OIPO Pty Ltd
[2023] FWC 773
•31 MARCH 2023
| [2023] FWC 773 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
OIPO Pty Ltd
(AG2022/5602)
| COMMISSIONER P RYAN | SYDNEY, 31 MARCH 2023 |
Application for orders to produce documents
On 23 December 2022, OIPO Pty Ltd (OIPO) filed an application for approval of an enterprise agreement known as the OIPO Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act).
The application for approval is opposed by the Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).
The matter is listed for hearing on 13 April 2023.
On 1 March 2023, the CFMMEU filed five applications for orders to produce documents directed to OIPO and four related entities of OIPO, namely Crushing Services International Pty Ltd, Mineral Resources Limited, Onslow Iron Pty Ltd and Process Minerals International Pty Ltd (Production Applications).
The Production Application directed to OIPO seek an order for production of the following documents:
Copies of any and all of the following documents that are in the possession, control or custody of OIPO Pty Ltd:
1.Any contract under which OIPO Pty Ltd provide OIPO Pty Ltd employees to perform work for another entity.
2.employment contact of any OIPO Pty Ltd employee employed as of 29 November 2022.
3.employment contact of any OIPO Pty Ltd employee employed as of 14 December 2022.
4.All documents evidencing or recording any communication concerning, or consideration of, the following matters by officers, agents, employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a. The reason OIPO Pty Ltd was incorporated.
b. OIPO Pty Ltd’s intended function.
c. the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
d. the advantages, disadvantages or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
The Production Applications directed to the related entities were in identical form and seek an order for production of the following documents:
Copies of any and all of the following documents that are in the possession, control or custody of [Entity]:
1. Any contract under which OIPO Pty Ltd provide OIPO Pty Ltd employees to perform work for [Entity].
2.All documents evidencing or recording any communication concerning, or consideration of, the following matters by officers, agents, employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a.The reason OIPO Pty Ltd was incorporated.
b.OIPO Pty Ltd’s intended function.
c.the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
d.the advantages, disadvantages or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
e.whether to engage in negotiations with employees of Onslow Iron Pty Ltd for
a new enterprise agreement to cover the Onslow Iron Project; and/or
On 2 March 2023, OIPO filed a preliminary submission opposing the Production Applications.
The matter was then listed for mention and directions. Both parties sought an opportunity to file further submissions in support of, or opposition to, the Production Applications. Following the mention and direction hearing, directions were issued to the parties with respect to any further submissions and the matter listed for the hearing of the Production Applications on 23 March 2023.
On 10 and 17 March 2023, the CFMMEU filed amended categories of documents in relation to the Production Application directed to OIPO.
On 23 March 2023, prior to the commencement of the hearing, the CFMMEU filed further amended categories of documents in relation to the Production Application directed to OIPO. The further amended categories seek an order for production of the following documents:
Copies of any and all of the following documents that are in the possession, control or custody of OIPO Pty Ltd:
1.Any contract under which OIPO Pty Ltd provide OIPO Pty Ltd employees to perform work for another entity.
2.employment contracts of any OIPO Pty Ltd employee employed as of 29 November 2022.
3.employment contracts of any OIPO Pty Ltd employee employed as of 14 December 2022.
4. (A) All documents evidencing or recording any communication concerning the following matters by officers, agents or employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a.the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
b.the advantages, disadvantages or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
4. (B) All documents evidencing or recording the consideration of the following matters by officers, agents or employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a.the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
b. the advantages, disadvantages, or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
5. (A) All documents evidencing or recording any communication concerning the following matters by officers, agents, employees of OIPO Pty Ltd between 29 November 2022 and 14 December 2022:
a.An offer or counteroffer made by one of the bargaining representatives for the proposed agreement.
(B) All documents evidencing or recording the consideration of the following matters by officers, agents, employees of OIPO Pty Ltd between 29 November 2022 and 14 December 2022:
b.An offer or counter offer made by one of the bargaining representatives for the proposed agreement.
