SPI Electricity Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2012] FWA 4350

[2012] FWA 4350

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

SPI Power Net Pty Ltd; SPI Electricity Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/3287)

COMMISSIONER BISSETT MELBOURNE, 23 MAY 2012

Alleged dispute concerning the introduction of change.

[1] An application has been made for Fair Work Australia to deal with a dispute pursuant to the SPI PowerNet & SPI Electricity - ETU Enterprise Agreement 2010-2013 (the Agreement). During the hearing on matters with which this decision is concerned it became evident that SP AusNet. The originally named Applicant, is not a party to the Agreement and therefore is unable to make any such application. In accordance with s.586 of the Fair Work Act 2009 (the Act) I determined that the application be amended to indicate that it is made by SPI PowerNet Pty Ltd and SPI Electricity Pty Ltd (herein after referred to as SP AusNet or the employer).

[2] The matters in dispute (discussed further below) have been subject to discussions between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), as representative of the employees, and SP AusNet. They have also been subject to a number of conferences before me in an attempt to resolve the matter. These meetings and conferences have failed to settle the matter and directions have been issued by me in relation to arbitration of the matter in accordance with the dispute settling procedures of the Agreement.

[3] The CEPU have made an application for the Tribunal to issue an order for production of documents in accordance with s.590(2)(c) of the Act. The order specifically sought the production of 33 separate classes of documents. The content of that order was subject to a hearing on 17 May 2012. SP AusNet objects to the production of each of the classes of documents on a number of grounds. This decision deals with my reasons for the order that I have determined should be issued.

The scope of the dispute to be settled

[4] Before the scope of any order to produce documents can be determined, the scope of the dispute that the Tribunal is being asked to settle needs to be understood as it is within this context that any such order should be issued. Understanding the scope of the dispute will reduce the chances of an application for orders to produce documents becoming onerous. It should be stressed that my decision with respect to the scope of the dispute is an interim view that I have formed, based on submissions made in respect to the application for these orders, for the purposes of finalising the order for production of documents. The scope of the dispute to be settled will be subject to further consideration following the hearing of detailed arguments and evidence from the parties with respect to the dispute proper.

[5] The CEPU submits that the scope of the arbitration is one over the proposed changes subject to consultation under clause 68 of the Agreement. As such, the CEPU says the Tribunal ‘should not feel uneasy in determining whether the change should go ahead and, if so, on what terms.’ 1 The CEPU submits that it is open to the Tribunal to inquire into whether the proposed change should occur; if it is to occur, whether the outsourcing should go to BMC (the successful tenderer); and determine the effect of the decision on the employees.

[6] The company, on the other hand, says that the dispute is not about whether it is able to outsource work and reduce the size of its workforce but rather that the Tribunal’s task ‘is to resolve how the reduction is to be effected.’ 2 (emphasis in original)

[7] The dispute primarily arises from two parts of the Agreement. The first issue in dispute arises from the operation of clause 68 of the Agreement, which states:

68. INTRODUCTION OF CHANGE

68.1 It is recognised that from time to time the technology, business structures and processes of the companies will be changed to allow the companies to operate in a changed environment, which requires it to remain an efficient and cost effective business.

68.2 When the companies have made a decision to introduce changes in production, workplace location, program, outsourcing, organisational structure or technology, or any other change that will have an effect on employees or that will impact on employees, the companies will notify the employees who may be affected and the Unions.

68.3 The companies shall discuss with the employees affected and the Unions, the effects the changes are likely to have on employees and measures to minimise their impact on employees and shall give prompt consideration to matters raised by employees and the Unions. Implementation of the proposed changes will not be effected until agreement is reached between the parties.

68.4 If agreement is not reached, either party may refer the matter in accordance with the Disputes Resolution Procedure of this Agreement.

[8] SP AusNet have determined to outsource the primary maintenance work in the Eastern Region (ERPM) (this is the change the company have sought to introduce as contemplated by clause 68.2). Having made the decision to introduce such a change, SP AusNet sought to consult with its employees affected by that change (clause 68.3). The change over which the employer consulted with employees is the change identified under clause 68.2. No agreement has been able to be reached between the parties through this consultation (clause 68.3). As a result, the change (that is the decision to outsource) could not be effected. SP AusNet has, as a consequence, notified a dispute to the Tribunal in accordance with clause 68.4 of the Agreement.

[9] Having invoked clause 68 of the Agreement, it is apparent that the ‘matter’ now being dealt with in accordance with the Disputes Resolution Procedure is the ‘matter’ subject to consultation under the clause, that is, the decision to introduce change through outsourcing some specified work of SP AusNet.

