or otherwise) that mentions a payment or benefit of any kind from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates, sent or received between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $20 is not to be included.

2. All financial records, bank statements and receipts that show payment from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $20 is not to be included.

3. All communications (electronic or otherwise), that were given to employees regarding the 2016 Enterprise Agreement, including all variations/versions of the document.

4. Data, sorted by employee, of the date the ballot notice was accessed by each employee on the employee portal (intranet).

5. Data, sorted by employee, showing all dates each individual employee accessed the notice board on the employee portal (intranet) between 1 January 2016 and the current date.”

[19] Mr Findley subsequently requested that the monetary amount set out in paragraphs 1(b) and 2(b) of the draft order be amended to “any amount over $70”. 13

3. Submissions

[20] Both the company and United Voice made submissions in relation to the order sought by Mr Findley. As indicated in paragraph [2], MSS Security objected to all of the documents sought by Mr Findley. 14 United Voice did not object to the documents sought in paragraphs 1 and 2 of the draft order but provided a revised draft order which was said to address its concerns with the terms of Mr Findley’s proposed order.

MSS Security

(a) Documents are not relevant to the application for approval of the Agreement

[21] In relation to paragraphs 1 and 2 of Mr Findley’s draft order, MSS Security submitted that the documents are not relevant in determining the substantive application. It was argued that the documents do not have any potential relevance in relation to the approval requirements under sections 186 and 187 of the Act. 15

[22] In relation to Mr Findley’s argument that the documents sought are relevant in considering whether the Agreement has been genuinely agreed to by the employees, the company contended that such documents would not be relevant in determining that there was genuine agreement. This was because something more than an inducement is required to establish that an employee’s choice had been negated and therefore genuine agreement had not been reached. The Commission was referred to the decision in Central Queensland Services Pty Ltd 16 (Central Queensland Services) in this regard.

[23] It was stated that MSS Security denies knowledge of any such payments. However, if the Commission was of the view that the documents would reveal something that was misleading or intimidating or where the consent of employees was not informed, it was indicated that the documents may be relevant. 17

[24] However, the company stated that Mr Findley’s allegations are entirely speculative and no material fact or basis for Mr Findley’s speculation has been provided. It was stated that the Commission would be in no better position than it currently is to determine whether the requirements of sections 186 and 187 of the Act have been met should the documents be produced. 18

(b) The order would be oppressive and confidential/sensitive information is sought

[25] MSS Security argued that, to issue the order, would be oppressive in terms of its impact and that the documents sought contain confidential and sensitive information. It was stated that ordering the documents set out in paragraphs 1 and 2 would lead to an embarrassing order. This was because MSS would be unable to produce the information required. 19

[26] The company explained that what was being sought requires MSS to have access to, or control over, payments made by MSS employees to United Voice from January 2010. It was stated that the company does not have legal possession over such documents and would not practically be capable of producing such records on behalf of its employees. 20

[27] Further, the company contended that the documents are not identified with reasonable particularity with the result that MSS would not be capable of producing the documents referred to. This was because the stated documents/information apply to approximately 12,000 employees from 2010 onwards who have made payments to United Voice for various purposes e.g. automatic union deductions, fees. Since the documents/information sought lack sufficient particularity, it was argued that they would impose an excessive burden on MSS in determining what precisely is required to be produced. 21

(c) Application is a fishing expedition

[28] It was argued that the documents referred to in paragraphs 1 and 2 would constitute a fishing expedition. The company contended that it has been found that the Commission’s power under section 590 of the Act is not to be used to discover whether there is a case at all. The Commission was referred to the decision in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 as cited with approval in the decision in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 22 (the ANF decision).

