Tarek Soueid
[2018] FWC 2722
•17 MAY 2018
| [2018] FWC 2722 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.590(2)(c)—Applications requiring a person to provided copies of documents or records or to provide any other information to the Fair Work Commission
Tarek Soueid
(B2018/311)
| COMMISSIONER GREGORY | MELBOURNE, 17 MAY 2018 |
Application for a bargaining order ‑ application for Orders requiring production of documents ‑ Orders issues.
Introduction
An application has been made for a bargaining order under s.229 of the Fair Work Act2009 (Cth) (“the Act”) by Mr Tarek Soueid. The matter relates to negotiations taking place at Linfox Australia Pty Ltd (“Linfox”) for a proposed enterprise agreement to replace the existing Linfox Australia (Bulk Petroleum) Agreement 2014.[1] That Agreement has a nominal expiry date of 30 June 2018.
Mr Soueid has been nominated as an employee bargaining representative in those negotiations by 3 existing Linfox employees. However, he claims Linfox is refusing to recognise his appointment and he now seeks bargaining orders from the Commission in response.
Linfox is of the view that Mr Soueid is not permitted to be a bargaining representative, given the provisions in s.176(3) of the Act, and its view that he is somehow acting on behalf of an employee organisation that is not entitled to represent the industrial interests of the employees in relation to the work that will be performed under the Agreement.
The application was set down for hearing on 15 May 2018. However, Linfox now seeks to have 12 separate Orders made for the production of documents. The making of the Orders is also supported by the Transport Workers’ Union of Australia (“the TWU”). However, they are opposed by both Mr Soueid and the National Union of Workers (“the NUW”).
Section 590(2)(c) of the Act provides:
“Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
…
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC”[2]
The Commission is accordingly now required to determine whether it is appropriate for the Orders sought by Linfox to be made.
Mr J.Forbes and Mr J.Tierney of Counsel were both given permission to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement would hopefully enable it to be dealt with more efficiently.
The Evidence and Submissions
Linfox
Linfox first makes reference to s.176(3) of the Act and submits that it makes clear that an official of an employee organisation “cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”[3] In its submission this applies even if the individual purports to Act in a private capacity.
It continues to submit that this issue goes to the heart of the substantive application, and if Mr Soueid cannot be a bargaining representative by virtue of s.176(3) then his application should be dismissed because he has no capacity to represent the employees in that way. It acknowledges in this context that Mr Soueid is not an “official of an employee organisation” in terms of the definition contained in s.12 of the Act, which defines an official of an industrial association as “a person who holds an office in, or is an employee of, the association.”[4]
However, it also makes reference to the definition of “officer of an industrial Association” in s.12, which is indicated to include:
“(a) an official of the association; or
(b) a delegate or other representative of the association.”[5]
Linfox also makes reference to the provisions contained in s.793, which states:
“Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.”[6]
It submits that these provisions make clear that the conduct of an individual can, in certain circumstances, be taken to be conduct engaged in on behalf of the organisation. If Mr Soueid is, for example, an NUW delegate, and as such is an “officer” of the organisation, then it could be found that he is acting as an agent of the NUW, with either its implied or explicit consent, or is engaged in conduct at the direction of or with the agreement of the NUW. It follows in its submission that his involvement in the present matter is arguably a device to enable the NUW to participate in the bargaining process for the new agreement when it is not otherwise entitled to do so.
It continues to submit in regard to the range of Orders that are sought to be made that Mr Soueid’s emergence as a bargaining representative is simply the latest step in what should be seen as an “indivisible part of the narrative,”[7] which has seen various individuals nominated as bargaining representatives at different times after Linfox questioned the ability of the NUW to be involved. In this context it points, for example, to the identical nomination forms that have been used as evidence of the coordinated approach, and submits as a consequence that “[o]ne can’t just disentangle this group.”[8] The circumstances it relies on are also set out in more detail in the letter from Linfox dated 17 April 2018, which is attached to the s.229 application. Linfox also points to the fact that Mr Soueid is not a tanker driver and he is not employed by Linfox.
