United Firefighters' Union of Australia v Country Fire Authority

[2016] FWC 2485

[2016] FWC 2485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Country Fire Authority
(C2015/7916)

COMMISSIONER WILSON MELBOURNE, 19 APRIL 2016

Application to deal with a dispute; applications for orders requiring production of documents etc.

[1] This decision concerns an application by the United Firefighters’ Union (UFU) for orders for the production of documents relevant to proceedings before the Fair Work Commission from both the Country Fire Authority (CFA) and also the Emergency Management Commissioner, being the head of an agency by the name of Emergency Management Victoria (EMV).

[2] The CFA is a party to these proceedings, as is the UFU. EMV is not a party to the proceedings.

[3] The substantive application made by the UFU relates to an alleged dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) in which, it is said by the UFU, the CFA has failed to comply properly with the terms of the CFA/UFU Operational Staff Enterprise Agreement 2010 1 (the Agreement), insofar as that agreement deals with matters relating to Emergency Medical Response (EMR), and in particular whether the CFA has put into place that which it agreed in clause 88 when it made the Agreement. Amongst other things clause 88 requires an EMR trial to be undertaken and reviewed; a business case for the securing of additional funding to be prepared and submitted, and to then take certain actions “[u]pon securing additional funding”. The substantive matter is set for hearing before the Commission on 9 and 10 May 2016.

[4] The Orders for Production sought by the UFU were for certain classes of documents from both the CFA and EMV. Those orders were sought from the Commission on 9 March 2016 and were sought pursuant to the provisions of s.590 of the Act which enables the Commission to make an order requiring a person to provide copies of documents or records or to provide any other information to the Commission. It is not in dispute that the Commission has the power to compel the production of the documents sought by the UFU.

[5] The Commission’s power in this regard and the processes and tests to be applied when considering such applications is well settled. 2

[6] The ordinary process for the Commission to adopt with applications such as that made by the UFU is to firstly consider, often ex parte, whether the documents sought by an applicant for an order have an apparent relevance to the matters to be dealt with in the substantive proceedings. Further, the Commission considers whether the documents might in some respect not be appropriate to compel for production, which may be because the application appears to be for the purposes of “fishing”, or because there is an undue burden or prejudice to the party who is subject to an order. Finally, the interests of public and private rights will be balanced. 3

[7] The ordinary process requires production of the documents to the Commission, with advice to the person receiving the order of their liberty to apply to have it set aside or varied. A person may also apply to have documents produced to the Commission withheld from the person who obtained the order, or from other parties to the proceedings.

[8] It is also the case that while the Commission is not strictly bound by the practice of the courts in matters such as these, the Commission will generally be guided by what applies in courts, including by applying a test of relevance. 4

[9] Consistent with the ordinary process, the Commission as presently constituted considered the application made by the UFU ex parte; took the view that the documents sought by the Applicant had apparent relevance to the matters to be determined by the Commission in the substantive proceedings; and that there was not, on the face the application, an apparent reason for the documents not to be produced. As a result orders were made on 10 March 2016 on both the CFA and EMV in the terms sought by the UFU.

[10] Subsequent to the issuing of the orders for production, the CFA indicated its desire to have the orders set aside, as later did EMV.

[11] The CFA indicated to the Commission that one of the grounds upon which it sought the documents to be set aside was that some or all of the documents ordered to be produced were protected from production for reason of public interest immunity. As a result, the Commission determined it was appropriate to set aside the orders pending a full determination of the merits of the application. In order to guard against the indiscriminate disclosure of documents that might be within such class it was appropriate to allow the CFA and EMV an opportunity to be heard on the matter of an order for production of the documents. 5

[12] In order to allow this opportunity, the Commission issued Directions to all concerned, being the UFU, the CFA and EMV, to exchange information about the documents in question and to establish whether any or all could be provided through agreement between the parties. That process led to agreement being reached over the disposition of some of the documents sought to be produced and not to others. As part of that process, the disputed documents were identified and the grounds for which the CFA and EMV contended that the documents should not be produced were particularised.

The CFA documents

[13] Upon the hearing of the matter, the CFA has identified two classes of documents, including one class it contends is comprised of documents that are not required to be produced for reason of public interest immunity and another class it has indicated it is prepared to provide to the UFU without further opposition.

