Svitzer Australia Pty Ltd

[2022] FWC 2186

[2022] FWC 2186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Svitzer Australia Pty Ltd

(AG2022/123)

DEPUTY PRESIDENT EASTON SYDNEY, 17 AUGUST 2022

Application for termination of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 – application for Orders for Production – documents relating to the Applicant’s motivations and subjective intentions in making the application – overlap between contested and uncontested categories – no allegation of abuse of process – no apparent relevance – orders to be made only on uncontested categories.

1. Svitzer Australia Pty Ltd has applied to the Fair Work Commission to terminate the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016. Svitzer’s application is resisted by the three unions covered by the agreement. Two Union Respondents have sought further Orders for Production of documents and most categories are not contested. However both Unions seek production of documents going to Svitzer’s motivation or reasons for making its application and those categories are contested.

1. I decline to make orders regarding the contested categories and in this decision provide my reasons in an abbreviated form. Parties have liberty to apply ask for a more fulsome statement of reasons.

1. In the substantive proceedings Svitzer argues that the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the Agreement) should be terminated pursuant to s.226 of the Fair Work Act 2009 (the FW Act). Amongst other things Svitzer submits that terminating the Agreement will:

(a)have an overall positive impact on employment, as it will facilitate longer term sustainable employment within the various ports in which Svitzer operates;

(b)allow Svitzer to work towards employing a more diverse workforce, particularly women, and providing training opportunities for them;

(c)over time make Svitzer more competitive, reducing its operating costs and also therefore the costs incurred by the customers who utilise Svitzer’s towage services;

(d)contribute to the competitive nature of the marine towage industry; and

(e)have a positive impact on the wider economy; and

(f)facilitate the achievement of the objects of the FW Act, in particular those expressed in s.3(a),(b),(c) and (f).

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Australian Institute of Marine and Power Engineers (AIMPE) seek orders for production. Most categories of documents sought are not opposed.

1. The fundamental disagreement between the parties relates to whether Svitzer should be ordered to produce documents going to its “strategy” or “reasons” for making the current application. This disagreement is not the first disagreement regarding orders for production – in Application by Svitzer [2022] FWC 1438 I accepted, rejected or amended contested categories of documents sought by the third union party in the matter, the Australian Maritime Officers’ Union.

1. The following categories sought by the CFMMEU are not opposed:

   “2. Documents recording the notification referred to at paragraph 45 of the True Statement.

3. Documents recording the applicant’s industrial strategy in the event that the application for termination is granted.”

1. Similarly, the following categories sought by the AIMPE are not opposed:

“1. Any Document:

…

b. which identifies, canvasses or considers options for the operation of Svitzer’s business in Australia following termination of the Current EA;

…

d.        which discusses or considers the workplace arrangements (including industrial instrument) which will apply to the workforce currently covered by the Current EA if the Current EA is terminated;

e.         records, discusses or considers the proposed rostering and roster notification practices to be adopted if the Current EA is terminated;

f.         records, discusses or considers the costs including labour costs to be saved if an application to terminate is successful.”

1. In determining the substantive application I will consider whether it is appropriate to terminate the Agreement taking into account all of the circumstances including the likely effect on employees, Svitzer and the unions (per s.226(b)(ii)). In this regard Svitzer accepts that for present purposes documents relating to the consequences for Svitzer or its employees if the Agreement is terminated have an apparent relevance.

1. As can be seen from the above categories, documents where Svitzer has recorded, identified or discussed particular consequences that would arise if the Agreement was terminated will be produced (if they exist).

1. These categories capture documents that are likely to evidence potential reasons for why Svitzer has made its application – insofar as it has or could be said that Svitzer made its application because of consequences it thinks will follow if the application is successful.

