[2015] FWCFB 2460
The attached document replaces the document previously issued with the above code on 10
April 2015.
The document has been edited to correct a typographical error in paragraph [24] by inserting
the word “to” in the first sentence.
Katrine Huynh
Associate to Vice President Hatcher
Dated 25 May 2015
1
Fair Work Act 2009
s.604 - Appeal of decisions
Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville
Coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd
v
Troy Brown; Campbell Dews; Damien Mason; Gregory Holmes; Jeffrey
Mason; and Glynis Sabbo
(C2015/2341)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER BULL SYDNEY, 10 APRIL 2015
Appeal against decisions [2015] FWC 1918 and [2015] FWC 2215 of Deputy President
Gooley at Melbourne on 19 and 30 March 2015 in matter numbers U2014/13979, 13980,
13981, 13982, 13983 & 13984.
Introduction
[1] Clermont Coal Pty Ltd, Clermont Coal Operations Pty Ltd, Collinsville Coal
Operations Pty Ltd and Glencore Coal Queensland Pty Ltd (collectively the “appellants”)
have applied for permission to appeal the following decisions and orders:
(1) Paragraphs [10] and [24]-[29] of the decision issued by Deputy President
Gooley on 19 March 20151 (First Decision).
(2) Orders 1-5 of an order for production of documents directed to Collinsville
Coal Operations Pty Ltd issued on 20 March 2015 pursuant to the First
Decision (First Order).
(3) Orders 1-5 of an order for production of documents directed to Glencore Coal
Queensland Pty Ltd issued on 20 March 2015 pursuant to the First Decision
(Second Order).
(4) Orders 3, 4, 6 and 7 of an order for production of documents directed to
Clermont Coal Pty Ltd issued on 20 March 2015 pursuant to the First Decision
(Third Order).
1 [2015] FWC 1918
[2015] FWCFB 2460
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 2460
2
(5) Orders 3, 4, 6 and 7 of an order for production of documents directed to
Clermont Coal Operations Pty Ltd issued on 20 March 2015 pursuant to the
First Decision (Fourth Order).
(6) The whole of the further decision issued by the Deputy President on 30 March
20152 (Second Decision).
(7) The whole of an order for production of documents directed to Collinsville
Coal Queensland Pty Ltd issued on 30 March 2015 pursuant to the Second
Decision (Fifth Order).
(8) The whole of an order for production of documents directed to Glencore Coal
Queensland Pty Ltd issued on 30 March 2015 pursuant to the Second Decision
(Sixth Order).
[2] The decisions and orders the subject of the application for permission to appeal were
made in connection with six applications for an unfair dismissal remedy filed under s.394 of
the Fair Work Act 2009 (FW Act). Each of the six applicants (applicants) was formerly
employed by Clermont Coal Operations Pty Ltd, and was dismissed from that employment by
reason of redundancy effective from about mid-November 2014. In each application, there is
a dispute as to whether the dismissal was a genuine redundancy. What constitutes a genuine
redundancy is defined in s.389. The dispute turns upon that part of the definition in s.389(2) -
that is, whether it would have been reasonable in all the circumstances for the applicants to
have been redeployed within the employer’s enterprise or that of an associated entity. One
aspect of the applicants’ case is that s.389(2) requires consideration as to whether it would
have been reasonable to redeploy them to perform work for Clermont Coal Operations Pty
Ltd, or for an associated entity of Clermont Coal Operations Pty Ltd, that is currently
performed by contractors or employees of contractors. Clermont Coal Pty Ltd, Collinsville
Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd are associated entities of
Clermont Coal Operations Pty Ltd.
[3] In the First Decision, the Deputy President dealt with a number of objections advanced
by the entities in relation to which the applicants sought orders for production (that is, the
appellants). The first objection was that certain categories of documents sought in relation to
work performed by contractors were not relevant because the test for genuine redundancy
under s.389(2) did not require consideration of the reasonableness of an employer or an
associated entity of the employer engaging contactors as opposed to employees. The Deputy
President dealt with this objection as follows:
“[8] I accept that this question has not been determined by a Full Bench of the
Commission. In Technical and Further Education Commission v Pykett3 the Full
Bench said “the Commission must find, on the balance of probabilities, that there was
a job or a position or other work within the employer’s enterprise (or that of an
associated entity) to which it would have been reasonable in all the circumstances to
redeploy the dismissed employee.”