[14] Upon direction, the CFA has provided the first class of documents to the Commission. Since it has not raised any objection to the Commission’s inspection of those documents, they have been inspected by me. The first class of documents is comprised of 8 documents, described as follows, (referred to as the Disputed CFA Documents) with CFA objecting to the production of the documents for the reasons set out in the third column below;

Date	Document Description Summary	CFA OBJECTION
18 Feb 2015	CFA to EMV responding to DTF questions re business case and implementation approach for EMR	The document – both email and attachments – was brought into existence for the purposes of preparing a submission to the committee of Cabinet. The matters raised in the documents are matters that remain current. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
18 Jun 2015	CFA to EMV re CFA intent to seek additional funding to complete the EMR program	The document was brought into existence for the purpose of preparing a submission to Cabinet. The matters raised in the document are current. The document is of a class to which public immunity applies. That immunity continues to apply to this document. That immunity continues to apply to this document.
14 Dec 2015	CFA to EMV regarding funding in the business case	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
4 Jan 16	EMV to CFA regarding what pay amount will be included in the costing	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
14 Dec 15	CFA to EMV regarding pay amount to be included in costing	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
20 Jan 16	CFA to EMV regarding cost modeling	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
25 Jan 16	EMV to CFA final ERSC submission	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.
27 Jan 16	CFA and EMV final cost model for business case	This document was brought into existence to inform the development of a Cabinet submission. The document is of a class to which public immunity applies. That immunity continues to apply to this document.

[15] The CFA has provided the documents within the second class of documents to the UFU.

The EMV documents

[16] For its part, EMV has identified 4 documents, each of which it argues it would not be required to produce for reason of public interest immunity. The documents have been provided to the Commission, upon direction, but have not been inspected by the Commission and will not be inspected, unless the Commission considers it necessary to do so.

[17] The documents are identified below, with EMV objecting to the production of the documents for the reasons set out in the third column below;

Document Title	Date	Document Description Summary	EMV OBJECTION
Department of Justice and Regulation ERSC 2016/17 - Business Case - Emergency Medical Response Expansion (EMR-E) Project	21 Jan 15	Document prepared for ERSC during current budget process	This is a document that was brought into existence for the purposes of preparing a submission to a committee of Cabinet. This document is a member of an identifiable class of documents to which public interest immunity applies. Only in exceptional circumstances would its disclosure be warranted in civil proceedings. No exceptional circumstances have been identified in this case. Public interest immunity cannot be waived by any person as it exists for the public interest. In any event, the disclosure of a draft business case by the CFA would not waive the immunity in relation to this document. The document continues to relate to matters that remain current or controversial as they are being considered as part of the 2016/17 Budget process. Any order for production would be premature as the outcome of that budget process would be expected to be known on 27 April 2016 with further information available in the Budget papers.
Attachment 5.1: Part A: Emergency Medical Response for CFA - Department of Justice and Regulation 2015 -16 ERSC Output Submission	Undated - Jan 15	Attachment to document prepared for ERSC during current budget process	This is a document that the Cabinet Office has confirmed was submitted to a committee of Cabinet and considered as part of ERSC 16 on 18 March 2015. This document is a member of an identifiable class of documents to which public interest immunity applies. Only in exceptional circumstances would its disclosure be warranted in civil proceedings. No exceptional circumstances have been identified in this case. Public interest immunity cannot be waived by any person as it exists for the public interest. In any event, the disclosure of a draft business case by the CFA would not waive the immunity in relation to this document. The document continues to relate to matters that remain current or controversial as they are being considered as part of the 2016/17 Budget process. Any order for production would be premature as the outcome of that budget process would be expected to be known on 27 April 2016 with further information available in the Budget papers.
ERSC 2016-17 - Options Analysis – Emergency Medical Response Expansion (EMR-E) Project	1 Oct 15	Document prepared for ERSC during current budget process	This is a document that was brought into existence for the purposes of preparing a submission to a committee of Cabinet. This document is a member of an identifiable class of documents to which public interest immunity applies. Only in exceptional circumstances would its disclosure be warranted in civil proceedings. No exceptional circumstances have been identified in this case. Public interest immunity cannot be waived by any person as it exists for the public interest. In any event, the disclosure of a draft business case by the CFA would not waive the immunity in relation to this document. The document continues to relate to matters that remain current or controversial as they are being considered as part of the 2016/17 Budget process. Any order for production would be premature as the outcome of that budget process would be expected to be known on 27 April 2016 with further information available in the Budget papers.
Attachment A.10.1: Emergency Medical Response (EMR) Project - Department of Justice and Regulation 2016 - 17 ERSC Budget Submission	Undated	Attachment to document prepared for ERSC during current budget process	This is a draft or precursor document of a document that the Cabinet Office has confirmed was submitted to a committee of Cabinet and considered as part of ERSC 221 on 15 March 2016. This document is a member of an identifiable class of documents to which public interest immunity applies. Only in exceptional circumstances would its disclosure be warranted in civil proceedings. No exceptional circumstances have been identified in this case. Public interest immunity cannot be waived by any person as it exists for the public interest. In any event, the disclosure of a draft business case by the CFA would not waive the immunity in relation to this document. The document relates to matters that remain current or controversial as they are being considered as part of the 2016/17 Budget process. Any order for production would be premature as the outcome of that budget process would be expected to be known on 27 April 2016 with further information available in the Budget papers.

Consideration

[18] The CFA did not produce evidence in relation to its contentions about public interest immunity, however EMV did, calling as a witness Ms Gail Moody, Deputy Secretary, Corporate Governance and Infrastructure within the Department of Justice and Regulation, with her evidence confirming the reasons for objection set out in the EMV table above.