1. There are three categories of documents that are contested:

(a)Internal communications recording the reasons for bringing this application, including board minutes, briefing notes, strategy notes, memoranda and presentations produced by, sent to, or provided to members of applicant’s management in the period from the unsuccessful vote on a proposed enterprise agreement as referred to at paragraphs [44] and [225] of the statement of Deniz True of 9 March 2022 to the filing of this application [sought by the CFMMEU];

(b)All documents recording Svitzer’s industrial or workplace relations strategy relating to the termination of the Current EA including any briefing note, strategy note, memorandum, presentation or board minute prepared for or provided to a member of the Svitzer Senior Leadership Team [sought by AIMPE]; and

(c)All documents which discusses, proposes or canvasses the termination of the Current EA [sought by AIMPE].

1. As a matter of due administration of justice the CFMMEU and AIMPE are entitled to press for all relevant material to be available to enable them to advance their case. As the authorities make clear, if documents or categories of documents have an apparent relevance to an issue in the proceedings, then in the ordinary course they must be produced (per Secretary of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] and Esso Australia Pty Ltd v AWU & Ors[2017] FWCFB 2200 at [6]).

1. There is likely to be considerable overlap between documents that fall within the uncontested categories and documents that fall within the contested categories. In particular, documents that record the strategy behind, or the reasons for, Svitzer’s application to terminate the Agreement are likely to contain discussion or consideration of the workplace arrangements that will apply if the Agreement is terminated, the costs including labour costs to be saved if the Agreement is terminated, options for the operation of the business, and so on. It is possible that Svitzer developed its strategy, or made its application, without any consideration of the consequences for its business, but this seems unlikely.

1. The contested categories therefore need to be understood in the light of the likely overlap with the uncontested categories. In the contested categories the Unions seek production of documents that go to Svitzer’s motivation for making its application, the “overall plan” or perhaps the “real” reasons for making its application that, importantly, go beyond or do not include material that is captured by the uncontested categories (such as documents relating to the consequences for Svitzer if the application is successful and the Agreement is terminated).

1. Obviously the present application to terminate the Agreement is a legally available course for Svitzer to take under the FW Act. Presumably Svitzer has made its application because it thinks it will gain a strategic and/or commercial advantage from doing so. However, none of the Unions allege that Svitzer’s application is an abuse of process or that the application has been made for an improper purpose.

1. In these circumstances I do not see that Svitzer’s reasons or motivation for in making its application, separate from Svitzer’s deliberations and consideration of the consequences that might follow if the application is successful, have any apparent relevance.

1. In Williams and Others v Spautz (1991) 174 CLR 509 at 526 (Mason CJ, Dawson, Toohey and McHugh JJ) the majority described the boundaries of abuse of process:

   “…To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.

Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.

It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers…”

1. If the application is not an abuse of process then it does not appear to me to be relevant whether Svitzer had other motivations – be they good, bad or indifferent.

1. The Unions argue that Svitzer’s motivation is a matter that goes to the public interest in granting the application, including for example the public interest in promoting genuine and bona fide participation in the bargaining system. However the Unions’ submissions do not properly differentiate between Svitzer’s actions and Svitzer’s motivations or reasons for its actions. If the Unions want to argue at hearing that terminating the Agreement, or even just the making of the application, does not in fact promote genuine and bona fide participation in the bargaining system, then they are at liberty to do so. It does not matter whether Svitzer intended to, or even hoped to, undermine genuine and bona fide participation in the bargaining system when it applied to terminate the Agreement - either the bargaining system has been (or will be) promoted, or it has not.

1. I will separately make Orders for Production in the terms that are not contested, but otherwise decline to make orders on the contested categories. The parties are asked to confer and prepare a single draft Order for Production in terms agreed/not opposed. In the event that consensus cannot be reached parties must file their proposed version of orders by no later than 4:00pm on Friday 19 August 2022.

DEPUTY PRESIDENT

Appearances:

Mr S Wood QC with Mr A Manos of Counsel for the Applicant instructed by Ms R Bernasconi of Seyfarth Shaw Australia
Mr L Tiley of Hall Payne Lawyers for The Australian Maritime Officers’ Union
Mr P Boncardo of Counsel instructed by Mr K Bond for the Construction, Forestry, Maritime, Mining and Energy Union
Mr O Fagir of Counsel instructed by Mr M Bakhaazi for The Australian Institute of Marine and Power Engineers

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
August 16.

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