| [2021] FWC 3684 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union; Peter Cowan; Darren Sisson; Rod McLean; Dayle Marriott; David Bickhoff
v
Falcon Mining Pty Ltd T/A Falcon Mining
(C2020/4783)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 25 JUNE 2021 |
Order for the production of documents – proposed redaction of documents produced in answer to order for production
[1] This decision concerns an application by Falcon Mining Pty Ltd (Falcon Mining) for certain parts of documents produced by it to the Fair Work Commission (Commission) in response to an order for the production of documents to be redacted before the applicants are given access to those documents.
[2] The relevant background to this matter is set out in my earlier decision 1 concerning the making of an order for production of documents sought by the applicants. For ease of reference, I repeat that background below:
“[1] The CFMMEU is the first applicant in these proceedings. It is also the representative of the second, third, fourth, fifth and sixth applicants, who were formerly employed by Falcon Mining Pty Ltd (Falcon Mining).
[2] The second to sixth applicants (Employees) were covered by the Falcon Mining Enterprise Agreement 2017 (Enterprise Agreement) during their employment with Falcon Mining.
[3] The Employees’ contracts of employment with Falcon Mining include the following terms:
“3. Nature and Location of Employment
Your classification is prescribed in Schedule A. Unless terminated earlier in accordance with the terms of this Contract, you will be employed on a full time fixed term basis for the maximum commercial term of the Project defined in Schedule A. Upon completion of the Project, your employment (and this contract) will end without the need for either party to provide notice of Falcon Mining to provide any termination payment.
…
Schedule A: Contract Summary
…
Item 5 Name of Project/ Location Contract Number: NC1705 – Cut and Fit
Development Work
Narrabri”
[4] In about June 2020, Falcon Mining gave notice to the Employees that their “employment will come to an end on 26 June 2020, the date that the Contract will reach its maximum commercial term. You are required to attend site to work your remaining rostered shifts up until and including 26 June 2020.” Falcon Mining has also informed the Employees that they are not entitled to notice of termination or redundancy pay.
[5] The Employees claim, inter alia, that they are entitled to notice of termination and redundancy pay under the terms of the Enterprise Agreement. They say that the Project reached its maximum commercial term and was completed in late 2019, and they remained employed by Falcon Mining on a different project or doing different work from late 2019 until their termination in late June 2020.
[6] Falcon Mining contends, inter alia, that the Project came to an end on 26 June 2020. Falcon Mining has produced correspondence with its commercial client, Narrabri Coal Operations Pty Ltd (Company), to support its contention in that regard.
[7] The applicants have asked the Commission to determine the answers to the following questions by way of arbitration under the dispute settlement procedure in the Enterprise Agreement:
1. Whether any of Falcon Mining’s employees engaged to perform work at the Narrabri Underground Coal Mining Operation are entitled to:
a. notice of termination (or payment in lieu of notice) pursuant to clause 11 of the Enterprise Agreement?
b. payment of untaken paid personal/carer’s leave at the termination of their employment pursuant to clause 11.8 of the Enterprise Agreement?
c. payment of severance pay and/or retrenchment pay pursuant to clause 12 of the Enterprise Agreement?
d. payment in respect of their accrued entitlement to paid annual leave under clause 21 of the Enterprise Agreement and s 90(2) of the Fair Work Act 2009 (Cth)?
2. If the answer to any of the questions in 1 above is “yes”, what amount is payable in respect of each employee?
[8] Falcon Mining has proposed the following question for determination by the Commission:
Are the Employees fixed term (including maximum term) employees under clause 8.2 of the Enterprise Agreement?
[9] I have informed the parties that I will hear and consider both sets of questions in the arbitration of the dispute.”
[3] Terms defined in my earlier decision dated 23 April 2021 have the same meaning in this decision.
[4] Both parties filed and served detailed written submissions in relation to the request by Falcon Mining to redact parts of documents before the applicants are given access to them. In addition, Falcon Mining filed and served a statement by Mr McKenzie dated 20 May 2021. I have read and considered those submissions and Mr McKenzie’s witness statement. I have also read and considered the parts of the documents in respect of which the request for redaction has been made.
