Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 5642

[2020] FWC 5642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

Patrick Stevedores Holdings Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(B2020/579)

DEPUTY PRESIDENT BULL SYDNEY, 23 OCTOBER 2020

Application for an order requiring production of documents.

[1] On 22 October 2020, the Fair Work Commission (Commission) issued an order, which has been provided to the parties, requiring the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union) to provide to the Commission, documents, records and other information specified in the Schedule to the order. These are the reasons for the order issuing.

[2] On 21 October 2020, Patrick Stevedores Holdings Pty Ltd (Patrick) made an application pursuant to s.590(2)(c) of the Fair Work Act 2009 (the Act) for an order requiring production of documents in relation to matter B2020/579, being an application to suspend/terminate industrial action pursuant to s.424 of the Act.

[3] The proposed production order was directed to the CFMMEU, being the respondent in matter B2020/579. The order sought was opposed in its entirety by the CFMMEU.

[4] The draft order supplied by Patrick, as required under the Commission’s Rules, 1 set out five types of documents or communications that are sought. They can be briefly categorised as:

1. Documents regarding the decision of the CFMMEU to withdraw all industrial action against Patrick as advised in an email of 1 October 2020.

2. Documents relating to the authority of Mr William Tracey, Deputy National Secretary, CFMMEU – Maritime Union of Australia Division, to withdraw industrial action against Patrick.

3. Notices of protected industrial action issued by the CFMMEU since 1 March 2019 to DP World under the its various legal entities which operate in Sydney, Melbourne, Brisbane, and Fremantle.

4. Notices of protected industrial action issued by the CFMMEU since January 2019 to Sydney International Container Terminals Pty Ltd or Brisbane Container Terminals Pty Ltd.

5. Documents withdrawing or amending the effect of any notice produced under 3 or 4 above.

Grounds for production

[5] With respect to the category of documents sought under 1 and 2 above, Patrick stated that the CFMMEU relied upon protected industrial action having been withdrawn in early October 2020. As such, it is material to whether the withdrawal of such action was properly authorised in accordance with the CFMMEU rules and whether the withdrawal is liable to be countermanded by others, or whether the withdrawal of industrial action is a device to avoid an order issuing as sought in the s.424 proceedings.

[6] With respect to the category of documents sought under 3,4 and 5 above, Patrick stated that the documents relate to whether it can ameliorate the economic consequences of protected industrial action by subcontracting to its competitors.

[7] Patrick submitted that the evidence filed by the parties to date in the s.424 proceedings demonstrate a conflict in the understanding of industrial action being taken against Patrick’s competitors. Patrick stated that the documents sought are the best evidence of the actual state of affairs in relation to the capacity of Patrick to subcontract vessel calls.

CFMMEU grounds in opposition

[8] The CFMMEU contended that the application is an abuse of process, lacks a legitimate forensic purpose, is oppressive and a fishing expedition in circumstances where Patrick has no cogent evidence to justify continuing its s.424 application. It also contended that the timeframe associated with the proposed order for production of documents is oppressive.

[9] It was submitted by the Union that the application was made only three business days before the s.424 hearing, despite directions for the hearing being issued on 2 October 2020. Further, the Union submitted that the reasons provided by Patrick that the documents sought will help demonstrate matters relevant to probable industrial action, are not part of the grounds of the current application and an order can only legitimately require production of documents relevant to the issues that already arise in the proceedings.

[10] The Union also put that the documents sought appear to be irrelevant to the proceedings and are an attempt to uncover evidence that protected industrial action is probable. On the basis that protected industrial action subject to the application took place in September 2020, there can be no proper basis for seeking documents prior to that date, which includes back until January 2019.

[11] The Union submitted that the order sought requires production of documents disclosing internal deliberations of the CFMMEU, which is unjustifiably oppressive and that the documents sought are broad, vague and not particularised.

[12] With respect to notices issued in relation to protected industrial action for other employers, the Union contended that the proposed order would require a search of the CFMMEU’s records throughout Australia.