[29] The company stated that its two most strongly pressed grounds for objection to the order sought are lack of relevance together with the fact that this is a fishing expedition by Mr Findley. 23

(d) Communications regarding 2016 Enterprise Agreement (paragraph 3 of the order sought)

[30] MSS objected to the production of variations/versions of the 2016 Enterprise Agreement (EA) document on the basis that they are not relevant to an issue that might arise in the substantive hearing. The ANF decision was referred to in this regard. Variations/versions of the 2016 EA were also said to not be relevant as the substantive application did not concern previous versions of the document. The decision in Central Queensland Services was highlighted in this respect. Rather, the relevant documentation was stated to be what was put to the employees at the time of, and leading up to, the vote for the Agreement. 24

[31] It was submitted that, as a current employee, Mr Findley has been provided with the documents that were given to employees for the purposes of voting on the Agreement. In any event, MSS stated that Mr Luddington is prepared to provide an undertaking to the Commission that Mr Findley has been provided with all relevant documents that have been in the company’s possession and that no other variations/versions exist. The company argued that the Commission should not make an order for the production of documents when it is satisfied that there are no documents within the category to be produced. 25

(e) Data from employee portal (paragraphs 4 and 5 of order sought)

[32] MSS opposed the production of documents in paragraphs 4 and 5 on the basis that they are not relevant to an issue which might legitimately arise and do not go to the substantive issue in regard to the application for approval. 26

[33] The company also contended that the Act requires MSS to “take all reasonable steps” to, amongst other requirements, give copies of material to employees, notify employees of the relevant start of the access period and explain the terms and the effect of the terms to employees (sections 180(2), (3) and (5)). It was argued that, under these provisions, the company is not required to ensure that employees vote (voting is not compulsory) or that they have actively checked correspondence in relation to the EA vote. 27

[34] In addition, MSS submitted that the question of whether or not employees actually access the ballot notice or noticeboard is not relevant in determining whether the company has satisfied the statutory requirements in relation to approval of the Agreement. 28

[35] If the Commission was of the view that the data from the employee portal goes to the question of whether the company took all reasonable steps, MSS argued that such an assessment will be determined at the substantive hearing. It was stated that an order under section 590 should not be used to determine a preliminary question as to whether a party has a supportable case or to investigate the opposing party’s evidence. 29

[36] MSS advised that the information sought by Mr Findley is not capable of being produced. This is because the company’s IT system is not capable of providing the information requested. It was explained that the IT system did not log or track when an employee accesses the employee portal or noticeboard. The company stated that Mr Luddington had confirmed this fact with the National IT Manager and is prepared to give an undertaking to the Commission to this effect. 30

[37] The company submitted, therefore, that an order for the production of these documents would be otiose and therefore should not be made. 31

(f) Submissions in reply

[38] In its Outline of Respondent’s Submissions in Reply 32, the company responded to various submissions made by Mr Findley as follows:

(i) Basis for request

[39] The Respondent submitted that the legal and factual basis of Mr Findley’s application is misconceived and legally incorrect on the basis of the guiding authorities in relation to section 590(2)(c) of the Act. 33 It was stated that Mr Findley’s intuition and misconceived assertions regarding the BOOT are not a basis for the exercise of the Commission’s discretion (ANF decision). The company stated that the Applicant’s intuition and supposition has led him to the illogical conclusion that the union only supports the approval of the 2016 EA because it has received payments from the Respondent. It was said that it is because of these suspicions that the Applicant seeks an order. The Respondent contended that this could only be described as a fishing expedition because the Applicant gives no proper legal or factual basis for his intuition and supposition.34

[40] Further, it was stated that the Applicant’s conclusions are based on a misconceived and incorrect understanding of the BOOT. The Respondent submitted that it was well established that the BOOT is not applied as a line by line analysis but a global test. It was argued that it is trite law that an agreement may pass the BOOT even if some Agreement benefits have been reduced below the Award as long as, overall, those reductions are more than offset by the benefits of the Agreement. Therefore, it was submitted that the application of the BOOT requires an overall assessment of whether an employee would be better off under the Agreement. As the basis for the Applicant’s supposition and suspicion is that he has undertaken a line by line analysis, it was contended that the legal basis for the application is erroneous. 35