[5] The relevant principles concerning the making of an order for the production of documents are set out in paragraphs [14]-[15] of my earlier decision dated 23 April 2021. Those principles are also relevant to the dispute concerning whether or not I should exercise my discretion to permit parts of documents to be redacted before the applicants access them. In short, the interests of justice require that I balance a range of considerations including, on the one hand, the interests of Falcon Mining and third parties such as the Company in keeping the commercially sensitive aspects of documents such as the Work Contract confidential and, on the other hand, the interests of the applicants in ensuring that material which has apparent relevance (in the sense of throwing light on one or more issues in the proceeding) is available to parties to enable them to advance their respective cases.
[6] Falcon Mining’s submissions in support of its contention that parts of the Works Contract should be redacted seek to cavil with my earlier ruling as to the breadth of issues in dispute and the apparent relevance of the Works Contract to those issues. The relevant parts of my earlier ruling are as follows:
“Issues in dispute
[17] There are a broad range of issues in dispute between the parties to these proceedings. Those issues include the following:
• whether the Employees were “fixed term” employees within the meaning of the Enterprise Agreement?
• what was the maximum commercial term of the project known as Contract Number: NC1705 – Cut and Fit Development Work (Project)?
• when was the Project completed?
• did the contract between Falcon Mining and the Company (Works Contract) conclude before the termination of the Employees? The applicants describe this as the early termination issue.
• did the work required of the Employees depart from that in the scope of the Works Contract? The applicants describe this as the work outside scope issue.
Documents sought by the applicants
[18] I will now address each of the categories of documents sought by the applicants.
Category 1(a)
“1. Copies of any and all of the following documents that are in the possession, control or custody of Falcon Mining Pty Ltd:
(a) Entire and unredacted copy of the Works Contract 2017 – NC1705 (Works Contract)”
[19] In an earlier decision, 2 I determined that various clauses of the Works Contract which Falcon Mining wanted to remain redacted ought not be redacted because they were of apparent relevance to issues in the proceedings and did not disclose any commercially sensitive information. A copy of the Works Contract (redacted in accordance with my earlier decision) was provided to the applicants in about mid-2020.
[20] The applicants now contend that they should be given access to a completely unredacted version of the Works Contract. They submit that it is essential to see the full terms of the Works Contract because they are central to understanding the “maximum commercial term” of the Works Contract, ascertaining whether the Works Contract came to an end, and ascertaining whether the work being performed by the Employees fell outside the scope of the Works Contract, and the extent of such work.
[21] I accept that the Works Contract is of apparent relevance to these issues. Further, in light of the detailed questions which have now been posed for determination and the evidence filed in relation to them, it is apparent that the extent of the legal and factual issues in contest in this matter is broader than could have reasonably been anticipated at the time I made the previous decision concerning the Works Contract in mid-2020. I accept the applicants’ contention that they need to see the entire Works Contract, save purely commercial terms such as the pay rates in the contract, to construe the relevant provisions of the Works Contract in context and make submissions about the issues identified above.
[22] I will make an order in terms of category 1(a) but invite Falcon Mining to make any submissions it wishes to make on the question of access to the Works Contract and confidentiality when it produces the Works Contract to the Commission in response to the order for production of documents.”
[7] In the table below I set out my rulings in relation to each part of the Works Contract in respect of which Falcon Mining has made a claim for redaction. The balance of the Works Contract has already been provided to the applicants.
