v/Line Corporation v Australian Rail, Tram and Bus Industry Union

[2020] FWC 3298

[2020] FWC 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

V/Line Corporation
v
Australian Rail, Tram and Bus Industry Union
(C2019/5352)

COMMISSIONER CIRKOVIC MELBOURNE, 23 JUNE 2020

Dispute arising under an enterprise agreement – whether further procedural order can and should be granted – whether dispute resolved – whether order relates to dispute

[1] This decision concerns an application made by the V/Line Corporation (V/Line) under section 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 10 of the V/Line Rail Operations Enterprise Agreement 2015-2019 (Agreement).

[2] The application lodged by V/Line related to an investigation it was conducting under clause 15 of the Agreement into a complaint from an employee (the Complainant) about the behaviour of two of their colleagues. V/Line put various allegations to the two men in question. The alleged conduct involved sexist and sexually-referenced behaviour and comments in the workplace, including the showing of pornographic material. The employees were represented by their union, the Australian Rail Tram and Bus Union (RTBU).

[3] In October 2019, V/Line sought access to certain recordings that had been made by the Complainant. On 3 October 2019, by consent of the parties, namely V/Line and the RTBU, I issued an order requiring the Complainant to produce any audio or visual recordings of the conduct in question (the production order and the produced documents). On 21 October 2019, I made a further order, also by consent of the parties, that access to, and use, of the produced documents was to be limited, relevantly, to V/Line investigating the Complainant’s complaint and any related allegations, concerning the three employees who had been suspended in connection with the complaint. The order stated that the documents would not be used for the purposes of investigating or disciplining other V/Line employees (the restricted use order). I, by consent of the parties, granted liberty to the parties to apply to vary the orders.

[4] On 2 December 2019, V/Line wrote to my chambers, citing its application under section 739 and certain outstanding matters. In particular, V/Line sought supplementary orders from the Commission that would in effect alter the restriction in the order of 21 October 2019 and allow it to use the recordings for the purpose of investigating other staff members who might be implicated in misconduct by the produced documents (the proposed supplementary order). The RTBU opposed making of the supplementary orders. Conciliation proved unsuccessful and V/Line requested that the matter proceed to arbitration.

[5] It was common ground, and I agree, that the dispute has been progressed through the steps in the dispute resolution procedure in clause 10 of the Agreement, and that the Commission is empowered to arbitrate the dispute.

[6] The agreed questions for determination are the following: 1

“(a) In matter number C2019/5352 does the Fair Work Commission have power to make the following order?

1. In addition to the matters set out in Order 2 of the Commission’s orders dated 21 October 2019 (21 October 2019 Orders):

a. the Produced Documents may be used by the Applicant for the purpose of investigating staff members that are implicated in misconduct by the Produced Documents, and any related allegations, decision making, action, dispute or proceeding concerning these staff members; and

b. the Produced Documents may be provided to the staff members who are being investigated in accordance with paragraph (a) for the purpose of responding to any related allegations, action, dispute or proceeding or commencing any action, dispute or proceeding.

2. Orders 2, 3 and 4 of the 21 October 2019 Orders will have effect subject to these orders. (the proposed supplementary order)

(b) In the event that the Fair Work concludes that it does have the power to make the proposed supplementary order should the Commission exercise its discretion to make the proposed supplementary order?”(sic)

[7] V/Line contends that the answer to these questions is yes. The RTBU submits that the answer to both questions is no.

Factual background

[8] The parties filed an agreed chronology.  2 The essential facts can be summarised as follows.

[9] On 27 August 2019, the RTBU wrote to V/Line to raise a dispute under clause 10 of the Agreement concerning what the RTBU considered to be V/Line’s failure to provide particular information to its members who were subject to a disciplinary investigation by V/Line. The RTBU contends that V/Line was required to provide the information under clause 15 of the Agreement.

[10] The RTBU and V/Line were unable to resolve the dispute through discussion. On 28 August 2019, V/Line made an application to the Commission to deal with the dispute pursuant to clause 10.3(c) of the Agreement. 3 On 25 September 2019, I convened a conference however the matter remained unresolved.

[11] Between 25 September 2019 and 1 October 2019, the RTBU and V/Line exchanged correspondence in which they conferred in an attempt to resolve the dispute. On 1 October 2019, V/Line emailed to my chambers a proposed consent position (the first consent position), which proposed that an order be made requiring the Complainant to produce documents to the Commission and that the parties have leave to uplift and copy the documents.