[41] In the alternative, it was stated by the company that the Applicant’s submission requests that the Commission, to some extent, undertake a BOOT analysis of the 2016 EA in order to determine the relevance of the documents sought for production. In terms of the ANF decision, this was said to be inappropriate and that the request should be refused by the Commission on the basis of relevance. 36

(ii) Fishing expedition

[42] The Respondent stated that its most strongly pressed ground of objection is that it is a fishing expedition by the Applicant. Seeking documents on the basis of supposition and intuition was described as a quintessential fishing expedition. It was stated that the Applicant is seeking documents, not to support his case, but to discover whether there is a case at all. On the basis of the relevant authority, this was said to be entirely inappropriate. 37

[43] It was contended that the principles, affirmed by Commissioner Jones in the ANF decision, do not support the Applicant’s case. The Respondent argued that the Applicant has not provided any material or factual basis for making the order sought. In addition, it was stated that the Applicant has not sufficiently addressed the legal and factual objections made by the Respondent in its submissions dated 18 October 2016. 38

(iii) Documents in paragraphs 1 and 2

[44] With respect to the relevance of the documents sought to an issue in the substantive proceedings, it was stated that the Applicant has made a range of spurious allegations to attempt to establish the relevance of the documents sought. 39 The Respondent contended that the basis for the BOOT analysis underpinning the Applicant’s submissions is legally wrong. This is because the application of the BOOT is not a line by line analysis of the terms of the Agreement which are less beneficial than the applicable award. It was argued that the documents sought under this category cannot, by implication, be relevant to the substantive proceedings.40

[45] Further, the Respondent submitted that the Applicant’s allegations are entirely speculative and are based on intuition. It was stated that the union flyer, attached to the Applicant’s submissions, did not provide a material basis to support a view that there was something more than an inducement which would have resulted in an employee’s free choice being negated. 41

[46] The company contended that the documents and information sought have not been identified with the requisite particularity. It was stated that the documents requested, apply to approximately 12,000 employees from 2010, who would have made payments to the union for various purposes. 42 Despite increasing the minimum value of payments to $70, the Respondent argued that, due to the insufficient particularity, production of the documents would impose an excessive burden on MSS in determining what precisely is required to be produced. It was contended that the result would be overly oppressive on the Respondent.43

(iv) Documents in paragraph 3

[47] The Respondent reiterated Mr Luddington’s undertaking that the Applicant has been provided with all of the relevant EA documentation that was given to employees for the purpose of voting on the EA. In addition, Mr Luddington’s previous undertaking, that no other variations or versions of this document exists, was reconfirmed. 44

[48] It was submitted that the documents sought were another fishing expedition by the Applicant and that such an order would be otiose and embarrassing as it would not be capable of being complied with. The Respondent stated that this is not a proper basis for the Commission to exercise its discretion. 45

(v) Documents in paragraphs 4 and 5

[49] Mr Luddington’s previous undertaking was reiterated. It was also submitted that the order should not be issued as it would be otiose and that the information sought related to a question in the substantive hearing and should be determined following final arguments and evidence. 46

United Voice

[50] United Voice wrote to the Commission on 10 October 2016 and 17 October 2016 in relation to paragraphs 1 and 2 of the order sought which relate to United Voice. A revised draft order 47 was provided by the union. It was stated that, subject to concerns with the form of the order, the union did not object to an order being made. This was on the basis that the union had nothing to hide and the documents that Mr Findley is seeking do not exist. The union argued that the basis for Mr Findley’s apparent belief that there was illegitimate collusion or transactions between the union and the company is not clear and has not been made out.48