Part of Works Contract |
Ruling – proposed redactions permitted to remain redacted? – Yes or No | |
Page 3 |
Yes as to the information in the “Details” column of Item 8, Item 9 and Item 10. Otherwise no. | |
Page 9 |
No | |
Page 10 |
Yes as to the definition of “Consequential Loss”. Otherwise no. | |
Page 11 |
Yes as to the definitions of “Contract Price” and “Direct Cost”. Otherwise no. | |
Page 12 |
Yes as to the definition of “Force Majeure”. Otherwise no. | |
Page 13 |
Yes as to the definitions of “Loss”, “Mark-up” and “Overhead Fee”. Otherwise no. | |
Page 14 |
Yes as to the definitions of “Parent Company Guarantee” and “PEV Damage Cap”. Otherwise no. | |
Page 15 |
Yes as to the definition of “Termination Break Costs”. Otherwise no. | |
Page 16 |
No | |
Page 18 |
Yes as to clause 5. Otherwise no. | |
Page 19 |
No | |
Page 20 |
No | |
Page 21 |
Yes as to clause 13. Otherwise no. | |
Page 22 |
Yes as to the balance of clause 13 and clause 14. Otherwise no. | |
Page 23 |
No | |
Page 24 |
Yes as to clause 16.6. Otherwise no. | |
Pages 25, 26 and 27 |
No | |
Page 28 |
Yes as to clause 17.4. Otherwise no. | |
Pages 29 and 30 |
No | |
Page 31 |
No as to the first line - “for the Contractor’s Personnel”. Otherwise yes. | |
Page 32 |
Yes | |
Page 33 |
No as to clause 26. Otherwise yes. | |
Page 34 |
No as to the balance of clause 26. Otherwise yes. | |
Page 35 |
No | |
Page 36 |
No | |
Page 37 |
Yes as to clause 32. Otherwise no. | |
Pages 38 and 39 |
Yes | |
Pag 40 |
Yes as to the balance of clause 35. Otherwise no. | |
Page 42 |
Yes as to clause 38. Otherwise no. | |
Pages 43, 44, 45, 46 and 47 |
Yes | |
Page 48 |
Yes as to the balance of clause 42. Otherwise no. | |
Pages 49, 50, 51 and 52 |
No | |
Page 53 |
Yes as to clause 52. Otherwise no. | |
Page 54 |
Yes | |
Page 55 |
No | |
Page 56 |
Yes as to clause 56.5. Otherwise no. | |
Page 57 |
No | |
Pages 59, 60, 61 and 62 |
No | |
Pages 68 and 69 |
No | |
Page 70 |
Yes as to clause 12.4. Otherwise no. | |
Pages 71, 72, 73, 74 and 75 |
No | |
Pages 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 and 90 |
Yes | |
Pages 94, 95, 96, 97, 98, 99, 100 and 101 |
Yes | |
Pages 102, 103, 104, 105 and 106 |
No | |
Pages 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 and 126 |
Yes |
[8] Where I have ruled above that a part of the Works Contract may be redacted by Falcon Mining, that is because I am satisfied that the information to be redacted is highly commercially sensitive and does not have any apparent relevance to the issues in dispute. Where I have ruled above that a part of the Works Contract is not to be redacted, that is because the information has apparent relevance to the issues in dispute and the commercial sensitivity of the information does not warrant or justify its redaction.
[9] My rulings in relation to each part of the other documents in respect of which Falcon Mining has made a claim for redaction are as follows:
Page in Falcon Mining’s bundle of documents |
Ruling – proposed redactions permitted to remain redacted? – Yes or No |
Reasons for ruling | |
133 |
Yes as to third bullet point. Otherwise no. |
• Third bullet point relates to an accommodation allowance paid to a particular employee. The information in the third bullet point is not of any apparent relevance to the issues in dispute. • The first two bullet points relate to hours to be worked by employees and may throw light on when particular work was completed. The commercial sensitivity of this information does not warrant or justify its redaction. | |
148-159 and 161 |
Yes |
• The labour rate and labour cost figures are highly commercially sensitive. They are not of any apparent relevance to the issues in dispute. • The quantity of labour and other items are not proposed to be redacted. This information may throw light on when particular work was completed. • The % overhead fee and % mark up amounts on page 161 are highly commercially sensitive. They are not of any apparent relevance to the issues in dispute. | |
Pages 832, 834-836, 838, 842, 844-846, 848-849, 851, 853-855, 857-859, 861, 864-867, 869, 871-872, 874-875, 877, 879-886, 888-889, 891-892, 894-896, 898-900, 902-904, 906-910, 912-913, 915-921 and 923-924 |
No as to the “HR” information on the following pages: - 832 Otherwise yes. |
• The “HR” information may throw light on when particular work was completed. The commercial sensitivity of this information does not warrant or justify its redaction. • The “health, safety and environment”, “accommodation” and “COVID-19” information which is proposed to be redacted is not of any apparent relevance to the issues in dispute. |
[10] For the reasons given above, by 4pm on 2 July 2021, Falcon Mining is directed to provide the Associate to Deputy President Saunders with a fresh copy (electronic, preferably) of all documents produced by it in response to the order for production of documents made by Deputy President Saunders, with parts of such documents redacted in accordance with the rulings set out above. On receipt of such documents, the Commission will send an electronic copy of them to Mr Bukarica and Mr Patrick of the CFMMEU.
DEPUTY PRESIDENT
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