Santos Ltd v Australian Workers' Union, The

[2016] FWC 1560

[2016] FWC 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238 - Application for a scope order

Santos Ltd
v
Australian Workers' Union, The; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; GLNG Operations Pty Ltd
(B2015/1744)

Australian Workers' Union, The
v
Santos Limited
(B2015/1558)

COMMISSIONER SIMPSON BRISBANE, 10 MARCH 2016

Application for Order requiring Production of Documents

[1] On Monday 7 March 2016 Ashurst Australia, as the representative of Santos Ltd in matters B2015/1558 and B2105/1744, both matters listed for hearing next week in Gladstone on 14, 15 and 16 March, filed a Form 52 application seeking four separate orders that The Australian Workers’ Union (AWU), the other party in the proceedings in Gladstone, produce certain documents.

[2] The form of the orders sought were as follows;

1. The blank questionnaire that members of the Australian Workers’ Union were asked to complete in relation to these proceedings.

2. All of the completed questionnaires including, for the avoidance of doubt:

(a) all the questionnaires that formed the basis of the witness statements filed by the AWU in the proceedings; and

(b) all other questionnaires.

3. All documents (including emails) that were circulated or sent to persons along with the questionnaire.

4. All documents (including emails) about, or related to, the questionnaire, including drafts of the questionnaire.

[3] Ashurst provided to the FWC with the application for orders a copy of correspondence it had sent to the AWU on 1 March 2016 requesting that the AWU provide Ashurst with the information that was subsequently described in the orders sought, and also a copy of a response from the AWU of 4 March advising that it did not agree to provide the information requested.

[4] In the ordinary course when an application for orders for production are received the FWC has available a number of options as to how the application is dealt with. Those options include that the FWC may granted the order in knowledge that it is open to the party at whom the order is directed to seek to have the order set aside. The FWC may refuse to issue the order. The FWC may also seek from the party applying for the order reasons as to why the order should be granted. Alternatively the application can be listed for a hearing or conference.

[5] On receipt of the application on Monday 7 I determined to adopt the third course set out above and directed my associate to forward email correspondence to Ashurst, copied to the AWU requesting that Ashurst provide written reasons as to why the orders should be granted.

[6] On Wednesday 9 March, in response to the FWC request, Ashurst sent correspondence to the FWC copied to the AWU providing the following reasons as to why the orders were sought;

“Our client has been informed by a number of its employees that the AWU has, for the purpose of preparing witness statements in these proceedings, utilised written questionnaires which have been prepared by the AWU and completed by its members.

Any answers given by the witnesses to the questions contained in such a questionnaire that were relied upon in the preparation of their witness statements will be of apparent relevance to matters of fact in issue in these proceedings.

In addition any document issued by the AWU to employees together with the questionnaires will be of apparent relevance to matters of fact in issue in the proceedings.”

[7] Later on 9 March the AWU sent correspondence to the FWC, copied to Ashurst which included the following;

“We do not deny that we utilised questionnaires for the purpose of preparing witness statements for these proceedings. We do not have the luxury of utilising Senior Counsel, Junior Counsel and a top tier law firm to prepare our witness statements. Therefore we utilised our resources in the best way possible. I am sure the people that gave witness statements on behalf of Santos did not write them themselves.
The statements were written from the contents of the questionnaires. By virtue of the statements, the contents of the questionnaires have been provided to the Commission already by way of signed statement.

The employees that gave the statements did so of their own free will.

There is nothing that will be gained from the production of the questionaries. If Santos are concerned about the contents of the statements then they are at liberty to test the veracity of the statements under cross examination.”

[8] Given the contest over the issue I deemed it appropriate to list the matter for telephone hearing on 10 March in order to provide both parties an opportunity to say anything further they wished to on the issue before determination.

[9] Mr Humphreys of Ashurst appeared for Santos. Mr Humphreys correctly described the relevant power under under section.590 (2)(c) of the FW Act as a broad discretionary power and made reference to paragraph 11 of the decision in Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2011] FWA 8756 which cited Queen v Marks; Ex parte Australian Building and Construction Employees and Builders Labourers’ Federation, where Justice Mason said as follows:

“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”

[10] Mr Humphreys emphasised in his submission the presumption in these matters being in favour of the applicant for the order.

[11] Mr Humphreys went on to refer to the decision of Munro in Re Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award 1985. He submitted that the form of the orders sought by Santos conformed to the level of particularity as described in the decision in Re Clerks. I would accept that is the case.

[12] In reference to Re Clerks Mr Humphreys also submitted that the documents sought were capable of being relevant to an issue that might legitimately arise on the hearing of the matters in dispute, given the way in which the evidence was brought about.

[13] Mr Humphreys also submitted the orders sought would not be oppressive as the relevant documents would be in the possession of the AWU. Mr Humphreys referred to the principals summarised by Justice Greenwood in McIlwain v Ramsay Food Packaging Pty Ltd and others (2002) 221 ALR 785 which govern the courts in relation to the discovery of documents, and specifically the test as to whether the issue of the material appears to have some relevance in the sense of throwing light on at least some of the issues in the principal proceedings. Reference was also drawn to the decision of Stone J in Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588, to support the submission that the question of whether an order should be set aside comes down to whether the action is required to prevent an abuse of process.