[51] The union’s concerns was stated to be that it might be possible that the order could be construed as requiring the union to produce all documents relating to its advocacy and enforcement of its members’ industrial interests with MSS Security. It was explained that this was the reason the union was seeking to exclude documents relating to the company’s “obligations under law”. United Voice contended that an order for the production of such documents would be oppressive as it would require the union to disclose many documents recording their advocacy/representation of members. It was further contended that this material was irrelevant in relation to the application. 49

[52] Secondly, United Voice’s other concern was that the order might be construed to require the union to disclose documents relating to the payment of union membership dues. It was stated that material of this nature was voluminous and that it would be most oppressive to require the union to produce such material. This was said to be particularly so as none of this material is relevant and also it is sensitive material. This was due to many members joining the union on the basis that their membership will not be publicly disclosed without their express approval. 50

Mr Findley

[53] In his submissions, Mr Findley stated that, in its final report, the Royal Commission into Trade Union Governance and Corruption (Heydon Review) recommended a number of changes to legislation to prohibit corrupting behaviour such as payments being made in exchange for favourable deals in enterprise bargaining. It was argued that any such payment or benefit (including donations, training or fees) between MSS and United Voice is immoral and relevant. 51

[54] Mr Findley contended that, if a Royal Commission has determined that such payments should attract a criminal penalty, in the Commission exercising its discretion, it should be a consideration in this case. It was stated that it was hard to believe that the Commission would want to pull the wool over their eyes when they know that such payments do indeed induce uninformed agreements. 52

(a) Basis for the request

[55] Mr Findley submitted that the basis for the request was that the proposed agreement has significant BOOT issues and it puts employees in a worse position than the Security Services Industry Award 2010 (the Award). It was argued that, as the union is supporting an Agreement that is less favourable than the Award, the union’s motivations are relevant. 53

[56] It was alleged that the union has deliberately mislead employees through a flyer (dated June 2016) that was distributed throughout the workplace by the union. 54 This was in relation to the minimum guaranteed wage increase; moving new guards permanently off the Award minimum; protection of conditions; improved VOT, training and rostering and the union recommendation to vote yes.55 In addition, it was stated that Mr O’Connor, United Voice, verbally mislead employees about the content of the Agreement.56 Therefore, Mr Findley argued that, in accordance with the Central Queensland Services decision, the United Voice flyer was deliberately misleading.57 The union’s motivations for misleading employees was stated to be relevant.58

[57] Mr Findley explained that he had made this application as his intuition had led him to believe that something corrupt had happened. This was because he could not think of another reason as to why the union negotiated an Agreement that was worse than the Award and had distributed material for the purpose of inducing employees to vote for it. 59

[58] It was stated that United Voice has a package called “Safeguard” which was described by Mr Findley as designed to strike deals that are unfavourable to employees. This was on the basis that:

• The union engages in rolling strikes and creates propaganda that damages the reputation of the company if they do not sign up to Safeguard.



• Mr Findley believes that companies are to pay a fee to be Safeguard approved.



• The union works with the company to pay employees below the Award through a standardised and confusing classification system which reduces first-aid allowances.



• The union then sells the dodgy deal to employees by omitting the effect of the first-aid detriment and other terms.



• The Safeguard initiative allows companies to win contracts by quoting below the Award, save money on wages and it provides the union with a financial reward. 60

(b) Relevance and fishing exhibition?

[59] Reference was made to section 55 of the Evidence Act 1995 to support Mr Findley’s contention that the documents were relevant. It was stated that the documents will be used to question the credibility of witnesses. 61 In addition, Mr Findley argued that, if the union was supporting an Agreement that was worse off than the Award, then the reasons for doing so were relevant .62 The union’s motivation in misleading employees was said to be relevant to section 188(c).63

[60] With respect to whether the order for the production of documents was a fishing expedition, Mr Findley submitted that it was not a fishing expedition because he held a reasonable belief that such a document exists. This was based on the union’s dramatic change of stance, the creation of misleading material and the union’s support for the Agreement. 64

