The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
[2024] FWCFB 322
•23 AUGUST 2024
| [2024] FWCFB 322 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
The Association of Professional Engineers, Scientists and Managers, Australia
v
Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
(B2023/1339)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 23 AUGUST 2024 |
Application by the Association of Professional Engineers, Scientists and Managers Australia for a single interest employer authorisation – whether further confidentiality orders should be made.
This matter arises from an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) under s.248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer authorisation (Authorisation). The authorisation was sought in respect of bargaining for a proposed multi-enterprise agreement to cover certain employees (the SIEA employees) engaged by a small number of employers operating in the black coal mining industry in New South Wales. In particular, in its final form, the application sought authorisation for the commencement of bargaining with the following Employers who operate underground black coal mines (collectively identified as the Respondent Employers):
Peabody Energy Australia Coal Pty Ltd at Wambo Underground Coal Mine (Peabody);
Ulan Coal Mines Ltd at Ulan No.3 Underground Coal Mine (Ulan);
Whitehaven Coal Mining Ltd at Narrabri Coal Mine (Whitehaven); and
Great Southern Energy Pty Ltd T/A Delta Coal at Chain Valley Colliery (Delta Coal).
The original application and the early proceedings also involved Wollongong Resources Pty Ltd (Wollongong Resources); however, it was removed from the matter by agreement prior to the major proceedings being conducted.
The Australian Council of Trade Unions (ACTU) and Minerals Council of Australia (MCA) were granted leave to intervene in the matter.
The substantive application was recently determined[1] by this Full Bench and an Authorisation[2] was made in an amended form.
In the course of the matter, a number of materials filed in the Commission contained details that were claimed by the Respondent Employers to be confidential material. This included details of individual pay arrangements, operating costs and metrics of the mines involved, and related commercially sensitive materials. The confidential material was generally subject to a series of confidentiality orders[3] and other arrangements that still permitted APESMA, the Respondent Employers (and the witnesses of each of these parties), to properly access the information and seek and confirm instructions and present their respective cases. Some of the proceedings were conducted in private.[4]
The confidentiality and related arrangements were made by the Commission in accordance with the following provisions of the FW Act:
“593 Hearings
(1)The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.
(2)If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).
Confidential evidence in hearings
(3)The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c)orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d)orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.
(4)Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
594 Confidential evidence
(1)The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b)the names and addresses of persons making submissions to the FWC in relation to the matter;
(c)matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2)Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”[5]
The most recent Confidentiality order[6] was made, following the final hearing of the application, on 14 May 2024 (14 May Order). Amongst other matters, this continued the substance of the previous orders and provided:
· Certain defined submissions and elements of witness statements and the transcript of proceedings when the Commission was conducting the hearing in private under s.593(3) of the Act (the confidential materials) were confidential and not to be published;
· Permitted the confidential materials to be provided to and held by Authorised Persons, who were in general terms defined to include the Solicitors and Barristers acting on behalf of the parties to the application, with more limited access to those acting for the intervening parties;
· Permitted the confidential materials to be provided to Catherine Bolger, Director of the Collieries Staff Division of APESMA, and any other person who is or may be a witness in the Proceedings only for the purpose of the Proceeding to the extent necessary to get instructions or obtain evidence, but only if, prior to doing so, a copy of this Order is provided to that person, and the person has signed a relevant comprehensive undertaking that was set out in the relevant order; and
· Provided that the confidential material was only to be used by the Authorised Persons for the purposes of the proceedings and was, subject to the order, to be kept confidential and not to be published or disclosed.
The 14 May Order does not have an expiry date or limited duration.
Peabody, with the support of the other Respondent Employers, has sought a proposed further confidentiality order which would address the obligations of the parties following the conclusion of the hearing and the making of the decision. In brief terms, the further order would provide:
· Subject to an express limitation and timeframe, require the various persons who have had access to the confidential materials to securely destroy, permanently delete or return that material, including any hard copies of documents that disclose the content of the confidential materials.
· The express limitation would exclude each party’s own confidential material and permit the legal representatives of the parties to retain such information where required to fulfil professional obligations.