It also rejects any submission that it is involved in a fishing exercise and relies, in particular, on the decision in Bailey[9] in this context. It also rejects the submission that the Orders should not be made on the basis of industrial confidentiality, and refers in this context to the decision in Santos.[10] It also rejects any claim that the nature of the proposed Orders amounts to intimidation of the individuals involved, and submits there is no evidence before the Commission in support of any such submission.
It also rejects the suggestion that the documents sought are not able to be readily identified. It submits instead that the proposed Orders clearly indicate that they relate to documentary communications between those named in the Orders about the current bargaining round associated with the making of a new enterprise agreement to replace the existing 2014 Agreement.
Linfox also notes the acknowledgement in the proceedings by the NUW that it is not seeking to press the issue that it has coverage to represent the employees involved, and submits in response that this emphasises the importance of establishing whether or not Mr Soueid is acting as an agent of the NUW. It also notes the acknowledgement that Mr Soueid is an NUW delegate at another worksite.
Linfox also indicated that in the light of the submissions made by the NUW in the proceedings it no longer seeks to press for the Order to be made in respect of Mr Peter Mitrov. It is also prepared to have the Commission amend the various references in the Orders to communications involving “any employee of Linfox Australia Pty Ltd,” and to instead refer specifically to only those individuals named in the various Orders now being sought.[11]
It submits, in conclusion, that the Commission should consider in deciding whether to make the Orders whether production of the documents requested would inform it about the central issues involved in the matter. In its submission this is clearly evident in this case, and the Commission is entitled to conclude there is a sound basis upon which to make the Orders.
Tarek Soueid
The submissions provided on behalf of Mr Soueid make reference at the outset to the decision of Commissioner Jones in Australian Nursing Federation v Victorian Hospitals’ Industrial Association[12] (“ANF”), and the reference in that decision to the decision of Munro J in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award[13] and, in particular, to the following extract from that decision:
“That judgment 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.”[14]
Mr Soueid submits that the decision makes clear that the documents sought to be produced must be able to be identified with “reasonable particularity,”[15] and the Orders must not, in all the circumstances, be oppressive.
He continues to refer by way of example to the Orders sought in respect of Mr Alekso Totevski, and the references in the proposed Order to “All documents …” and “in relation to bargaining for an enterprise agreement,” and submits in response that these are oppressive in terms of what they require.[16] They also point to a fishing exercise. This is compounded by the reference in the proposed Orders to communications between those named and “any employee of Linfox Australia Pty Limited.”
Mr Soueid continues to submit that what has occurred to date does not point to a contrived circumstance designed to subvert the intention of the legislation. He also rejects the suggestion that he is acting in some way as an agent of the NUW, or is involved in some form of agency relationship as a consequence of s.793 of the Act. However, he also submits that this does not in any case prevent him from being a bargaining representative.
Mr Soueid also submits that previous authorities have made clear that appropriate protection should be given to the pursuit of legitimate industrial strategies, and the nature of the Orders being sought are again oppressive in this context.
It was also indicated in response to a question from the Commission that his submissions did not seek to deal with the eligibility or otherwise of the NUW to be able to represent the employees intended to be covered by the proposed Agreement.
Mr Soueid also submits that the provisions in s.793(1)(b) require a greater degree of agency than has been made out in the circumstances of this matter. He also acknowledged in his submissions that while he was not an official or an employee of the NUW, he was a union delegate at his worksite, but was not employed by Linfox.
The National Union of Workers
The NUW submits that Mr Soueid is not an “official” or an employee of the organisation, and neither was he acting as an agent of the NUW at any time in the manner alleged by Linfox.
It continues to submit that it is not seeking at this time to press the issue to do with whether it is eligible to cover the relevant employees. However, it submits that Linfox is now involved in a fishing expedition, given what it proposes in terms of the draft Orders.
It points, in particular, to the proposed Order in respect of the NUW and submits it lacks significant particularity, given the large number of NUW employees who could potentially be required to respond if the Order was made. It submits this situation is compounded by the fact that the proposed Order does not seek to limit the nature or scope of the required documents to a specific time period. They are instead open-ended in this regard.
The NUW also makes reference to a confidential Deed of Settlement entered into between Mr Peter Mitrov and Linfox and submits this should preclude any order being made in respect of him. It also submits the reference in the proposed Orders to Mr Evan Willis should be removed, based on legal professional privilege. Mr Willis works as a Solicitor and provides advice to the NUW in this capacity.