[61] It was contended by Mr Findley that, if the company gave United Voice money which resulted in the union acting against the interests of the employees, this was an issue in relation to section 188(c) of the Act. Mr Findley stated that such payments are relevant - hence the Royal Commission’s recommendations. 65

(c) Reasonable particularity

[62] It was stated by Mr Findley that the application has been made to obtain proof of corrupting benefits that were paid to United Voice by MSS to induce a vote of approval and to allow it to sail through the Commission. Mr Findley argued that the wording of the draft order was reasonably particular in the circumstances. This was because such payments would not be called a bribe but rather training, dinners, picnics etc. 66

[63] Mr Findley contended that the order could not be overly specific as the company and the union are trying to lure the Commission into making amendments to the draft order so that they can pass the corrupting benefit off as something else so that it does not need to be disclosed. 67

(d) Application is not oppressive

[64] It was contended that the documents requested, in paragraphs 1 and 2, are not oppressive because they exclude any payment below $70 which would include any legitimate membership dues. Mr Findley said that any other payments should be disclosed. 68 In Mr Findley submissions, dated 24 October 2016, Mr Findley requested that the order sought be amended to require disclosure of any amount over $70, rather than $20 as set out in the draft order.69

[65] Further, it was argued that it is not voluminous or oppressive to provide the documents which MSS distributed to employees in relation to the enterprise agreement which Mr Findley does not already have. 70

[66] In relation to paragraphs 4 and 5, Mr Findley submitted that documents showing how often employees accessed the online portal was not oppressive. It was stated that MSS do not want these documents to come to light as they will show that no or few employees regularly checks the notice board on the portal. 71

[67] It was stated that the requested documents prove facts in issue and each is fatal to the Respondent’s application for approval. 72

(e) United Voice’s objections

[68] It was argued that the union’s proposed amendments were designed to exclude documents relating to corrupting benefits. Mr Findley contended that, if the union had nothing to hide, the union would not be attempting to change the wording of the proposed order. Further, it was stated that the union’s second submissions, dated 17 October 2016, were contradictory. This was before because the union indicated that they did not oppose the objection but then set out two objections - which would exclude the documents sought. 73

(f) MSS Security’s objections

[69] In relation to the objection regarding potential relevance, Mr Findley stated that the documents would prove facts in issue under section 186(2)(a) and 188(c). With respect to MSS’ contention that more than an inducement was required, Mr Findley referred to the decision in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) 74 to support his argument that the union flyer is more than an inducement. Rather, it was described as deliberately misleading.75

[70] It was contended by Mr Findley that he had to show the potential relevance of the documents sought rather than direct relevance. Mr Findley stated that corrupting benefits are relevant, as affirmed by a Royal Commission. 76 It was also argued that, once the documents are produced, the Commission would be able to better understand why the union is throwing significant resources into having a substandard Agreement approved by the Commission.77

[71] In terms of the company’s submission that his allegations were entirely speculative, Mr Findley stated that there is no reason why a large well resourced union would support an Agreement below the Award. In addition, it was argued that there is no legitimate reason as to why the union should spread misleading information. 78

[72] Mr Findley argued that, as the level of payments has been raised to $70, it would not be oppressive. This was said to be due to the majority of payments between MSS and the union being excluded. 79

[73] It was submitted that the documents relating to paragraphs 1 and 2 should not be refused on the grounds of sensitivity and confidentiality. Mr Findley said that the union and MSS clearly did not want anyone to know about the bribe(s). This was said to be because the union and the company know that such payments are highly immoral. 80

[74] Mr Findley indicated that documents from 2010 are being sought. If the Commission believes that from 2010 is excessive, an alternative date could be no less than 18 months. 81 It was stated that the documents have not been requested to discover whether there is a case at all. Rather, Mr Findley said that employees have been misled and the Agreement is worse than the Award. These were said to be the facts of this case.82

(g) Communications in relation to the 2016 EA (paragraph 3)

[75] It was submitted that, if there are different versions of an explanatory document or other misleading document, then these documents should be considered by the Commission (sections 180(5) and 188(c)).

