MTCT Services Pty Ltd vCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries...

[2019] FWC 1422

[2019] FWC 1422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MTCT Services Pty Ltd

v

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);
and
The Australian Workers’ Union
(AG2018/6909)

COMMISSIONER CIRKOVIC MELBOURNE, 8 MARCH 2019

Application for Order requiring production of documents – application for confidentiality orders.

[1] This decision relates to an application for orders requiring production of documents under s.590(2)(c) of the Fair Work Act 2009 (Cth) (the Act), filed jointly on 1 February 2019 on behalf of the following unions:

•  Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);

•  “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and

•  The Australian Workers’ Union (AWU)

(collectively, the Unions).

[2] The application was made in the context of the Unions’ objection to MTCT Services Pty Ltd’s (the Company’s) application for approval of the MTCT Services Pty Ltd Esso Offshore and Onshore Maintenance Services Enterprise Agreement 2018 (the Agreement). The Company previously applied to the Commission for approval of the Agreement on 6 June 2018 and subsequently withdrew that application 11 October 2018 (the Previous Application). This decision relates only to the issues that arose from the Unions application for orders to produce, with the overall approval application to be determined.

[3] Central to both this decision and the overall objection to the approval application is the Unions’ contention that the Agreement has not been genuinely agreed, because the Company has included in its application the votes of employees who were ineligible for voting because they were not “employed at the time” as required by s.181(1) of the Act.    1 This contention is based on the large increase in the number of employee votes from those included in the Previous Application, 115, to those in the current application, 265. The Company submits that this increase of 150 employees is the result of its absorbing employees of a subcontractor and an increase in the scope of its maintenance work.2 The Unions challenge the reasons advanced for the “substantial” increase in employee numbers and contend that the Company has included the votes of casual employees ineligible to vote.3

[4] The issue for me to decide at this point in proceedings is the scope of a confidentiality order over documents produced by the Company. The Company has agreed to provide a fully unredacted spreadsheet to the Commission (the Spreadsheet), to be inspected by the Unions’ representative, Mr Borenstein, pursuant to agreed terms of a confidentiality order. The Spreadsheet provides employee numbers, names, their location of work and the dates and hours worked, between 13 and 26 November 2018. Mr Borenstein has submitted that the scope of the confidentiality order should also allow for inspection of the Spreadsheet by his instructing Union officials.

Procedural background

[5] Following an initial mention conducted on 24 January 2019, I issued directions for the filing of submissions, any orders to produce and objections to any such orders.

[6] The Unions sought orders to produce documents in the following terms:

“1. Copies of all emails containing the NOERR referred to at Q2.3 of the Statutory Declaration dated 7 December 2018 by Terry Elliott, or any other NOERR in respect of the proposed agreement.

2. Copies of the emails containing the proposed agreement, as referred to at Q2.4 of the Statutory Declaration dated 7 December 2018 by Terry Elliott.

3. Copies of the relevant company and/or client policies referred to at clauses 30 to 32 of the proposed agreement.

4. Copies of the emails, containing the notification of the time, date and or place of the vote and/or the voting method to be used, referred to at Q2.5 of the Statutory Declaration dated 7 December 2018 by Terry Elliott.

5. Copies of all documents that record the time and/or location worked, by each of the employees within the scope of the proposed agreement, for the period of 11 October 2018 to 26 November 2018.

6. Copies of the contracts of employment of each of the employees who:

6.1. performed work within the scope of the proposed agreement during the period of 11 October 2018 to 26 November 2018; or

6.2. voted upon the proposed agreement.

“documents” includes a letter, report, diary note, file note, briefing paper, minute, memorandum, email communication, facsimile transmission, SMS, direction, instruction, map, plan, drawing or photograph or any similar form of written or electronic communication, report or record including a draft or copy of same, and the singular should be taken to include the plural.”

[7] On 5 February 2019 I issued orders to produce in the same terms as those above (Orders). 4

[8] On 8 February 2019 the Company emailed my chambers objecting to the Orders and requesting they be set aside. The Company filed submissions relating to its objections and the overall approval matter in the afternoon of 11 February 2019. The Company’s submissions included a statement of Mr Terence Elliott, Group Manager Industrial Relations of UGL Pty Limited, a parent company of the Company.

[9] On 12 February 2019 a further mention was conducted. The parties were advised that the Commission would issue requests for documents to inform itself in relation to issues arising from the substantive approval application, independently of and in addition to the Orders already issued, following which the Unions were to advise the Commission of the numbered items in the Orders it continued to pursue.

[10] On 13 February 2019, pursuant to s.590 of the Act, my chambers issued a request to the Company for production of documents in the following terms:

“1. Provision of the Notice of Employee Representational Rights

The Commissioner notes that in response to Question 2.3 of the Form F17, the employer purports to have provided copies of the Notice of employee representational rights by email to employees.

To satisfy the Commission of this requirement, the Commissioner asks that the employer provide copies of all the emails that were sent to employees.