2 [2015] FWC 2215
3 [2014] FWCFB 714
[2015] FWCFB 2460
3
[9] In Teterin and ors v Resource Pacific Pty Ltd4 the Full Bench did not question the
approach of the member at first instance to consider work performed by contractors
when he concluded that redeployment was not reasonable.
[10] The proposition put by the respondents is absolute. It submits that the
Commission could never consider the reasonableness of redeployment to a position
filled or proposed to be filled by a contactor or an employee of a contractor. One only
needs to consider the situation where an employer has a number of positions that it
intended having done by labour hire workers but circumstances changed and before it
engaged the labour hire workers it had to make employees who could do the job
redundant. On the interpretation put by the respondents, the Commission could never
consider if it would have been reasonable for the employer to redeploy the employees
to those positions. The question of the reasonableness of the redeployment must be
determined on the evidence before the Commission. I do not consider it appropriate to
determine this matter at this stage of the proceedings. This issue is legitimately in
dispute between the parties.”
[4] The second objection advanced is not presently relevant. The third objection was that
the period in relation to which documents were sought should be confined to 1 September
2014 to 30 November 2014, being the period encompassing from when the decision was
made that the applicants’ jobs were no longer required to be performed by anyone to when the
dismissals had all taken effect. The Deputy President upheld this objection and restricted any
orders to the period 1 September 2014 to 30 November 2014.5
[5] The fourth objection was that, in relation to the orders seeking documents from
Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd, the applicants
were “fishing”. The Deputy President rejected this as follows:
“[24] I do not accept Mr Murdoch’s submissions. It is clear that the reasonableness of
the redeployment is a matter the Commission must consider. The evidence in relation
to both the redeployment opportunities and the reasonableness of redeployment is
generally in the possession of the employer and its associated entities. The respondents
have submitted and called evidence that redeployment was not reasonable. The
employees are not fishing when they seek the production of documents to challenge
this contention.”
[6] The final objection was that the orders sought would require the production of
confidential documents, including commercially sensitive documents and documents which
would reveal the internal deliberations as to the industrial strategy or policy of the relevant
entities. In relation to the confidentiality aspect, the Deputy President determined that this
could appropriately be dealt with once the documents were produced, including by the
making of orders under ss.593 or 594.6 In relation to orders which sought information about
“the total number of employees required to attain optimum direct workforce level at
Collinsville”, the Deputy President did not accept that the documents sought would reveal the
4 [2014] FWCFB 4125
5 First Decision at [19]-[21]
6 First Decision at [26]
[2015] FWCFB 2460
4
internal deliberations as to the industrial strategy or policy of the entities.7 Consideration of
this objection in relation to some other categories of documents was deferred.8
[7] In the Second Decision the Deputy President dealt with this deferred issue. The
production of the documents was ordered on the basis that, once the documents were
produced, the applicants would be required to obtain an order from the Member of the
Commission allocated the applications for hearing in order to inspect the documents. The
Deputy President also confirmed that these further documents required to be produced would
be confined to the period 1 September 2014 to 30 November 2014.
Appellants’ submissions
[8] In its submissions in support of its application for permission to appeal, the appellants
advanced five propositions:
(1) The Deputy President erred in making orders 1-5 of the First Order and the
Second Order, and orders 3 and 4 of the Third Order and the Fourth Order,
because the documents sought could not be relevant because s.389(2), on its
proper construction, did not require consideration of the reasonableness of an
employee to be “redeployed” to a role performed by a labour hire contractor.
This submission essentially repeated the first objection raised by the appellants
at first instance and rejected by the Deputy President.
(2) Order 1 of the First Order and the Second Order also sought documents that
were not relevant insofar as it was not confined to the period 1 September 2014
to 30 November 2014. In this respect, the orders as issued were inconsistent
with the First Decision.
(3) Orders 6 and 7 of the Third Order and the Fourth Order were vague and
uncertain as to the “policies” required to be produced. The Deputy President
failed to deal with the appellants’ submission to this effect made at first
instance.
(4) The First Order, Second Order, Fifth Order and Sixth Order were “fishing” in
the sense that they were an attempt to discover whether there was any case at
all that redeployment to the Collinsville mine would have been reasonable in
circumstances where the applicants’ case was currently based merely on
suspicion and speculation. The Deputy President erred in rejecting this ground
of objection to the orders.
(5) Order 1 of the First Order and the Second Order sought documents which
would reveal internal deliberations as to the industrial strategy or policy of
Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd.