[76] Mr Findley stated that, if the company is adamant that he has received all of the documents, Mr Luddington should file an affidavit to that effect. 83

(h) Data from employee portal (paragraphs 4 and 5)

[77] It was contended that the documents requested will show that one of the three distribution methods used to notify employees of the ballot did not satisfy section 180(3). Mr Findley argued that if employees did not access the portal, then this method cannot be held as reasonable. The documents are requested to show that employees do not regularly access the portal/noticeboard. 84

[78] Further, it was stated by Mr Findley that he has asked many colleagues about their accessing the portal and the feedback was said to have been that no one did it on a regular basis. The documents were said to have been requested because Mr Findley’s colleagues do not want to be actively involved as that feel that the company will reprimand them. 85

[79] Mr Findley stated that it would be appropriate for the Commission to notify parties of an upcoming hearing via the “daily list”. As the Commission notifies parties via email, it was argued by Mr Findley that if a party missed a hearing because they failed to check the “daily list”, it would be unreasonable. 86

[80] Finally, Mr Findley argued that, if the data is unobtainable, Mr Luddington should be required to file an affidavit to this effect. 87

4. Considerations and conclusions

(a) Paragraphs 1 and 2 of Mr Findley’s draft order

[81] As indicated in paragraph [17] above, the Commission considers it appropriate to inform itself as to whether a payment or benefit was made by the company to the union which was other than one which would normally occur between industrial parties. The Commission is of the view that this information is relevant to consideration of the requirements under section 188(c). This is because, this information, if it exists, goes to the issue of whether the consent of the employees was informed when they voted to approve the proposed agreement. Put another way, if the employees had known that there was a secret payment made to the union by the company, could it have affected the way the employees voted?

[82] The documentation to be produced pursuant to the order will relate to payments at or above the amount of $70. In the Commission’s view, if an order was issued in the terms originally sought, excluding payments under $20, that would result in the order becoming oppressive on the company.

[83] I have also decided that the documents required to be produced are from 1 September 2015 to the date of this decision. Bargaining for the proposed agreement was initiated or agreed to by the employer on 9 March 2016. The date of 1 September 2015 provides a six month window prior to the commencement of bargaining. To require the production of the particular documents from 1 January 2010 is onerous and oppressive on the employer. In addition, there is no rationale before me which supports the date of 1 January 2010.

(b) Paragraph 3

[84] The Commission is not prepared to issue an order, on its own motion, in relation to the documentation sought by Mr Findley in paragraph 3 of the draft order. This is because the documentation that is relevant to the process for approval of the Agreement is that which was put to employees during the access period. Various versions of the agreement that may have arisen during the negotiations are not relevant as none of these documents were the document that the employees voted on.

[85] In terms of communications to employees, Mr Luddington’s contention that Mr Findley, whilst an employee, received all of the relevant documents, is accepted. Therefore, an order in this respect, is considered to be superfluous.

(c) Paragraphs 4 and 5

[86] The company has advised the Commission that the data sought is not capable of being produced. This is accepted. Therefore, there is no utility in the Commission issuing such an order on the Commission’s own motion or otherwise. It is also considered that the information requested goes to an issue to be dealt with in the substantive hearing and for this reason, in addition, the Commission declines to issue such an order.

Order for production and undertakings

(a) Order

[87] As set out in paragraphs [81] - [83] above, an order for production of documents to the Commission will be issued on the Commission’s own motion. The order will specify that the following documents are to be produced to the Commission:

“1. Any document (electronic or otherwise) that refers to a payment or benefit of any kind provided by MSS Security, its employees or related entities, to United Voice, its employees or related entities, sent or received since 1 September 2015, save and except:

a. Any document which relates to MSS Security’s employees’ conditions of employment
b. Any document which relates to MSS Security’s obligations under law (including under an industrial instrument)
c. Any document which relates to the payment of United Voice membership dues
d. Any payment from an MSS Security employee to United Voice below the amount of $70.