[14] Mr McKernan for the AWU submitted that the application for production was frivolous, vexatious or otherwise an abuse of process. Mr McKernan submitted that he was aware 6 lawyers were involved in the matter for Santos and he had sole carriage of the matter for the Union. He submitted that despite having the AWU’s witness statements since 5 February Santos had waited a number of weeks before first raising the request for production with him on 1 March, a time Santos was aware he was required to be working on material to be filed in reply in accordance with FWC directions. Mr Humphreys countered that the application was made shortly after Santos became aware of the questionnaires.

[15] Mr McKernan also submitted that given the AWU had filed 43 witness statements, the breadth of documents that would be required to be produced under the order was not a small set of documents as submitted by Mr Humphreys. He also referred to one of the principals identified by Greenwood J as set out in the decision of Commissioner Jones in ANF v VHIA in paragraph 13 which reads as follows:

“(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be for the purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris [1920] 1 KB 659, 666).”

[16] Mr McKernan submitted that the questionaries do not go the substantive issue in the substantive proceedings, and that the witness statements filed do that.

CONSIDERATION

[17] The determination of this matter requires an application of the relevant legal principals in the context of the issues that may arise in the substantive proceedings. This is informed by the particulars of two competing scope order applications made under s.238.

[18] In brief the AWU seeks a scope order that includes six different functional categories of employees engaged at the Santos LNG Plant, and the Santos counter application proposes a scope order that includes three of those functional categories of employee as sought by the AWU application, but excludes 3 other functional categories as sought by the AWU.

[19] On 5 February 2016 the AWU filed 43 witness statements in support of its scope order application. One of those statements is from an official of the AWU, the remaining 42 from employees of Santos employed at the LNG Plant at Curtis Island. Each of the 43 witness statements filed by the AWU is signed and witnessed by either a Lawyer or a Commissioner for Declarations. The statements are, with a couple of exceptions, dated from late January to early February 2016.

[20] The 42 employee statements contain some standardised language consistent across the statements and other language unique to each particular statement. The AWU readily concedes it used a questionnaire to assist in the drafting of statements. It is not uncommon in this jurisdiction for the commission to receive multiple statements from a party conducting a case in an industrial matter that includes some commonality of language in the drafting of statements filed. It should be remembered the Industrial Officer conducting the case for the Union is based in Brisbane and the witnesses are working in an LNG Plant based in Gladstone. It is also well understood that FWC is not bound by the rules of evidence and procedure but is bound to ensure parties are afforded procedural fairness.

[21] If Santos harbours concerns about the nature of the statements filed they are well represented, having been granted permission to be legally represented, and will be represented by Senior Counsel despite objection from the AWU to the granting of leave. Santos was served with the statements in accordance with FWC directions over one month ago on 5 February. Santos will have the opportunity to cross examine any witnesses called. Santos will also have the opportunity to make submissions as to weight that should be attached to statements relied upon in the AWU case.

[22] The nature of the competing applications concern the scope for bargaining between the parties and necessarily involves considerations under s.238 of the Act. From having read the witness statements filed by both parties it would appear the primary focus of the parties (but by no means necessarily the only focus) will be the considerations contained in s.238(4) and s.238(4A). This is not a case where the genesis of the issue in dispute or the central issue in dispute revolves around the credit of a particular witness or witnesses, as is often the case for example in an unfair dismissal case. This is a case which concerns a disagreement over the scope of bargaining for an enterprise agreement.

[23] I am not persuaded that the documents sought have any apparent relevance to the facts in issue. As was stated by the AWU, the witness statements go to the substantive issues in the principal proceedings and Santos is at liberty to test the veracity of the statements under cross examination if it wishes to do so. The issues in contest can be addressed by reference to the material filed, and does not require the production of questionnaires or emails exchanged between witnesses and their representatives for the purposes of developing the witness statements that will be relied upon. It does not appear to me that the production of this material would throw any further light on matters in the principal proceedings.

[24] I am also inclined to the view that the demand for production of the particular documents sought, tends to fall into the category of a fishing expedition, rather than documents that will provide evidence to support Santos’ case. There has been no suggestion of any specific allegation of wrongdoing by anyone in the preparation of the statements. It is also worth noting that in the event of an application by a party to demand production of documents used in the preparation of witness statements with the assistance of a lawyer, it is to be expected that such an application would be resisted on the basis of legal professional privilege.

[25] I am also concerned that, given the protections already provided to the parties in this matter by the requirement for parties to file statements and submissions in advance, the requirement for witnesses to swear or affirm their statements before giving evidence, and the ability of the opposing parties to cross examine each other’s witnesses, the addition of further unnecessary steps in the handling of the matter such as the orders sought here, are unhelpful and inconsistent with s.577 of the FW Act that requires that the FWC must perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.

[26] For the reasons set out above I do not intend to issue any of the four orders sought and dismiss the application.

COMMISSIONER

Appearances:

Mr I Humphreys Ashurt Australia for Santos Ltd

Mr T McKernan The Australian Workers’ Union

Ms K Inglis The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Hearing details:

Brisbane

March 10

Printed by authority of the Commonwealth Government Printer

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