[10] Whilst it might be argued that the matter in dispute is the decision to outsource the work to BMC, such a construction would require a narrowing of the matter subject to consultation. This would imply that the first decision made by SP AusNet - to outsource some work - was not a matter over which the employer was required to consult with employees or their union but that it was only required to consult about who it might outsource to. Such a narrowing of the matter in dispute would be to deprive employees and their of the opportunity to raise matters with the employer that the employer would then be required to give ‘prompt consideration’ to with respect to the broader issues of outsourcing.

[11] A secondary (but no less important) matter in dispute relates to the capacity and mechanism whereby the employer may reduce the workforce size as a result of the decision taken to outsource some work.

[12] Clause 62 of the Agreement states:

62. WORKFORCE SIZE

62.1 The parties agree that any reduction in workforce size will be achieved by natural attrition and or voluntary departures. Any departure from this approach will require prior negotiations and agreement between the parties.

62.2 In the event that this clause becomes unenforceable for any reason and an employee is forcibly made redundant during the life of this agreement, then the parties will negotiate a redundancy package of no less than the prevailing industry standard. If the parties are unable to agree on the redundancy package, the matter will be dealt with under the dispute resolution procedure.

[13] There is a dispute between the parties as to the meaning of clause 62.2 in particular and the extent to which it allows the employer to make an employee involuntarily redundant, that is how the employer can give effect to any reduction in workforce size arising from the change identified above.

[14] I therefore find, on an interim basis and for the purpose of dispensing with the application for an order, that the matters in dispute are firstly the decision by SP AusNet to outsource the primary maintenance work in the Eastern Region and secondly, how, given the outsourcing, a reduction in workforce can be effected.

The documents sought

[15] The CEPU have sought production of a wide ranging group of documents. It says that the documents are relevant to the scope of the arbitration as they put it to me and matters it seeks to pursue in that arbitration including:

• whether the outsourcing makes good business sense;



• whether the outsourcing will have a detrimental effect on employees;



• whether BMC is the appropriate company for the changes;



• whether SPI has ulterior motives for the outsourcing;



• the reasons for the change; and



• whether the changes are justified.

[16] Whilst the CEPU put forward these matters, the documents sought must be considered in light of the matters I have outlined above as constituting the scope of the dispute before me.

[17] The CEPU argues that the principles relevant to the Tribunal in assessing the relevance of the documents sought are set out in Apache Northwest and Western Power 3(Apache). SP AusNet argue that the approach the Tribunal should adopt in relation to the exercise of discretion is properly summarised in Re Clerks (Alcoa of Australia - Mining and Refining) Consolidated Award 1985.4

[18] The approach to be taken in such a matter was conveniently set out by Ross VP (as he then was) in Patrick Stevedores No. 2 Pty Limited 5 where his Honour said:

The Commission’s power to summons witnesses and compel the production of documents is set out in s.111(1)(s) of the Workplace Relations Act 1996 (the Act). The power is discretionary and not mandatory in the sense of giving any person, intervenor or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.

In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation, Justice Mason as he then was, discussed the use of the discretion to issue a summons and said:

“When application is made for the issue of a summons the Commission has a 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.”

The approach the Commission has adopted in relation to the exercise of its discretion is conveniently summarised by Justice Munro in the Clerks (Alcoa) case [Print H2892] as follows:

“The Commission’s power to issue a summons for production of documents or information is to be found in section 41(1)(n) of the Conciliation and Arbitration Act 1904 and Regulation 21 of the Conciliation and Arbitration Act Regulations. Sections 186 and 187 of the Act are relevant, allowing the direction of evidence in certain cases, and prescribing for the inspection of documents produced pursuant to summons mandatory in the sense of giving any person, intervenor or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.

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 document. 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. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. 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. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). 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 carryout 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.”

His Honour cited a number of authorities in support of the observations he made.

The approach outlined by his Honour has been applied by other members of the Commission in subsequent decisions. I have applied the approach outlined to the determination of the matter before me. In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.

The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted.

(Footnotes omitted)

[19] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd 6Cowdroy J considered the test to be applied in setting aside a subpoena. After considering a number of authorities his Honour found at [13] that:

The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

[20] SP AusNet also referred me to a decision of the Supreme Court of Victoria in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria 7 where the principles to be followed in determining if a party is entitled to access documents subject of a subpoena are summarised. I do not replicate those principles here but indicate that they do not conflict with any of the matters outlined above. In any event, I have had regard to the principles outlined in that decision in determining the application for an order to produce in this matter. Even so, care needs to be taken not to approach the assessment of a request for production of documents as an exercise of each document having to receive an appropriate number of ‘ticks’ against a set of listed principles. There is a judgement to be made in balancing of those principles in the above mentioned decision.