Consideration
In coming to a decision in this matter I have had regard to the various decisions referred to by the parties. I have had particular regard to the Full Bench decision in Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville Coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd v Troy Brown; Campbell Dews; Damien Mason; Gregory Holmes; Jeffrey Mason; and Glynis Sabbo[17] (“Clermont Coal”), and the decision of Commissioner Jones in Australian Nursing Federation v Victorian Hospitals’ Industrial Association.[18]
Without going to those decisions in extensive detail it can be noted that the Full Bench in Clermont Coal indicated that:
“The power of the Commission under s.590(1) to “inform itself in relation to any matter before it in such manner as it considers appropriate”, which under s.590(2)(c) includes requiring the production of copies of documents and records to the Commission, is expressed in very broad terms.”[19]
It also concluded in regard to the assessment of the relevance of documents that:
“The test is whether the documents have an apparent relevance to the issues in the proceedings.”[20]
It continued to indicate:
“The consideration of relevance in relation to an application for an order for the production of documents does not require the advance determination of a contested issue in the matter, with relevance then to be assessed on the basis of that determination. To adopt the approach advanced by the appellants would have the undesirable effect of making an interlocutory hearing concerning production of documents a forum for the resolution of the major issues in contest in the proceedings. The position might be different if a party seeks the production of documents to support a case which is not reasonably arguable.”[21]
It also stated at [23]:
“In relation to the fifth proposition, this Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced.”[22]
The decision in ANF has already been referred to in the context of the submissions provided on behalf of Mr Soueid. It makes reference to the decision of Munro J in the matter of Re Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 and the following extract from the decision, in particular:
“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 carry out 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.”[23]
The extract from His Honour’s decision makes reference to the need for “reasonable particularity”[24] in terms of the documents to be produced, and the requirement for them to be relevant to any issues that arise in the proceedings. The decision also warns against oppressive production requirements being imposed, and about “fishing” where the intention is, in reality, “to discover whether there is a case at all.”[25] The final paragraph makes reference to the requirement to find an appropriate balance. I have sought to apply the principles set out in these decisions in coming to a decision in this matter.
The submissions provided on behalf of Linfox essentially suggest that what has transpired to date involves a series of events which are part of a coordinated approach by the NUW, and various individuals, designed to enable the NUW to be involved in bargaining for a new enterprise agreement at Linfox in circumstances where it does not have eligibility to otherwise represent those employees. It continues to submit that the involvement of Mr Soueid can also be attributed to the NUW by virtue of s.793 of the Act, and in these circumstances Mr Soueid is not able to be a bargaining representatives in the negotiations by virtue of s.176(3) of the Act.
The Commission is obviously not at this time making any definitive finding in regard to this matter. However, I am satisfied that it is reasonably arguable that such a case could be made out, and that as a consequence the documents sought to be produced by the Orders proposed have an apparent relevance to the proceedings. I have come to this conclusion based on the circumstances, in particular, that are set out in the correspondence from Linfox’s General Manager Workplace Relations, Mr Darren Jones, dated 17 April 2018 to Mr Mehare Gebrat, which is attached to the s.229 application.[26] It makes reference in a series of a dot points to a sequence of events which could be said to be part of a coordinated or concerted approach. They conclude with the somewhat unusual situation that exists at this time whereby an NUW delegate at another worksite has been nominated to be a bargaining representative for various employees in negotiations taking place at the Linfox worksite.