· The requirement to destroy or return the material would operate 60 days after the decision was handed down by the Full Bench. The proposed order would also permit a party to seek an extended period in the event that subsequent proceedings necessitated that the material be retained.
· A legal representative of each party to confirm in writing that they have “instructed” their respective employees, counsel and client representatives involved in the proceedings to comply with the order.
· Wollongong Resources to be included.
Amongst other grounds, Peabody contends that the number of documents involved (at least 17) plus transcript leads to a risk of inadvertent disclosure and there were strong grounds for making sure that the confidential materials were only retained by those persons who need that information and only for as long as is necessary.
APESMA opposed the making of further or additional confidential orders on the following grounds:
· The proposed further order imposes obligations which go well beyond those ordinarily issued by the Commission. Peabody has failed to demonstrate that it is necessary or desirable to make the proposed orders which would contain protections beyond the existing orders.
· The approach is unsupported by authority and invites the Commission to act in excess of its powers. In particular, the powers relied upon by the Commission to make the orders contemplate prohibiting or restricting publication and this does not empower the Commission to require a party to destroy its own records of proceedings or hand litigation records over to the opposing lawyers.
· The regime proposed by Peabody was incoherent and would create issues including under relevant uniform professional conduct rules and the notion that Solicitors have authority to instruct their clients. Further, there was no basis established to place additional obligations upon Ms Bolger.
We have decided against making any additional or varied confidentiality order in this matter. Our reasons for doing so are set out hereunder:
· The 14 May Order represents an extensive and ongoing obligation to protect the confidentiality of the relevant material.
· Although there was an inadvertent disclosure during the proceedings, this occurred in a very dynamic environment associated with the hearing itself and was quickly addressed. The matter has now concluded before the Commission.
· Each of the parties and intervenors have been represented by experienced lawyers and Counsel and the obligations flowing from the 14 May Order would be well understood and appreciated by them.
· Although the orders as now sought by Peabody attempt to accommodate some of the problematic elements highlighted by APESMA, we consider that there remains a number of legitimate concerns about the intended scope and operation of the proposal particularly concerning the proper identification and treatment of documents that might reference the confidential material and the impact upon the record keeping obligations of the legal practices involved.
· We do not consider that additional measures are necessary in relation to Ms Bolger or any other witnesses given the comprehensive undertakings provided by them.
· If we were to amend the 14 May Order in any significant manner, it would be prudent to review the extent and nature of the materials declared as confidential given the developments that may have taken place, including consideration of the extent of (unrelated) public disclosure of certain matters as posited by APESMA. We are not inclined to do this given that the substantive application has now been heard and determined by the Full Bench.
We observe that it is open to the parties and their representatives to voluntarily adopt the destruction/deletion regime to simplify their ongoing confidentiality and non-publication obligations. However, whether they do so, or adopt other strategies directed to that end, is a matter for them.
Further, as we have rejected the proposed orders on merit grounds, it has not been necessary for us to consider and determine whether the Commission would have the requisite power to order the destruction/deletion of the relevant materials.
In relation to the potential extension of the 14 May Order to Wollongong Resources, it has not been involved in any related proceedings for some time and has not been given an opportunity to be heard. As a result, we grant liberty to Peabody to renew its application in that limited regard. If this occurs, the Full Bench will provide an appropriate opportunity for Wollongong Resources, APESMA and the other parties to make written submissions on that issue, before making a final determination. We encourage Peabody, as it has generally previously done, to engage all relevant parties on any proposal in that regard, prior to making any further request or application.
The 14 May Order remains in place.
DEPUTY PRESIDENT
[1] [2024] FWCFB 253, issued on 23 August 2024.
[2] PR777608.
[3] Made under s.594 of the FW Act - PR771848 (28 February 2024); PR771846 (28 February 2024); PR771840 (28 February 2024); PR772242 (11 March 2024); PR772357 (19 March 2024); PR772850 (28 March 2024); PR773599 (17 April 2024); PR774317 (29 April 2024, revised on 2 May 2024); PR774672 (14 May 2024).
[4] FW Act s.593(3).
[5] FW Act ss.593, 594
[6] PR774672.
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