2. All financial records, bank statements and receipts that refer to a payment from MSS Security, its employees or related entities, to United Voice, its employees or related entities sent or received since 1 September 2015, save and except:

a. Any document which relates to MSS Security’s employees’ conditions of employment
b. Any document which relates to MSS Security’s obligations under law (including under an industrial instrument)
c. Any document which relates to the payment of United Voice membership dues
d. Any payment from an MSS Security employee to United Voice below the amount of $70”

(b) Undertakings

[88] In addition, the Company is required to provide the Commission with the two undertakings that it has indicated that it is willing to provide. The first undertaking from the company is that Mr Findley has been provided with all of the relevant EA documentation that was given to MSS employees for the purpose of voting on the 2016 EA and that no other variations or versions of the EA document exists. The second undertaking is that the MSS IT system does not log or track when and if MSS employees access the employee portal or noticeboard. Therefore, MSS cannot provide records of when and if the portal or noticeboard was accessed by employees.

[89] The documentation, which is the subject of the order, together with the undertakings, are required to be produced to the Commission, by close of business on Tuesday, 13 December 2016.

Hearing of substantive application

[90] The hearing for the substantive application will be at 12 noon on Monday, 19 December 2016.

[91] In Mr Findley’s submissions as to whether the FWC has jurisdiction to determine his application for an order for production of documents, Mr Findley reserved the right to make submissions if the question arose as to whether he could participate in the substantive hearing. 88

[92] Mr Findley is requested to file and serve submissions in relation to whether he has the right to be heard at the substantive hearing by close of business on Friday, 9 December 2016. MSS Security and United Voice are to file and serve any submissions they may wish to make on the issue of whether Mr Findley has the right to be heard by close of business on Thursday, 15 December 2016. This issue will be dealt with as a preliminary matter at the beginning of the hearing on Monday, 19 December 2016.

[93] With respect to the process for the substantive hearing, the Commission is in receipt of the Application for approval of an enterprise agreement (Form F16), the Employer’s Statutory Declaration (Form F17) which has a number of accompanying attachments, and Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement filed by United Voice (Form F18). As well, Mr Findley lodged a Statutory declaration of employee representative in relation to application for approval of an enterprise agreement (Form F18A). The Company and the union may, if either wishes, file and serve written submissions in relation to the issues raised by Mr Findley, ahead of the hearing. However, any witness statements that the company or union seeks to rely on at the hearing will need to be filed and served by close of business on Thursday, 15 December 2016.

Appearances:

R Levin of Mills Oakley for MSS Security Pty Ltd

J Findley employee bargaining representative

J Kenchington-Evans of United Voice

Hearing details:

2016.

Melbourne:

October 18.

Final written submissions:

Mr Findley, 24 October 2016

MSS Security, 2 November 2016

 1   Exhibit UV1

 2   Exhibit A1

 3   Email, dated 14 November 2016, from Mr Findley

 4   Email dated 15 November 2016

 5   Outline of Applicant’s Submissions - Question as to whether FWC has jurisdiction to determine application, dated 21 November 2016 at paragraphs 22 - 23

