Troy Brown v Clermont Coal Operations Pty Ltd T/A Clermont Open Cut

[2015] FWC 2215

[2015] FWC 2215[Note: An appeal pursuant to s.604 (C2015/2341) was lodged against this decision - refer to Full Bench decision dated 10 April 2015 [[2015] FWCFB 2460] for result of appeal.]

FAIR WORK COMMISSION

FURTHER DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Brown
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13979)

Campbell Dews
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13980)

Damien Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13981)

Gregory Holmes
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13982)

Jeffrey Mason
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13983)

Glynnis Sabbo
v
Clermont Coal Operations Pty Ltd T/A Clermont Open Cut
(U2014/13984)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 MARCH 2015

Application for relief from unfair dismissal – orders for production.

[1] Further to my decision of 19 March 2015, the Applicants seek orders that Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd produce documents in the following category:

All documents referring to, containing or evidencing any consideration by Collinsville Coal Pty Ltd, Collinsville Coal Operations Pty Ltd, Glencore Queensland Pty Ltd or Glencore Coal Queensland Pty Ltd of the reasons for maintaining the relative number of direct versus contractor supplied operator employees at the Collinsville open cut coal mine, in existence during the period 1 September 2014 until 30 November 2015, being documents authored by, distributed to, or in the possession of the following persons:

Peter Freyberg
Dave Paterson
Tony Galvin
Phil Nobes
Anna Wendtman
Leanne O’Donoghue

[2] Collinsville and Glencore objected to these orders on the grounds that the documents would reveal the internal deliberations as to the industrial strategy or policy of the respondents to the Collinsville notices.

[3] It submitted that there is a long standing convention against issuing orders of the type sought by the Applicants. 1

[4] The Applicants submitted that they seek documents which show “the reasons why, at the relevant time, the number of direct employees at the Collinsville mine were not what the company had claimed publically it would be in its earlier public statements.” 2

[5] The Applicants submitted that this could have been dealt with simply by having the Respondent call the relevant decision maker to give evidence and explain the inconsistency. 3

[6] The Applicants further submitted that they have put squarely in issue the contention that the Respondent through an associated entity has deliberately structured its operations at the Collinsville mine in order to avoid its obligations under section 389(2) of the Fair Work Act 2009.

[7] I accept that there is a real issue between the parties about availability of redeployment opportunities with associated entities and the reasonableness of any redeployment to positions filled or normally filled by contractors or employees of contractors. I am not able to conclude at this stage of the proceeding that these documents may not be relevant to this issue in dispute.

[8] It is not clear that disclosure of such documents would reveal internal deliberations as to industrial strategy or policy of those required to produce the documents however they may do so.

[9] I consider that this is a matter more properly dealt with by the member hearing the substantive application. I will therefore order that the documents be produced to the Commission but will make no orders for inspection of the documents. Should the Applicants wish to inspect the documents they will need to seek orders of the presiding member after the documents have been produced.

[10] The orders provided seek documents for the period 1 September 2014 to 30 November 2015. It is likely that this is a typographical error by the Applicants. However I am not prepared to require documents to be produced for the period after the Applicants were terminated. I will order production of the documents for the period 1 September 2014 to 30 November 2014.

[11] The Respondents seek two weeks to produce the documents. This matter is listed for hearing on 13 April 2015 with a directions hearing on 1 April 2015.

[12] To avoid delaying the hearing of this matter, I will order the production of the documents to the Commission by 7 April 2015.

DEPUTY PRESIDENT

 1   Submissions in reply at [1]

 2   Submissions of the Applicants at [11]

 3   Ibid at [12]

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