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.

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.

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.

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).

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.

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.

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.”

Similarly, the following categories sought by the AIMPE are not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Svitzer Australia Pty Ltd

Details

AGLC: Svitzer Australia Pty Ltd [2022] FWC 2186
Case: [2022] FWC 2186
Decision Date: 17 AUGUST 2022

CaseChat Overview and Summary

In Svitzer Australia Pty Ltd, the dispute involved an application for the termination of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016. The application was brought before the Fair Work Commission, which had the jurisdiction to hear and determine the matter. The primary issue the Commission needed to decide was whether certain documents, which related to the applicant’s motivations and subjective intentions in making the application, should be produced. The applicant sought these documents as part of its application for Orders for Production, arguing that they were relevant to the case.

The Commission carefully examined the overlap between the contested and uncontested categories of documents. It noted that while some documents fell within the uncontested category, others pertained to the applicant's subjective intentions, which the Commission deemed outside the scope of what could be ordered. The Commission emphasised that the application did not allege abuse of process, and there was no apparent relevance of the subjective intention documents to the substantive matter at hand. Consequently, the Commission concluded that orders should only be made in respect of the uncontested categories of documents, thereby limiting the scope of discovery to what was strictly necessary for the adjudication of the case.

The Fair Work Commission ruled that the applicant's request for documents relating to its subjective intentions was outside the scope of the permissible orders. The Commission issued orders for the production of documents only within the uncontested categories, ensuring that the discovery process remained focused on relevant and necessary materials. This decision underscores the importance of maintaining the integrity of the litigation process by preventing the use of discovery for impermissible purposes.

Orders