[12] On 3 October 2019, I made the production order. At this time, the Commission did not make any order in relation to the parties having leave to uplift and copy the documents. On 15 October 2019, I convened a further conference in respect of the question of access to, and use of, the produced documents.

[13] Between 16 and 18 October 2019, the RTBU and V/Line exchanged correspondence on this issue. On 18 October 2019, V/Line emailed my chambers a proposed consent position (the second consent position), which proposed that an order be made allowing the parties leave to uplift and copy the produced documents, and that the documents could only be used for particular limited purposes.

[14] On 21 October 2019, I made the restricted use order, consistent with the second consent position. The order stated that V/Line could only use the produced documents “…for the purposes of investigating the complaint made by the Complainant (Complainant) and any related allegations and any related allegations, decision making, action, dispute or proceeding concerning the three employees who are currently suspended in connection with the Complaint.”

[15] On 2 December 2019, V/Line wrote to my chambers and asked the Commission to make an order which would release it from its obligations under the restricted use order and allow it to use the produced documents to investigate a broader group of employees.

Does the Commission have power to make the proposed supplementary order?

[16] V/Line contends that there remains a dispute over the application of clause 15, as no final determination was made by the Commission about the dispute, nor was the application dismissed. 4 It submits that the dispute therefore remains on foot and is capable of resolution, at least in part, by a determination by the Commission in the form of the proposed supplementary order.5

[17] The RTBU contends that the Commission has no power to make the order because the relevant dispute has been resolved. 6 It submits that the dispute to which the production order and restricted use order related concerned an investigation into its two members (and a third person not covered by the Agreement) and as the two members have resigned as employees of V/Line, the dispute was therefore resolved.7 The RTBU further submits that the Commission, which had previously been exercising the powers of a private arbitrator under the Agreement, is now functus officio.8

[18] I do not consider that the resignation of the two members resolved the dispute. The application lodged by V/Line remains before the Commission and has not been determined or dismissed. Although the dispute was framed in the F10 application as one focused on particular details of an investigation into three particular employees, it is well established that the description of the scope of a dispute lodged in the Commission under section 739 may require elaboration and articulation. The F10 document is not to be read as a set of formal pleadings that irrevocably determine the precise boundaries of the dispute.

[19] The RTBU contends that the dispute was effectively resolved by the Commission upon the making of the production order on 21 October 2019. 9 However, I do not consider that the parties gave any indication that this order would resolve the dispute. The production order was made in aid of the settlement of the dispute. A procedural order might, in a particular case, have the effect that the parties reach an agreed outcome, or otherwise effectively resolve a dispute, such that the Commission’s role as private arbitrator under the Agreement has ceased. But I cannot see any basis for reaching that conclusion here. The main focus of the dispute was the behaviour of the individuals in question, and it may be accepted that the resignation of those particular employees has resolved the dispute in part. But I do not agree that the dispute was resolved in toto.

[20] My conclusion that the dispute was not resolved by the issuing of the production order is reinforced by the fact that the parties requested a report back at the same time that the production order was requested, no written terms of settlement were agreed, V/Line has not filed a notice of discontinuance and the Commission’s file remains open. Moreover, the parties agreed that an order granting liberty to apply be made in connection with the restricted use order. Clearly enough, in my view, this contemplated further motions by either party in connection with the order and the dispute.

[21] The RTBU submits that the effect of the production order was to provide it with the documents and information that it had sought and therefore the dispute was “resolved” and “determined” for the purposes of clause 10.5(a) and (b) of the Agreement. I disagree.

[22] V/Line’s characterisation of the dispute is one concerning an investigation under clause 15 of the Agreement, whereas the RTBU characterised the dispute more narrowly by reference to the individuals who were the subject of the investigation. The F10 application refers specifically to the alleged misconduct of “multiple employees” who are then defined and further referred to as the “Employees”. Evidently, particular employees were at that time the focus of the investigation, but the application on its plain terms is not confined to particular individuals. Moreover, the application makes general reference to clause 15 and identifies the relief sought as answers to particular questions about whether information provided to “the Employees” satisfies certain requirements of clause 15. The fact that the particular employees who were being investigated have now resigned means that the dispute is partially resolved but there remains, in my view, an ongoing disagreement about the interpretation of the provisions in question.