[13] In response to the CFMMEU’s contentions Patrick filed further submissions.

Consideration

[14] The jurisdiction of the Commission to make an order for the production of documents arises from s.590 of the Act, and in particular s.590(2)(c). The Act states at s.590:

590 Powers of the FWC to Inform Itself

....

590(2)...

(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWC;

[15] It is noted that the Commission will generally exercise its discretion in favour of an order for production of documents unless it appears that an order would be an abuse of process (see R v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation²).

[16] In exercising its discretion to issue an order to produce documents, the Commission, as stated by Munro J in Clerks (Alcoa) Case,³ will generally be guided by what applies in courts of law:

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.

...

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

...

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

[17] The issue of balancing the various rights of the parties was considered by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd⁴:

“If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.”

[18] It is accepted that an order should only extend to what is necessary for the requesting party to advance their case and not any other unrelated purpose that may lead to an abuse of process.⁵

[19] Subsequent to Patrick’s document production application, it has filed 6 an amendment to its initial application to include the contention that it is probable that protected industrial action in place prior to 2 October 2020 will recommence.

[20] The CFMMEU relies on the withdrawal of all industrial action on 1 October 2020 in arguing that the s.424 application must be dismissed. Patrick seeks the production of documents to establish that the withdrawal of industrial action is other than a temporary measure to defeat the application. I accept that this is a legitimate request in the context of seeking to establish the bona fides of the CFMMEU’s withdrawal of protected industrial action and whether it is in conformity with the rules of the CFMMEU. The order sought at (1) requires only documentation relating to the particular decision to withdraw industrial action, as notified on 1 October 2020, there is no requirement to disclose any internal deliberations of the CFMMEU.

[21] The capacity to utilise other stevedoring operators is a matter that Patrick rely upon in its s.424 application and evidence or otherwise of notified protected industrial action against the other relevant stevedoring operators is, therefore, a material consideration. As such, I do not consider it to be oppressive or irrelevant for such documents to be produced, including from the time frame requested.

[22] The documentation sought appears to have, prima facie, relevance to the issues raised by Patrick and, thus a legitimate forensic purpose is established so as not to be an abuse of process (See Trade Practices Commission v Arnotts Limited⁷). Further documentation concerning notices regarding protected industrial action at the named competitors would ordinarily be expected to be maintained in an ordered manner within the records of the CFMMEU.

[23] In the Commission’s view, the necessary relevance of the documents sought is made out by Patrick in seeking documents relating to the authority and status of CFMMEU withdrawal from taking protected industrial action.

[24] The state of protected industrial action taken by members of the CFMMEU at other stevedoring operations would appear to be directly relevant to Patrick’s ability to establish whether it may offset any protected industrial action by subcontracting to its competitors.

[25] The application has not been demonstrated to the Commission’s satisfaction to be akin to a ‘fishing’ exercise.

[26] I have, however, accepted that to require compliance within the timeframe proposed in the draft order would be oppressive, and the time for compliance has been adjusted on this basis.

DEPUTY PRESIDENT

2020
Sydney
23 October
Dealt with on the papers

Seyfarth Shaw Australia Solicitors for Patrick Stevedores Holdings Pty Ltd

Slater and Gordon Lawyers Solicitors for the Construction, Forestry, Maritime, Mining and Energy Union

Printed by authority of the Commonwealth Government Printer

<PR723777>

 1   Rule 54 Order for Production of Documents

2 (1981) 147 CLR 471, at p 483 (Mason J).

3 [1988] AIRC 391 Print H2892, at p 2.

4 [1984] 1 NSWLR 710, at 719-720.

5 Harman v Secretary of State for the Home Department [1983] 1 AC 280, at 308; Riddick v Thames Board Mills Ltd [1977] QB 881, at 300 (per Lord Denning MR).

 6   Filed on 22 October 2020.

7 (1989) 88 ALR 90, at 103.