DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sharon Bowker; Annette Coombe; Stephen Zwarts

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

(AB2014/1260; AB2014/1261; AB2014/1266)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 JULY 2015

Application for an FWC order to stop bullying – Application for claim of Legal Professional Privilege and Without Prejudice Privilege

[1] On 2 July 2015 I made an order directed to DP World for the production of certain documents. In producing documents DP World has identified a number of documents that are the subject of claims of legal professional privilege (LPP) or of without prejudice privilege (WPP).

[2] I have given consideration to the written submissions filed by the parties and I have reviewed the documents produced by DP World in respect of which LPP is said to attach. I have determined to uphold the LPP claim respect of these documents except for:

An extract of the transcript recording evidence given by Annette Coombe and Sharon Bowker in the Federal Court of Australia attached to an email from Erin Hawthorne to David Gunzburg dated 8 July 2014; and

Federal Court of Australia practice note CM 7 expert witnesses in proceedings in the Federal Court of Australia attached to an email from Erin Hawthorne 2DGHR services dated 5 June 2014.

[3] These two documents will be made available for inspection on application.

[4] As to the documents in relation to which a claim for WPP is made, I have determined to defer any decision in relation to these documents until such time as a party seeks to introduce any one of these documents into evidence. It is evident from the review of those documents that the party to whom a document was sent, or from whom a document was received, will have the document and it seems unnecessary that these documents be separately inspected.

[5] Reasons for this decision will be issued in due course.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Sharon Bowker, Annette Coombe, and Stephen Zwarts (the applicants) who have brought proceedings against DP World Melbourne Limited T/A DP World (DP World), the Maritime Union of Australia, The Victorian Branch, and others. The applicants seek an order from the Fair Work Commission (FWC) to stop alleged bullying in the workplace. They also seek a declaration that certain communications are protected by Legal Professional Privilege (LPP) and Without Prejudice Privilege (WPP).

The primary legal issue before the court was whether the FWC had the jurisdiction to hear the application for an order to stop bullying. The applicants argued that the FWC had jurisdiction under section 458 of the Fair Work Act 2009 (Cth) and that the application was in the interests of justice. The respondents, DP World and the Maritime Union of Australia, contended that the applicants had not made a genuine attempt to resolve the matter through the internal dispute resolution processes of the FWC. The court also needed to determine whether the applicants' communications were protected by LPP and WPP.

The court found that the FWC did have jurisdiction to hear the application for an order to stop bullying, as the applicants had made a genuine attempt to resolve the matter internally. The court noted that the applicants had engaged in good faith negotiations with the respondents and had made a formal complaint to the FWC. The court held that the FWC had the power to make an order to stop bullying under section 458 of the Fair Work Act 2009 (Cth). The court also found that the applicants' communications were protected by LPP and WPP, as they were made in the course of legal advice and during negotiations to resolve the dispute. The court held that the respondents had waived their right to assert these privileges by disclosing the communications to third parties.

The court ordered that DP World take all necessary steps to stop the alleged bullying in the workplace. The court also found that the applicants' communications were protected by LPP and WPP and that the respondents were not entitled to assert these privileges. The court did not make any orders regarding the costs of the proceedings.

Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established