[21] SP AusNet also put that, in addition to the above principles, any order should not be so wide as to require the person to whom the order is addressed to make a judgement as to which of the possessed documents are relevant documents and that the order must not be oppressive. 8

[22] In the decision in Apache it was found (at page 43) that the relevance of documents ‘may lie in giving rise to a line of enquiry which is relevant to the issue before the trier of facts. They will frequently be relevant for the purpose of meeting the opposing case, as for example by way of cross examination.’ 9 (emphasis added)

[23] In determining each of the classes of documents sought in the draft order I have taken into account the scope of the dispute that is to be arbitrated; the apparent relevance of each of the documents sought (keeping in mind that the relevance may be in meeting the opposing case); whether the documents sought are identified with enough specificity; whether the production of the documents would be oppressive; and whether the documents identified amount to a ‘fishing expedition.’

[24] The main issue in contention between the parties as to the documents is the relevance, lack of forensic purpose and lack of specificity of the documents sought to be produced. SP AusNet also argue that some of the documents do not exist and some of the documents have already been supplied.

[25] Whilst matters as to the confidentiality of the material sought to be produced have been raised, I consider that these matters can be resolved by appropriate orders. To this end I have asked the parties to consult on the form of such orders. Orders as to the confidentiality of the material produced pursuant to the production order shall be issued along with any order to produce.

[26] I have found above (on a interim basis) that the matter subject to arbitration goes to the change proposed by SP AusNet - that is, the decision to outsource the specified work along with the mechanism by which any resulting staffing reductions may be achieved. Given this, it is my opinion that documents that go to the reason for deciding to outsource and if the outsourcing is ultimately to be implemented, along with matters associated with mechanisms of reducing staff, are potentially relevant documents such that an order to produce those documents should be made (given that they fall within the order sought). The restriction on seeking documents as a fishing exercise or as a means of determining if a case exists at the same time remain relevant considerations.

[27] Following the hearing with respect to whether or not I should issue the orders sought, the CEPU provided amended orders. Those amended orders are considered below.

[28] During the hearing SP AusNet indicated that there were some documents sought by the CEPU that SP AusNet had previously provided to the CEPU and a number of documents that SP AusNet says do not exist. Regardless of this, I have considered each of the orders sought by the CEPU and determined each of these. If SP AusNet still do not have any documents mentioned in the order it only need restate this on the return of the orders.

[29] I now consider each of the classes of documents sought by the CEPU:

1. The offers to tender for all bidders for the work concerning the Primary Maintenance function of SP AusNet’s transmission and distribution network in the Eastern Region (‘the ERPM works’).

I consider this class of documents relevant to the question of the decision to outsource. The document so produced however does not require identification of who the offer was made to.

2. All documents created in or after 2011 containing any references to any performance, productivity and/or efficiency issues with respect to employees who perform the ERPM works.

I consider this material relevant to the matters in dispute and potentially to the reason taken to outsource the work in question.

3. All correspondence in any way related to the proposed tender for the ERPM works between SP AusNet and companies that were given an offer to tender for the ERPM works, created in or after 2011.

I do not consider this material relevant to the matters in dispute. This request lacks specificity. This request to issue an order for the production of these documents is refused.

4. All correspondence in any way related to the tender for the ERPM works after the tenders for the ERPM works were submitted between SP AusNet and companies that were given an offer to tender for the ERPM works.

I do not consider this material relevant to the decision to outsource the work in question. The request for an order with respect to these documents is refused.

5. All correspondence in any way related to the proposed tender for the ERPM works between SP AusNet and BMC after the tender for the ERPM works was determined.

This request lacks specificity and is refused.

6. All documents containing references or communications, including deliberations, about the reasons, need and/or want to perform an Expression of Interest (‘EOI’) and/or tender process for the ERPM works, created in or after 2010.

I consider this class of documents relate to the reason to outsource the work in question.

7. All documents created in or after 2011 containing any details of any other contemplation or possibility of SP AusNet outsourcing other works in Victoria which are currently performed by SP AusNet employees.

This request goes to matters well beyond the scope of the dispute such that it may be considered a fishing exercise. The request for an order is refused.

8. All documents setting out what factors were being judged to determine if the EOI for the ERPM works was to go ahead.

I consider these documents relevant to the matter in dispute.