At the commencement of the hearing on 23 March 2023, the CFMMEU sought to further amend the categories in relation to the Production Applications directed to each of the related entities as follows:
Copies of any and all of the following documents that are in the possession, control or custody of [Entity]:
1. Any contract under which OIPO Pty Ltd provide OIPO Pty Ltd employees to perform work for [Entity].
2. (A) All documents evidencing or recording any communication concerning the following matters by officers, agents or employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a.the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
b.the advantages, disadvantages or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
2. (B) All documents evidencing or recording the consideration of the following matters by officers, agents or employees of any company within the Mineral Services Group between 1 January and 23 December 2022:
a.the business rationale and/or the benefits of engaging employees to work for OIPO Pty Ltd.
b.the advantages, disadvantages, or effect of making an agreement which would apply to employees of OIPO Pty Ltd.
Summary of CFMMEU Submissions
The CFMMEU opposes the application for approval for two reasons. First, that OIPO did not take all reasonable steps to ensure the terms of the Agreement and the effect of those terms were explained to the relevant employees. Second, that there are other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.
The CFMMEU observed:
· that OIPO was registered on 28 November 2022;
· that on 29 November 2022, OIPO issued a notice of employee representational rights to its employees and commenced bargaining; and
· that those employees were transferred from related entities of OIPO.
The CFMMEU submitted that the Commission would be concerned that OIPO was registered in an attempt to avoid bargaining with the unionised workforces of the related entities, lacked authenticity and that the employees did not have the moral authority to agree to the terms of the agreement, citing One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union.[1]
Against that background, the CFMMEU submitted that the Production Applications seek documents that are potentially relevant to the concerns and issues that might legitimately arise in this matter.
In support of the Production Applications, the CFMMEU cited relevant authorities setting out the applicable principles to the issuing of an order for production of documents.[2] The CFMMEU submitted that the categories of documents must not be so wide as to be oppressive.
The CFMMEU submitted that the categories of documents must be potentially relevant to an issue that might legitimately arise and that the test for relevance is not direct relevance, but whether the documents have an adjectival or apparent relevance in that the material sought might throw light on some of the issues in the substantive proceedings.[3]
The CFMMEU rejected that the Production Applications amounted to a ‘fishing expedition’ and submitted that in the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.[4]
The CFMMEU submitted that the categories of documents are relevant to:
· Whether the OIPO was incorporated to subvert or undermine the collective bargaining provisions in the FW Act;
· Whether the voting cohort were employees with the moral authority to approve the Agreement; and
· Whether the parties engaged in bargaining.
The CFMMEU submitted that in weighing up the competing interests, the notion that “all material relevant to the issue be available to the parties to enable them to advance their respective cases” ought to be given primacy over any concern that granting an order imposes a burden upon the recipient.[5]
Summary of AWU Submissions
The AWU supported the granting of the Production Applications, adopting the submissions of the CFMMEU.
Summary of OIPO’s Submissions
OIPO opposed the Production Applications (as amended), submitting that they should be dismissed on the basis that the categories of documents are irrelevant and amount to a fishing expedition, are vague and uncertain, and are oppressive.
OIPO submitted that in exercising its discretion to make orders for production of documents, the Commission generally applies the principles which courts apply to notices to produce. OIPO submitted those principles were distilled by Collier J in Kitchen v Director of Professional Services Review under s83 of the Health Insurance Act 1973 (Cth) (No 3)[6] as follows:
· a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
· documents for production must be identified with reasonable particularity;
· the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings; there must be a legitimate forensic purpose for the production of documents;
· a mere “fishing” exercise can never justify the issue of subpoenas;
· 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; and
· the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.
OIPO submitted that the extent of the CFMMEU’s contentions relate to the date of OIPO’s incorporation and its association with other entities. OIPO submitted that the CFMMEU has not made any allegation of disparity between the classifications in which the voting cohort are employed and the classifications prescribed in the agreement, or any lack of experience in the work to be performed under the Agreement, and the conditions in the industry in which the work will be performed.
OIPO submitted that 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.[7] In this respect, OIPO submitted that an order for production of documents cannot be a substitute for discovery.[8]
OIPO submitted that the categories of documents, particularly categories four and five, amount to a ‘fishing expedition’ and are otherwise oppressive.
OIPO submitted that the CFMMEU’s bare assertions concerning OIPO’s incorporation and its relationship with other entities do not of themselves provide a proper basis to advance objections pursuant to s.188(1)(c) of the FW Act and the Production Applications are not a proper vehicle to determine whether such a proper basis exists.
OIPO submitted that the Production Applications be dismissed.
Relevant Legislative Provisions and Principles
Section 590 of the FW Act relevantly provides:
(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:
...