 6   Ibid at paragraph 17

 7   Ibid at paragraph 18

 8   Ibid at paragraph 12

 9   Ibid at paragraph 25

 10   Form F16 Application for approval of an enterprise agreement, dated 18 July 2016, at Attachment A1

 11   [2014] FWCFB 7940

 12   Ibid at [48]

 13   Outline of Applicant’s Oral Submissions, dated 24 October 2016, at paragraph 36

 14   Exhibit A1 at paragraph 7 and Outline of Respondent’s Submissions in Reply, dated 2 November 2016, at paragraph 4

 15   Exhibit A1 at paragraphs 7(a) and 8

 16   [2015] FWC 1554

 17   Exhibit A1 at paragraphs 11 - 12

 18   Ibid at paragraph 13

 19   Ibid at paragraphs 14 - 15

 20   Ibid at paragraphs 15 - 16

 21   Ibid at paragraphs 17 - 18

 22   [2011] FWA 8756

 23   Exhibit A1 at paragraph 21

 24   Ibid at paragraphs 23 - 25

 25   Ibid at paragraphs 22 and 26

 26   Ibid at paragraph 27

 27   Ibid at paragraphs 27 - 29

 28   Ibid at paragraph 30

 29   Ibid at paragraph 31

 30   Ibid at paragraphs 32 - 33

 31   Ibid at paragraph 34

 32   Outline of Respondent’s Submissions in Reply, dated 2 November 2016

 33   Exhibit A1 at paragraphs 1 - 6 and Outline of Respondent’s Submissions in Reply, dated 2 November 2016, at paragraph 7

 34   Outline of Respondent’s Submissions in Reply, dated 2 November 2016, at paragraphs 8 - 9

 35   Ibid at paragraphs 10 - 14

 36   Ibid at paragraph 16

 37   Ibid at paragraphs 17 - 19

 38   Ibid at paragraphs 19 - 21

 39   Ibid at paragraphs 22 - 23

 40   Ibid at paragraphs 25 - 27

 41   Ibid at paragraphs 28 - 29

 42   Ibid at paragraphs 30 - 34

 43   Ibid at paragraph 35

 44   Ibid at paragraph 39 -41

 45   Ibid at paragraphs 39 - 43

 46   Ibid at paragraphs 44 - 47

 47   Exhibit UV1

 48   Ibid

 49   Ibid

 50   Ibid

 51   Outline of Applicant’s Oral Submissions, dated 24 October 2016, at paragraphs 12 - 15

 52   Ibid at paragraphs 16 - 17

 53   Ibid at paragraph 18

 54   Ibid at paragraph 19 and Affidavit of J D Findley, dated 24 October 2016, at Attachment JDF-1

 55   Outline of Applicant’s Oral Submissions, dated 24 October 2016, at paragraph 19(a) - (e)

 56   Ibid at paragraph 20

 57   Ibid at paragraph 19(f)

 58   Ibid at paragraph 21

 59   Ibid at paragraph 22

 60   Ibid at paragraph 23

 61   Ibid at paragraphs 25 - 26

 62   Ibid at paragraphs 25 - 28

 63   Ibid at paragraph 29

 64   Ibid at paragraph 31(a)

 65   Ibid at paragraphs 31(c) and (d) and 32

 66   Ibid at paragraphs 33 - 34

 67   Ibid at paragraph 35

 68   Ibid at paragraphs 37 - 38

 69   Ibid at paragraph 36

 70   Ibid at paragraph 39

 71   Ibid at paragraphs 39 - 40

 72   Ibid at paragraph 41

 73   Ibid at paragraphs 42 - 46

 74   [2014] FWCFB 2042

 75   Outline of Applicant’s Oral Submissions, dated 24 October 2016, at paragraph 50

 76   Ibid at paragraph 51

 77   Ibid at paragraph 53

 78   Ibid at paragraph 52

 79   Ibid at paragraph 54

 80   Ibid at paragraphs 55 - 56

 81   Ibid at paragraph 58

 82   Ibid at paragraphs 58 - 60

 83   Ibid at paragraph 64

 84   Ibid at paragraphs 65 - 67

 85   Ibid at paragraph 68

 86   Ibid at paragraph 69

 87   Ibid at paragraph 70

 88   Outline of Applicant’s Submissions - Question as to whether FWC has jurisdiction to determine application, dated 21 November 2016 at paragraph 24

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