 2. Copies of the Agreement

The Commissioner notes that in response to Question 2.4 of the Form F17, the employer purports to have provided copies of the Agreement by email to employees.

To satisfy the Commission of this requirement, the Commissioner asks that the employer provide copies of all the emails that were sent to employees.

 3. Notification of time, place and method of voting

The Commissioner notes that in response to Question 2.5 of the Form F17, the employer purports to have provided the details of the vote by email to employees.

To satisfy the Commission of this requirement, the Commissioner asks that the employer provide copies of all the emails that were sent to employees.

4. Employees employed at the time

The Commission must be satisfied that majority of the employees “employed at the time” cast a valid vote to approve the Agreement (see National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98).

The Commissioner asks that the employer provide copies of all documents that record the time and/or location worked, by each employee during the period of 13 November 2018 to 26 November 2018.”

(the Commission’s Request).

[11] On 14 February 2019, the Unions emailed my chambers noting that, following the Commission’s Request, they still pursued items 3 and 6 of the Orders, and wished to be heard. The matter was listed for hearing on 22 February 2019.

[12] On 20 February 2019, the Company replied to the Commission’s Request, attaching a bundle of documents, including the Spreadsheet referred to at paragraph [4] above. All Company employee names, employee numbers and email addresses were redacted. The Company submitted that this was due to “the intimidation of [the Company’s] employees over a very long period of time by the [Unions]”. The Company also submitted that:

“While [the Company] is prepared to provide unredacted copies to the Commission in accordance with a strict confidentiality regime to assist the Commission in its task, [the Company] objects to any unredacted information being disclosed to the [Unions] (save in respect of a confidentiality regime which extends to the [Unions’] representative only and only then on undertaking of confidentiality to the Commission with inspection to occur only at the Commission and no copies being taken or any information being disclosed by Mr Borenstein to his clients …”

[13] On 21 February 2019, the Company provided the Commission with unredacted copies of the documents pertaining to items 1-3 of the Commission’s Request, on the condition at [12] above. The scope of confidentiality over these documents is not in contention.

Issues in dispute

[14] At the hearing, following oral submissions, the parties engaged in discussions and agreed that the Orders relating to all items other than 3 should be vacated. 5 In relation to items 1, 2, 4 and 5, Mr Borenstein confirmed that, whilst the Unions reserved their rights in relation to those items, the Company’s compliance with the Commission’s Request would suffice for the purpose of consenting to vacating the Orders.6 In relation to item 6, the parties agreed that the Order should be vacated and the Company would produce 10 sample contracts in redacted form.7

[15] Mr Borenstein confirmed that item 3 (the Policies) was only relevant to the proceedings where the Company relied upon its alternative argument that, if the Commission found that the Company had not complied with its obligations under s.180(2)(a)(ii) to provide employees’ access to policies incorporated into the Agreement, the Commission should exercise its discretion under s.188(2) to waive that failure as a ‘minor procedural or technical error’, 8 based on the content of the Policies.9 That is, if the Company withdrew its alternative argument, the Unions would not pursue item 3.

[16] On 22 February 2019, the Company emailed my chambers confirming its withdrawal of the alternative argument relating to s.188(2) of the Act. Accordingly, item 3 is no longer at issue.

[17] The parties have agreed that Mr Borenstein may inspect the documents provided by the Company in unredacted form (other than the sample contracts referred to at [14] above), subject to a confidentiality order. At the hearing Mr Borenstein submitted that, further, the Commission should permit his instructors, officials of the Unions, to inspect the Spreadsheet in unredacted form, pursuant to the same terms of confidentiality that would otherwise apply to him alone. 10 Mr Gianatti, representing the Company, submitted that the confidentiality order should be confined to inspection by Mr Borenstein.

[18] Mr Borenstein submitted that in order to verify that the individuals named on the Spreadsheet were indeed “working at the time” and at the relevant location, the Union officials would need to inspect the Spreadsheet because the officials “are long-term organisers in the Latrobe Valley and have a general awareness of where employees are working”. 11 Mr Gianatti submitted that allowing officials to inspect the Spreadsheet was a “fishing” exercise and would lead to “intimidation” of named employees.12

[19] Mr Borenstein sought to rely upon the following passage of Bennett J’s judgment in Les Laboratoires Servier v Apotex Pty Ltd [2009] FCA 1097:

“[15] In Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045, Branson J considered a similar claim for confidentiality where the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. However, her Honour noted at [13] that, as recognised by Lord Wilberforce in Science Research Council v Nasse [1980] AC 1028 at 1065 cited by Spender J in Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408:

There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.

[16] Her Honour also noted (at [14]) that there is an established practice whereby inspection is provided of discovered documents with parts of the documents masked.  That practice is based on a positive right to withhold from inspection that part of the document in respect of which there is, for example, a valid claim for privilege.  Justice Branson said that there is no such positive right in respect of portions of documents sought to be withheld from inspection on the grounds of confidentiality or irrelevance.  Observing at [21] that the Court is in a position to prevent the inappropriate issue of, for example, subpoenas, her Honour concluded that the applicant was entitled to see complete, unmasked copies of discovered documents.”