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC.
The principles applying to the issue of orders to produce documents under s.590(2)(c) of the FW Act are well established and were succinctly summarised by a Full Bench of the Commission in Kennedy v Qantas as follows:
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.[9]
(footnotes omitted).
I now turn to a consideration of each of the categories of documents.
Production Application directed to OIPO – Categories 1 and 4(A) and 4(B); Production Applications directed to the related entities – Categories 1 and 2.
I have had regard to the submissions of the CFMMEU, the AWU and OIPO and given consideration to the apparent relevance of this material to the issues in the substantive proceedings. The range of documents sought is broad and covers a period of almost 12 months.
Although the CFMMEU contends the categories of documents may be potentially relevant to an issue that might legitimately arise, beyond that bare assertion, the CFMMEU has not demonstrated that the documents sought are for the purposes of supporting a case which is intended to be advanced. In this respect, I accept the submissions of OIPO that these categories of documents amount to a ‘fishing expedition’ to explore if there is a supportable case.
In coming to this view, I have had regard to the material filed by OIPO in the substantive proceedings, which I was taken to by the CFMMEU. That material, although not admitted into evidence at this stage, reveals that OIPO is a joint venture entity between the Mineral Resources Group and three unrelated entities and was incorporated in order to commence mining operations pursuant to recently acquired and forthcoming regulatory approvals. This matter is, prima facie, distinguishable from the circumstances that arose in Karijini Rail.[10]
Accordingly, the Production Applications as they relate to these categories of documents are refused.
Production Application directed to OIPO – Categories 2 and 3.
I am satisfied that these categories of documents are relevant to whether the members of the voting cohort were employed at the relevant time/s for the purposes of any pre-approval steps and whether the voting cohort fell within the coverage of the Agreement.
However, I will amend the proposed categories of documents to require production of the employment contracts, letters of offer, or any other document which identifies the commencement date, the classification or position/job title and a description of the classification or position/job title, for each employee employed as of 21 December 2022, the time immediately before voting began.
Production Application directed to OIPO – Category 5(A)
I am satisfied that documents falling within the scope of category 5(A) are of apparent relevance to the issue of whether the voting cohort had a ‘stake’ in the terms and conditions of the Agreement such that they were able to give informed consent in relation to the full range of occupations and industries falling scope of coverage of the Agreement.[11]
However, I consider the proposed category to be too broad. I will amend the proposed category to limit the documents to any correspondence exchanged between OIPO and any one or more of the bargaining representatives which records an offer, counteroffer, or any response to an offer or counteroffer, during the period between 29 November 2022 and 14 December 2022.
Production Application directed to OIPO – Category 5(B)
This category of documents suffers from the same issues in relation to categories 4(A) and 4(B) in that the CFMMEU has not demonstrated that the documents sought are for the purposes of supporting a case which is intended to be advanced. In this respect, I accept the submissions of OIPO that this category of documents amounts to a ‘fishing expedition’ to explore if there is a supportable case.
The Production Application directed to OIPO, as it relates to this category of documents, is refused.
Conclusion
An order for the production of documents in line with the reasons set out in this decision will be issued to OIPO separately to this decision. OIPO will be ordered to produce the documents by 4:00pm on Thursday, 6 April 2023.
COMMISSIONER
Appearances:
A Pollock, of counsel for OIPO Pty Ltd.
J Patrick for the Construction, Forestry, Maritime, Mining and Energy Union.
C Dunne for the Australian Workers’ Union.
Hearing details:
2023.
Sydney (via Microsoft Teams video-link):
23 March.
[1] [2018] FCAFC 77 at [142].
[2] ANF v VHIA[2011] FWA 8756 at [12]-[13]; Coates Hire Operations Pty Limited v AMWU[2013] FWC 1585 at [19];
Seven Network Limited v News Limited (No 5) [2005] FCA 510 at [12]
[3]McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 at [35]; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 (Tamawood) at [12].
[4] Citing Bailey v Beagle Management Pty Ltd [2001] FCA 60.
[5] Citing Clerks (Alcoa) Case (1988)Print H2892.
[6] [2020] FCA 634 at [26]
[7] Citing Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847 (Kennedy v Qantas).
[8] Citing Tamawood.
[9] Ibid at [23].
[10] See Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Limited[2021] FWCFB 4522.
[11] See Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048.
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