Those circumstances can be summarised as follows:
· the NUW notifies Linfox of its intention to act as a default bargaining representative for the new Agreement;
· Linfox raises concerns with the NUW in response about its eligibility to represent the tanker drivers;
· Linfox then receives a notice from various employees appointing Mr Peter Mitrov as a bargaining representative. Mr Mitrov was at the time the on-site delegate for the NUW;
· Linfox then receives a further notice on the same day from Mr Mitrov appointing a lawyer from Holding Redlich as his bargaining representative. Linfox understands that the NUW is a client of that firm. (This was confirmed by the NUW in the proceedings);
· the subsequent revocation of that appointment by Mr Mitrov;
· the appointment by various employees of Mr Ryan Laws and Mr Tarek Soueid as bargaining representatives, despite the fact that neither of those individuals are employed by Linfox. It was subsequently confirmed in the proceedings that both are in fact NUW delegates at their own worksites; and
· the fact that the same nomination forms were used by the various employees in regard to the appointment of Mr Mitrov, Mr Laws and Mr Soueid as employee bargaining representatives.[27]
As indicated, I have not come to any concluded view in regard to the circumstances involved in this matter, however, they can be described as unusual if nothing else. I am also satisfied, again without coming to any concluded view, that they could point to evidence of a coordinated approach designed to ensure the NUW has some role in the bargaining for the new enterprise agreement at Linfox to cover bulk tanker drivers, despite the restrictions that might otherwise exist in terms of it being directly involved in these processes. I am also satisfied that the documents sought to be produced have an apparent relevance to these issues.
At the same time the Commission emphasises that it is not intending to prevent Mr Soueid from generally acting as a representative for those who want him to take on this role, but it is concerned at the same time to ensure that in doing so, as now proposed in this case, that this does not occur in breach of provisions contained in the Act.
I have also had regard in coming to this decision to those authorities which make clear that the Commission should be cautious about ordering the production of documents which might reveal internal deliberations about strategy or policy. However, I am not satisfied that it is appropriate to maintain protection of documents on these grounds in circumstances where the intention, or at least the outcome of those processes, might be to circumvent or avoid restrictions contained in the Act.
I have also had regard to the submissions made about the proposed Orders potentially being oppressive in terms of what they require. I am not convinced that this argument has necessarily been made out as the draft Orders do generally confine the production of documents to matters relating to the current negotiations for the new enterprise agreement, and do not seek to extend more widely. However, the Orders that have been issued do contain some amendments to the drafts proposed by Linfox. Those amendments are intended to make the intention clear in regard to what is required to be produced. For example, the references in the draft Orders to communications extending to “any employee of Linfox Australia Pty Ltd” have been removed. The Orders in respect of the NUW also limit the communications to representation in relation to the bargaining for the new enterprise agreement that is to replace the existing 2014 Agreement.
It is also noted as was made clear by the Full Bench in the decision in Clermont Coal that any issues to do with privilege or confidentiality in regard to the documents to be produced can be dealt with at a subsequent time by, for example, imposing appropriate limitations on access to documents, or by doing whatever else might be necessary.
The Orders now made in response to the applications by Linfox are issued in conjunction with this decision.
COMMISSIONER
Appearances:
J Tierney of Counsel for the Applicant.
J Forbes of Counsel for Linfox Australia Pty Ltd.
M Toner for the National Union of Workers.
C Guyett for the Transport Workers’ Union of Australia.
Hearing details:
2018.
Melbourne:
May 15.
<PR607103>
[1] AE410659.
[2] Fair Work Act 2009 (Cth) s 590(2)(c).
[3] Fair Work Act 2009 (Cth) s 176(3).
[4] Fair Work Act 2009 (Cth) s 12.
[5] Ibid.
[6] Fair Work Act 2009 (Cth) s 793.
[7] Transcript at PN86.
[8] Transcript at PN101.
[9] Bailey v Beagle Management Pty Ltd [2001] FCA 185.
[10] Santos Ltd v Pipeline Authority of SA [1996] SASC 5628.
[11] Transcript at PN317 – PN323.
[12] [2011] FWA 8756.
[13] (Print H2892, Munro J, 2 June 1988).
[14] (Print H2892, Munro J, 2 June 1988), p 2 quoted in Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756, [12].
[15] (Print H2892, Munro J, 2 June 1988), p 2.
[16] Transcript at PN126 – PN127.
[17] [2015] FWCFB 2460.
[18] [2011] FWA 8756.
[19] [2015] FWCFB 2460, [21].
[20] Ibid, [19].
[21] Ibid, [20].
[22] Ibid, [23].
[23] (Print H2892, Munro J, 2 June 1988), p 2.
[24] Ibid.
[25] Ibid.
[26] Form F32 application, lodged by Applicant 27 April 2018, Attachment 1.
[27] Ibid.
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