[23] The RTBU further contented that the particular proposed supplementary order would not be in aid of resolving the dispute and therefore would be beyond power. 10 The RTBU submits that an order permitting V/Line to use the produced documents to investigate and take disciplinary action against an unnamed cohort of employees cannot be viewed as aiding the resolution of the dispute, and that it would therefore be contrary to clauses 10.5(a) and (b) of the Agreement, and consequently offend section 739(5) of the Act.11 However, these contentions effectively reiterate or restate the RTBU’s submissions on the proper characterisation of the dispute, which in my view is unduly narrow.

[24] I would also agree with V/Line’s submission that, if to make the supplementary order would not be in aid of resolution of the dispute, it is difficult to see how the original restricted use order could have pertained to the dispute.

[25] Finally, it appears to me that the Commission has the power under section 603 to vary or revoke a decision, including one expressed as an order in the form of the restricted use order. The Commission may vary or revoke a decision under section 603 on its own initiative or on application by a party. Procedural orders of the kind that are at issue here are commonly varied and revoked. The application made by V/Line is clearly still before the Commission, as it has not been withdrawn, dismissed, or otherwise determined. In my view, the Commission would have power under section 603 to vary the restricted use order so as to reflect the terms of the proposed supplementary order, because there is an extant order in a current proceeding. In any event, the powers under section 590 are available.

[26] For the above reasons, I consider that the Commission has power to make the supplementary orders.

Should the Commission issue the proposed supplementary order?

[27] The RTBU submits that, if the Commission has power to issue the supplementary order, it should nevertheless decline to do so in the exercise of its discretion. First, it submits that the restricted use order was in effect a restatement of, or constituted a ‘Harman undertaking’, whereby a party cannot use material obtained by coercive means for any other purpose than that for which the material was obtained. It further submits that the purpose of V/Line in seeking the supplementary order was effectively to be released from a Harman undertaking and that therefore the Commission should have regard to the principles applied by the courts in this regard, which are that a person will only be released from a Harman undertaking in special circumstances, and taking into account certain considerations. 12

[28] In the latter regard, the RTBU contends that the produced documents were recordings in which various unidentified persons can be heard speaking, and which was made surreptitiously. 13 It submits that V/Line has not confirmed that the Complainant, who made the recordings, consents to the proposed further order, and that the recording was presumably not created for the purpose of some broader investigation that V/Line now wishes to pursue.14 The RTBU submits that V/Line, having consented to the restrictions on purpose, should be held to those arrangements as part of the price it paid for obtaining the order for production from the Commission in the first place.15

[29] As to the consideration of whether removing the restriction would be likely to contribute to achieving justice in other proceedings, the RTBU contends that the information would have no probative value and little utility, containing unidentified voices speaking at unidentified times, and that V/Line refused to provide the RTBU’s lawyers with further information about how it proposed to use the information in its investigation. 16 The RTBU contends that all of these factors weigh against the Commission exercising its discretion to grant the supplementary orders.17

[30] V/Line contends that the principles applicable to Harman undertakings are not relevant in this matter, because such principles concern the production of documents by parties to a proceedings, whereas the documents in question here were produced from a third party, the Complainant. Further, the Harman undertaking is an implied one, whereas in the present case the orders made as to the use and purpose were express, and therefore the order displaced any implied undertaking that might otherwise have been obtained. 18

[31] V/Line further contends that the liberty to apply provision in the restricted use order is very relevant to the question of whether the Commission should exercise its discretion to issue the proposed supplementary order. In that regard, the parties and the Commission evidently contemplated changes to the orders that were made. V/Line submits that it is now availing itself of the liberty to apply provision and seeking a change to the restricted use order. It submits that, even if one has regard to the considerations that would be relevant to the question of whether a Harman undertaking should cease to apply, they tell in favour of the Commission exercising its discretion to grant the supplementary orders. 19

[32] As to the substance of the recordings, V/Line submits that the recordings identified employees who appear to have witnessed inappropriate conduct or engaged in it, including employees who were later dishonest with V/Line about their knowledge of such matters. For these reasons, V/Line submits that the documents are likely to contribute to achieving justice in any other proceedings (although it is by no means certain there will be any such proceedings). 20 Moreover, V/Line submits that it is a public sector employer whose employees are bound by the Code of Conduct for Victorian Public Sector Employees, which requires them to follow the spirit and letter of the law in relation to discrimination and harassment, matters to which the further investigation relates. V/Line further submits that it is therefore in the interests of justice that the supplementary order be made. In addition, it submits that the recordings were made lawfully, having regard to the Surveillance Devices Act 1999 (Vic), and were produced lawfully to the Commission. The Complainant made no objection to the order for production, nor did he ask for any restriction to be imposed on the use to which the recordings could be put.21