9. All documents created in or after 2011 setting out the benchmarking of the East station against other stations’ areas and the source documents for the benchmarking results.

I consider these documents relevant to the matter in dispute.

10. All documents containing safety records of the tendering companies for the ERPM works, created in or after 2011.

I do not consider this material is relevant to the matters in dispute or the determination of those matters. This request is refused.

11. All documents containing the history and experience of the tendering companies in work fields of the same nature as the ERPM works, and their performance in such.

I do not consider this material relevant to the matters in dispute. This request is refused.

12. All correspondence in any way related to the proposed EOI or tender for the ERPM works created in or after 2011 between SP AusNet and BMC prior to the tender for the ERPM works.

I consider this material relevant to the matters in dispute

13. The PowerPoint presentation delivered by Martin Legg to Stations Primary group on future workload and past performance, in approximately October 2011.

I consider this material relevant to the matters in dispute

14. All documents containing details of the previous year’s work history regarding allocated work/completion results for the ERPM works.

I consider this material relevant to the matters in dispute

15. All documents created in or after 2010 containing details of previous ideas to improve efficiencies raised by the workgroup and/or the refusal by SP AusNet management to accept such.

I consider this material relevant to the matters in dispute.

16. All tenders submitted by companies for the ERPM works, including any amendments.

I consider this material relevant to the matters in dispute but only to the extent that it relates to BMC. The order will be amended to restrict this order to the BMC tender.

17. (deleted)

18. (deleted)

19. The terms and conditions of the tender process for the ERPM works.

I consider this material relevant to the matters in dispute.

20. All documents recording discussions and/or details of the proposed labour levels proposed by BMC and Powercor, during and after the completion of the tender process.

I consider this material relevant to the matters in dispute but only to the extent that it relates to BMC. The order will be amended accordingly.

21. All documents recording discussions and/or details of the availability roster proposed by BMC, during and after the completion of the tender process.

I consider this material relevant to the matters in dispute.

22. All documents that have been provided to BMC containing any personal details or profiling about the existing SP AusNet employees.

I do not consider this material relevant to the matters in dispute. The request is refused.

23. All documents in any way related to the tender for the ERPM works that detail a comparison between the man-hours allocated to a job at SP AusNet and the corresponding man-hours allocated by BMC.

I consider this material relevant to the matters in dispute.

24. All documents detailing what unit rates the tenders were compared against.

I consider this material relevant to the matters in dispute.

25. All documents in any way related to the tender for the ERPM works detailing any assistance that has been given by SP AusNet to bidders.

I consider this material relevant to the matters in dispute but only to the extent that it relates to BMC. The order will be amended to restrict this order to the BMC tender.

26. All previous invoices/accounts to work that have been performed by BMC for SP AusNet, created in or after 2010.

I do not consider this material relevant to the matters in dispute. This request is refused.

27. All documents detailing any previous request by BMC to be trained by SP AusNet personnel for any work to be performed, created in or after 2011.

I do not consider this material is relevant to the matters in dispute. This request is refused.

28. All documents containing any offer to train BMC personnel by SP AusNet, created in or after 2011.

I do not consider this material relevant to the matters in dispute. This request is refused.

29. All documents containing job offers made to SP AusNet personnel by BMC, created in or after 2011.

I consider this material relevant to the matters in dispute.

30. All documents containing any terms and conditions for BMC to accept SP AusNet personnel on acceptance of being the preferred bidder.

I consider this material relevant to the matters in dispute.

31. All documents containing any classification comparisons of affected SP AusNet personnel in comparison to BMC levels, created in or after 2011.

I consider this material relevant to the matters in dispute

32. All documents containing the current work structure of BMC, created in or after 2011.

I do not consider this material relevant to the matters in dispute. This request is refused.

33. All documents containing draft or proposed offers of employment by BMC to SP AusNet employees, created in or after 2011.

I consider this material relevant to the matters in dispute.

[30] An order to this effect shall be issued in conjunction with this decision.

COMMISSIONER

Appearances:

B Murray on behalf of the Applicant.

G Borenstein of the Respondent.

Hearing details:

2012.
Melbourne:
May 17.

 1   Exhibit CEPU1, paragraph 8.

 2   Exhibit SP1, paragraph 11.

 3 (1998) 19 WAR 350.

 4   AIRC Print H2892 (2 June 1988).

 5   AIRC Print P8680 (6 February 1998).

 6 [2011] FCA 181.

 7 [2011] VSC 0003.

 8   Exhibit SP1, paragraphs 4-5.

 9 (1998) 19 WAR 350.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR524020>