[20] Mr Gianatti, submitted that the correct approach to confidentiality orders was as prescribed by s.594 of the Act, and that it is “well-established in [the Commission]” that it may use its “specialist” awareness of the industrial nature of the disputes before it to make appropriate confidentiality orders to protect persons involved in those disputes.  13 Mr Gianatti submitted that, as attested in Mr Elliott’s statement, even if the Commission were to find that the employee names were not of a confidential nature per se, “the history of the site, the intimidation of employees and our genuine apprehension to the way that the handing of names to officials will be misused” warrant a determination that the Union officials not be given access to the unredacted documents as sought by Mr Borenstein.14 Mr Gianatti also submitted that allowing the Unions’ officials to inspect the documents “doesn’t go anywhere. Because if the union official doesn’t know who the name is on the sheet, well, they don’t know them.”15

Consideration

[21] The key principle in matters involving the production of documents is that “the documents sought must have apparent relevance to the issues in the proceedings”. 16 The documents must be reasonably expected to “throw light on some of the issues in the principal proceedings”.17

[22] Mr Borenstein raises an issue of substance as to the increase in numbers in employees eligible to vote for the Agreement, from 115 in June 2018, to 265 in November 2018. The issue is relevant to me in respect of the matters of which I must be satisfied in the Agreement approval process. Notwithstanding this, in my view, the approach proposed by Mr Borenstein to determine the issue is unhelpful at best. Indeed, the submission taken at its highest is that “the officials”, his instructors, “don’t know everybody; I’m not putting it to that extent, but by allowing them to look at the list, they will be able to say, no. I know that person. They are working here. They have never worked there…” 18 (underline emphasis added).

[23] I am not persuaded in the circumstances of this case that allowing access to the Unions’ officials to employee names for the purpose of forensic identification is an appropriate method of satisfying the requirements of s.181(1) of the Act. In coming to this conclusion, I have taken into account Mr Gianatti’s apprehension around the provision of employee names to Union officials, in circumstances of a longstanding heated industrial environment. Having said that, on the evidence before me, I make no specific findings as to any pressure on employees to vote or not for the Agreement, or any specific instances of employee intimidation. To do so, on the material before me, would be pure speculation.

[24] I have also taken into account ss.594 and 577 of the Act and the authorities wherein the principle of the open administration of justice has been considered by the Commission. 19 For the reasons stated above, I am satisfied that an order to produce the following documents would be sufficient for both the Commission and the Unions to verify the number of employees relevantly “employed at the time”:

(a) a copy of the Spreadsheet with only the employee names redacted; and

(b) wage or payroll records (such as payslips) from 13 November 2018 to 26 November 2018 inclusive for each employee on the Spreadsheet in (a), with the employee’s name (and other identifying information such as email addresses) redacted.

[25] In accordance with the agreement reached by the parties, if Mr Borenstein still wishes to inspect a fully unredacted copy of the Spreadsheet, for the reasons above at [22]-[23], he may do so subject to a confidentiality order preventing disclosure of employee names to his instructing Union officials.

[26] I have had regard to the principles regarding orders to produce, which are not at issue in this case. As observed by the Full Bench in Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU):  20

“[i]t is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”

[27] In the mix of factors of before me, I do not regard an order to produce pay records as oppressive.

Conclusion

[28] I will issue orders separately to this decision.

COMMISSIONER

Appearances:

Mr G Borenstein, for the Unions

Mr C Gianatti, for the Company

Hearing details:

10.00am, 22 February 2019.

Final written submissions:

Outline of Submissions on behalf of the Unions, handed up by Mr Borenstein during hearing of 22 February 2019.

Company’s submissions by email dated 20 February 2019.

< PR705514>

 1   See National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98; McDermott Australia Pty Ltd v AWU & AMWU [2016] FWCFB 2222.

 2 Statement of Terence Elliott filed 20 February 2019 at [14].

 3   Transcript PN196-7.

 4   See Transcript PN218-219.

 5   Transcript PN 220.

 6   Transcript PN62.

 7   Transcript PN 230.

 8   Fair Work Act 2009 (Cth) s 188(2).

 9   See Transcript PN79-PN117; PN2460-250.

 10   Transcript PN 196.

 11   Transcript PN 199.

 12   Transcript PN 270.

 13   Transcript PN 263-265.

 14   Transcript PN 263-267; see also Statement of Terence Elliott filed 20 February 2019.

 15   Transcript PN 270.

 16   Re Penelope Vickers [2017] FWCFB 3131 at [8].

 17   Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504.

 18   Transcript PN 199.

 19   Bowker and Ors v DP World Melbourne Ltd and Ors [2015] FWC 4542 [15]-[20]; Amie Mac v Bank of Queenland Ltd & Ors [2015] FWC 774 [6]-[7].

 20   [2017] FWCFB 2200 [6].

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