[33] V/Line submits that the recordings do not contain sensitive personal or commercial information, and that this presents no discretionary obstacle to granting the supplementary order. Moreover, the documents were produced in circumstances where it was agreed that the parties could apply for the order to be varied, and that is exactly what has occurred. The RTBU’s position now, submits V/Line, is to the effect that no liberty to apply should be possible, which amounts to resiling from the consent position that gave rise to the restricted use orders. 22

[34] The limitations contained in my previous order as to the purposes to which the documents could be used, reflected a consent position of the parties. I issued the order based on my assessment that it appeared reasonable in all the circumstances to do so, however, as the orders were by consent, I did not undertake any detailed examination of the merit arguments supporting the relevant restrictions being imposed. Therefore, a decision to lift, in effect, these restrictions would not represent any departure from a considered view. My order granting liberty to apply to vary the order was also by consent and clearly foreshadowed the possibility that the order could be changed. Further, having considered the submissions of the parties regarding Harman undertakings,I accept V/Line’s position that the principles ofa Harman undertaking do not prohibit the making of the proposed supplementary order.

[35] I am not persuaded that there is a good reason to maintain the restrictions. The interests of the RTBU are not directly affected by the proposed supplementary order. I appreciated that the RTBU’s members could, in principle, be affected by the making of the supplementary order, but there is no evidence as to how they will be effected, and no basis for me to conclude that any such effect would be prejudicial, in the sense of being unfair or inappropriate. In my view, V/Line has a good reason to seek the removal of the restrictions. It has concerns about possible employee misconduct and wishes to investigate these matters to determine whether its concerns are substantiated. In all the circumstances, I consider it appropriate to exercise my discretion to make the supplementary order.

[36] Importantly, this decision does not determine the question of whether it will be appropriate in all the circumstances for V/Line ultimately to rely on the information that is the subject of the proposed supplementary order in the course of any further investigation or in deciding upon possible disciplinary action if it concludes that any misconduct has occurred. If these matters become contentious, the appropriateness or otherwise of V/Line relying on the documents in question for the purposes of the investigation or disciplinary action may be the subject of a different dispute.

Conclusion

[37] The answer to the questions posed by the parties for determination by the Commission are as follows:

Question (a): In matter number C2019/5352 does the Fair Work Commission have power to make the proposed supplementary order?

Answer: Yes

Question (b): In the event that the Fair Work Commission concludes that it does have the power to make the proposed supplementary order should the Commission exercise its discretion to make the proposed supplementary order?”

Answer: Yes

[38] An order will be issued separately giving effect to this decision.

COMMISSIONER

Appearances:

Mr D. Trindade of Clayton Utz for V/Line

Mr Y. Bakri of Counsel for the RTBU

Hearing details:

21 April 2020 (by telephone)

Printed by authority of the Commonwealth Government Printer

<PR720441>

 1 Outline of Submissions of RTBU – Amended to Include Missing Pinpoint References dated 31 January 2020 (RTBU’s Amended Submissions) at [3]; Applicant’s Submissions in Reply dated 7 February 2020 (Applicant’s Submissions) at [3].

 2   Amended Agreed Chronology.

 3   Form F10 dated 28 August 2019.

 4 Applicant’s Submissions at [21].

 5 Applicant’s Submissions at [22].

 6 RBTU’s Amended Submissions at [30].

 7   Transcript PN440 – PN442.

 8 RTBU’s Amended Submissions at [39].

 9 RTBU’s Amended Submissions at [41].

 10 RTBU’s Amended Submissions at [43].

 11 RTBU’s Amended Submissions at [46].

 12   RTBU’s Amended Submissions at [52] – [54].

 13 RTBU’s Amended Submissions at [58].

 14 RTBU’s Amended Submissions at [59].

 15 RTBU’s Amended Submissions at [64].

 16   RTBU’s Amended Submissions at [66] – [74].

 17 RTBU’s Amended Submissions at [75].

 18   Applicant’s Submissions at [42] – [44].

 19   Applicant’s Submissions at [45] – [64].

 20   Applicant’s Submissions at [59] – [60].

 21   Applicant’s Submissions at [61] – [64].

 22 Applicant’s Submissions at [55].