[19] EMV’s contentions go to the protection it says should be afforded to documents ultimately prepared for the purposes of deliberation by the Cabinet of the Victorian Government. The first two of the documents referred to in the EMV list above have been prepared, on Ms Moody’s evidence, “for the purposes of informing a submission for consideration” by a Cabinet Committee and “for the purpose of submission for consideration by a Cabinet Committee”. The third and fourth documents were prepared, respectively, for the same purposes.

[20] It is accepted that there is a general presumption that the tribunal should prevent from disclosure a document whose production would be contrary to the public interest 6; and that if one document forming part of a series has been published, but others have not, it would be unfair and unjust to produce one document and withhold the rest.7 Public interest immunity arises in order to safeguard the functioning of the executive arm of government and the public service.8 While there is a recognition that the proper working of government relies on ministers and others being able to engage in policy development and decision-making on the basis that their deliberations are confidential, the public interest must be weighed.9

[21] In certain cases, it may be appropriate for the presiding member to satisfy themselves that the documents in question fall into the category contended by the party resisting production of the documents, however, where a document clearly falls within a class which attracts immunity, a different approach is called for. 10

[22] Having given consideration to the authorities on the subject, the Commission has not inspected the documents provided to it by EMV, since it objected to inspection occurring when it provided the documents to the Commission. Taking into account the content of those documents, as well as the evidence of Ms Moody, the Commission is satisfied that each of the documents is protected from production for reason of public interest immunity. Each has been prepared within the public service for the purposes of informing government directly about matters upon which it will be called upon to make decisions, both as to policy and budget. The fact that the documents may be once removed from Cabinet or a Cabinet Committee does not change the reason the document was created, that is to inform Executive Government about its options within the context of a decision only it could make.

[23] It has not been necessary to inspect the documents, for the reason that I am satisfied on the face of the Schedule provided by EMV and Ms Moody’s evidence that the documents are within the category to which public interest immunity applies.

[24] I have given consideration to whether the public interest in disclosure of the documents weighs more heavily than the presumption they should be withheld. In this regard, I have taken into account the likely probative value of the documents were they to be ordered for production. I am satisfied that, on the basis of the matters required for determination by the Commission, which is ultimately whether clause 88 of the Agreement has been properly applied or not, that the public interest does not require the disclosure of the documents. The documents appear to be in draft form; whether or not their content has been or will be ultimately adopted by Government may be an interesting question, however the draft status of the document is unlikely to be a definitive issue in the Commission’s consideration. Accordingly, there do not appear to be compelling reasons for the production of the documents that would require me to give greater weight to that factor over and above the identification of the documents being properly classified as being covered by public interest immunity.

[25] I have also given regard to the possibility that an alternative version of one or more of the documents within the EMV disputed documents is now with the UFU, having obtained that from the CFA. I do not consider this to be a circumstance in which it would be unfair and unjust to produce one document in a series and withhold the rest.

[26] Accordingly, no order will be made upon EMV for the production of documents to the UFU.

[27] In relation to the Disputed CFA Documents, the Commission is satisfied those documents were prepared for the purpose of informing EMV, and thereby others, about matters associated with the Victorian Government’s budget deliberations, insofar as they relate to the EMR initiative. Since there was no objection to me doing so, I have inspected the documents, and am satisfied that each is properly described as falling within a class to which public immunity applies. I do not find content within the documents that would require a greater weight to disclosure for reason of the public interest than to them being withheld.

[28] As a result, I consider that it would not be appropriate to compel the production of those documents. Accordingly, no order will be made upon the CFA in respect of the Disputed CFA Documents.

COMMISSIONER

Appearances:

Mr D Langmead, of Counsel, for the UFU.

Ms J Parker (Victorian Government Solicitor’s Office) for EMV.

Mr C Martin and Mr G Meredith on behalf of the CFA.

Hearing details:

2016.

Melbourne:

12, 18 April.

 1   AE881690.

 2   See, for example, Re: Clerks (Alcoa), (1988) unreported, Print H2892; Patrick Stevedores Number 2 Pty Ltd, Ross VP, (1998) Print P8680; ANF v Victorian Hospitals' Industrial Association[2011] FWA 8756; SPI Power Net Pty Ltd v CEPU[2012] FWA 4350.

 3   Sultana v Tripod Services Pty Ltd[2015] FWC 4361 [7].

 4   Clermont Coal Operations v Brown and Ors[2015] FWCFB 2460 [19].

 5   Sankey v Whitlam (1978) 142 CLR 1, 43, per Mason ACJ.

 6   Ibid 43-44.

 7   Ibid 45.

 8   Ibid 56, per Stephen J; see also Commonwealth v Northern Land Council (1993) 176 CLR 604, 619.

 9   Tatts Group v State of Victoria [2013] VSC 301 [28]–[29].

 10   Commonwealth v Northern Land Council (1993) 176 CLR 604, 618.

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