The Deputy President did not give any reasons for her conclusion otherwise,
and that conclusion was in error.
Consideration
7 First Decision at [27]
8 First Decision at [29]
[2015] FWCFB 2460
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[9] Under s.604(1), an appeal lies to a Full Bench only with permission. In relation to such
permission, s.604(2) provides: “Without limiting when the FWC may grant permission, the
FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.”
The effect of this provision is that permission must be granted if it is in the public interest to
do so, but may otherwise be granted on discretionary grounds.
[10] Section 400(1) modifies s.604(2) in relation to a certain category of decisions. It
provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
[11] “This Part” refers to Part 3-2 of the FW Act, which is concerned with unfair dismissal.
If section 400(1) applies, the public interest is the sole criterion for the grant or refusal of
permission to appeal. If the Full Bench does not consider that it is in the public interest to
grant permission to appeal, it must refuse such permission. It is not available to grant
permission on discretionary grounds.
[12] In this case, the decisions and orders the subject of the appeal were made in relation to
applications made under Part 3-2, but involved the exercise of general powers in s.590(2),
which lies outside of Part 3-2. The parties were at odds in that circumstance as to whether
s.400(1) applied to the appeal: the appellants submitted that it did not, but the respondents
submitted that it did.
[13] In Australian Postal Corporation v Gorman9 the Federal Court (Besanko J) gave
consideration as to whether, in an appeal from an order dismissing an unfair dismissal
application under s.587 of the FW Act, s.400(1) applied. The Court said:
“[37] The question of whether there was or was not a binding settlement agreement
is a question of fact, although no doubt informed by legal principles. In this case in
considering whether permission to appeal should be granted and in considering the
appeal itself the Full Bench was required to apply s 400 of the Act. I did not
understand the first respondent to contend otherwise. It seems to me that the Senior
Deputy President’s decision was a decision made ‘under this Part’ within subsection
400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection
400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy
President’s decision was a decision to dismiss the first respondent’s application made
under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part
3-2 in the same way as an order for re-instatement or compensation would be a
decision under that Part. Even if FWA’s general power to dismiss is contained in
subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter
3 Part 3-2. The same reasoning applies if regard is had not to the order but to the
ground upon which the order was made, that is, that the continued pursuit of the
application is frivolous or vexatious.”
9 [2011] FCA 975
[2015] FWCFB 2460
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[14] Consistent with the Court’s conclusion, we shall approach the appeal on the basis that
s.400(1) applies. However, for more abundant caution, we will alternatively state the
conclusion we would reach if s.400(1) did not apply.
[15] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as “a stringent one”.10 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment11. In GlaxoSmithKline
Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the
considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”12
[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.13 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.14
[17] The appeal here is brought against interlocutory decisions and orders. Courts and
tribunals have generally discouraged appeals against interlocutory decisions, and it will not
usually be the case that permission would be granted to appeal against an interlocutory
decision under s.604 of the FW Act, whether or not s.400(1) applies.15
[18] The second and third propositions advanced by the appellants may be disposed of at
the outset. In response to the second proposition, the respondents undertook that they would
not call on the production of the documents referred to in order 1 of the First Order and the
Second Order insofar as they did not pertain to the period 1 September 2014 to 30 November
2014. In response to the third proposition, the respondents accepted that the “policies”
referred to in orders 6 and 7 of the Third Order and the Fourth Order were policies in the
nature of documents generally available to employees for the purpose of providing guidance
on decision-making, and undertook not to call on the production of “policies” under those
orders which did not meet that description. We consider that those undertakings remove any
utility in granting permission to appeal on the basis of the appellants’ second and third
10 (2011) 192 FCR 78 at [43]
11 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
12 (2010) 197 IR 266 at [27]
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388,
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78; NSW Bar Association v
Brett McAuliffe [2014] FWCFB 1663 at [28]
15 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.
[2015] FWCFB 2460
7
propositions, irrespective of the merits of those propositions. The public interest will not be
attracted in respect of an appeal which has no practical utility.16
[19] The first, and primary, proposition advanced by the appellants in support of its
application for permission to appeal rests on a misconceived approach as to the assessment of
the relevance of documents for which an interlocutory order for production is sought. The test
is whether the documents sought have an apparent relevance to the issues in the
proceedings.17 Since, in the exercise of its discretion concerning the issuing of orders to
produce documents, the Commission will generally be guided by what applies in courts of
law18, the test of relevance applied by courts has usually also been applied by the
Commission. The challenged orders clearly satisfy that test. The applicants in the unfair
dismissal applications contend (among other things) that, for the purposes of s.389(2), it was
reasonable for them to be redeployed to perform work currently done by contractors. Any
documents which would be likely to demonstrate that, during the relevant period, there was
work being performed by contractors which could be performed by the applicants would be of
apparent relevance to that issue in the case.
[20] That Clermont Coal Operations Pty Ltd intends to argue at the hearing that s.389(2)
does not permit the consideration of redeployment to work performed by contractors does not
alter the position. The consideration of relevance in relation to an application for an order for
the production of documents does not require the advance determination of a contested issue
in the matter, with relevance then to be assessed on the basis of that determination. To adopt
the approach advanced by the appellants would have the undesirable effect of making an
interlocutory hearing concerning production of documents a forum for the resolution of the
major issues in contest in the proceedings. The position might be different if a party seeks the
production of documents to support a case which is not reasonably arguable. However, it was
not suggested by the appellants that the applicants’ case fell into this category. We were not
taken to any decision in which the issue in contest has been determined. It remains an issue
which will require resolution at the hearing.
[21] No issue of the Commission’s power is involved here. The power of the Commission
under s.590(1) to “inform itself in relation to any matter before it in such manner as it
considers appropriate”, which under s.590(2)(c) includes requiring the production of copies
of documents and records to the Commission, is expressed in very broad terms. The Deputy
President clearly had power to make the orders the subject of this appeal.
[22] As to the fourth proposition concerning “fishing”, the Deputy President made an
evaluative judgment about this issue. In the absence of any contention that compliance with
the orders for production would be oppressive, we do not consider that the public interest
would require any revisitation of this issue even if there was an arguable case of error.
[23] In relation to the fifth proposition, this Commission and its predecessors have
traditionally been cautious in ordering any party to produce documents which would reveal
16 Ferrymen Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8025 at [48]
17 Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103; Re Clerks' (Alcoa of Australia - Mining and
Refining) Consolidated Award 1985 Print H2892, 2 June 1988
18 Re Clerks (Alcoa) Case Print H2892 at p 2: “In its exercise of a broad discretion and judgement over use of the power, the
Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use
of a subpoena to produce documents”.
[2015] FWCFB 2460
8
internal deliberations as to its industrial strategy or policy. However, this has never been
elevated to an absolute rule, akin to a privilege, that any such documents will never be
ordered to be produced.19 It is not clear to us why compliance with the relevant orders will
require documents of that nature to be disclosed. If, after the orders are complied with, a view
crystallises on the part of any of the appellants that any of the documents produced would
disclose internal deliberations as to industrial strategy or policy, they may, consistent with
what was stated by the Deputy President in her decisions, apply to the Member hearing the
substantive proceedings for orders to be made to impose appropriate limitations on access to
the documents (including, for example, the redaction of documents). If the documents
ultimately find their way into evidence, a party may apply to the Member for confidentiality
orders under ss.593 or 594 of the FW Act. If any such application was made, we do not
consider that the Member, who would have the capacity to inspect the particular documents in
question, would be in any way bound by the view expressed by the Deputy President in
paragraph [27] of the First Decision (or by any view we have expressed). In those
circumstances, there does not appear to us to be any utility in granting permission to appeal in
respect of this issue, taking into account that it was not suggested that the applicants sought
the production of the relevant documents for any collateral or improper purpose.
[24] Having considered all of the matters raised by the appellants, we are not satisfied for
the purposes of s.400(1) that it would be in the public interest to grant permission to appeal.
Alternatively, even if s.400(1) is not applicable to this case, we are not satisfied that the
appellants have advanced any discretionary ground which would justify the grant of
permission to appeal.
[25] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
C. Murdoch of counsel with K.Anderson solicitor for the appellants.
S. Crawshaw SC with A.Bukarica for the respondents.
Hearing details:
2015.
Sydney:
8 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562928
19 Comalco Aluminium (Bell Bay) Limited v AWU-FIME Print L5800, 13 October 1994; Finance Sector Union of Australia
v Comsec Trading Limited PR946862 [2004] AIRC 708 at [27]. As a general proposition, confidentiality or commercial
sensitivity alone is not taken to be a proper ground for objection to the production of relevant documents to a court or
tribunal: Santos Ltd v Pipeline Authority of SA [1996] SASC 5628 per Perry J at [76]-[77].
OF THE FAIR WORK MISSION THE
