1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Ross Kennedy
v
Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY
LTD, Qantas Group
(C2018/2983)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER CIRKOVIC MELBOURNE, 2 JULY 2018
Applications for Orders requiring production of documents – Applications for Orders
requiring persons to attend the Fair Work Commission.
[1] On 19 December 2017, Mr Ross Kennedy, the Applicant in unfair dismissal matter
U2017/11691, lodged with the Fair Work Commission (the Commission) several
interlocutory applications seeking orders for the production of documents in respect of his
unfair dismissal application.
[2] In summary, Mr Kennedy sought orders against:
the Respondent, Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty
Ltd, Qantas Group (QGS);
Dr Kipling Walker;
Recovery Partners;
MJSP Management Consulting; and
Allianz Insurance Australia.
[3] A conference was held before Deputy President Kovacic on 30 April 2018 to deal with
the applications (Conference). Participants at the Conference included Mr Kennedy, and Mr
Michael O’Neil (Qantas Group (Qantas)) and Mr Brett Hardy (QGS) for the Respondent.
[4] The morning session of the Conference was audio-recorded and the parties may access
this. However, the equipment failed to record the afternoon session of the Conference.
[5] In his decision of 14 May 2018,1 Deputy President Kovacic made several orders to
produce in response to Mr Kennedy’s applications, but declined to order the production of a
number of documents (the Interim Decision).
1 [2018] FWC 2689.
[2018] FWCFB 3847
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 3847
2
[6] On 1 June 2018, Mr Kennedy lodged a Notice of Appeal against the Interim Decision
in respect of decisions not to grant his requests for the production of certain documents
(matter C2018/2983).
[7] The appeal is listed for hearing before this Full Bench on 12 July 2018. As part of this
appeal, Mr Kennedy has lodged with the Commission four further interlocutory applications
which can be summarised as follows:
1. an application dated 14 June 2018 under s.590(2)(c) of the Fair Work Act 2009
(Cth) (the Act) for an order that Mr O’Neil and Mr Hardy produce:
(a) specified categories of documents exchanged between Qantas and Herbert
Smith Freehills (HSF) in the period from 28 March 2018 to 30 April 2018
(Application 1a); and
(b) notes taken by Mr Hardy at the Conference (Application 1b, together
‘Application 1’);
2. applications dated 14 June 2018 under s.590(2)(a) of the Act for orders that Mr
O’Neil and Ms Claudia Kernan of HSF attend the Commission hearing on 12 July
2018 to give evidence (Applications 2 and 3 respectively); and
3. an application dated 19 June 2018 under s.590(2)(c) of the Act for an order that
Deputy President Kovacic produce his handwritten notes taken at the Conference
(Application 4) (together, the Applications).
[8] Mr Kennedy has also made an informal request to the Full Bench for a copy of any
notes taken by the Deputy President’s Associate at the Conference.
[9] This decision concerns the Applications and the informal request noted above.
[10] Affected parties were afforded the opportunity to make written submissions in relation
to the Applications and email submissions were received from the Respondent and Ms
Kernan on 15 June 2018. The Respondent opposes the Commission granting any of the
Applications on various grounds,2 and Ms Kernan opposes the granting of Application 3 for
‘[m]any of the reasons … reflected in Mr O’Neil’s email.’3
[11] On 15 June 2018, Mr Kennedy sought the opportunity to respond to the Respondent’s
submissions. On 18 June 2018, the Commission requested Mr Kennedy to file his response by
5:00pm, 20 June 2018. No submissions were received from Mr Kennedy by that time.
[12] On 19 June 2018 Mr Kennedy wrote to the Commission requesting a separate hearing
or conference in respect of the Applications. On the same day, the Commission advised Mr
Kennedy that the Applications would be dealt with on the papers and that any other
submissions in support of the Applications were to be filed by 4:00pm, 21 June 2018. No
submissions were received from Mr Kennedy by that time.
2 Respondent’s submissions in reply, 15 June 2018.
3 Submissions in reply of Ms C Kernan, 15 June 2018.
[2018] FWCFB 3847
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[13] On 25 June 2018 Mr Kennedy filed three submissions in support of the Applications.4
On 26 June 2018 Mr Kennedy filed submissions in response to the Respondent’s submissions
of 15 June 2018.5
[14] The Full Bench has read and considered all of the material in reaching its decision.
[15] The Applications are made under s.590 of the Act, which relevantly provides:
‘590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter
before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
…
(c) by requiring a person to provide copies of documents or records, or to provide
any other information to the FWC’.
[16] Rules 53 and 54 of the Fair Work Commission Rules 2013 (Cth) respectively provide
that a party in a matter before the Commission may, by lodging a draft order, request that the
Commission inform itself in relation to the matter by issuing an order requiring a person to
attend before the Commission or provide copies of documents or records.
[17] Section 590 is found in Subdivision B of Division 3 of Part 5-1 of the Act.
Subdivision D of Division 3 of Part 5-1 is headed ‘Decisions of the FWC’. Section 601 in that
Subdivision relevantly provides:
‘601 Writing and publication requirements for the FWC’s decisions
(1) The following decisions of the FWC must be in writing:
(a) a decision of the FWC made under a Part of this Act other than this Part;
…
(2) The FWC may give written reasons for any decision that it makes.’
[18] The Explanatory Memorandum to the Fair Work Bill 2008 says in relation to what is
now s.601(2) of the Act:
‘Subclause 601(2) provides that FWA may give written reasons for any decision that it makes.
It is expected that FWA will provide written reasons for all decisions of significance. An
example where a written reason may not be necessary is a procedural decision.’ 6
4 Outlines of Submissions in support of two of the Applications for orders for the production of documents to the Fair Work
Commission, 25 June 2018 [Applications 1b and 4, and Application 1a]; and Outline of Submissions in support of the
two Applications for orders requiring a person to attend before the Fair Work Commission, 25 June 2018 [Applications 2
and 3].
5 Submissions in reply of Mr R Kennedy, 26 June 2018.
6 Commonwealth House of Representatives, Explanatory Memorandum, Fair Work Bill 2008, [2310].
[2018] FWCFB 3847
4
[19] As this decision is made under Part 5-1 of the Act, it is excluded from the requirement
for written decisions contained in s.601(1). Moreover, as the Explanatory Memorandum
indicates, written reasons may not be necessary in regard to procedural decisions such as this.
[20] However, while we are not required to issue a written decision, we consider it
preferable to briefly set out our reasons in respect of each of the Applications, and the
informal request. We will now address the Applications in turn.
Application 1
[21] Application 1 requests the production of certain documents exchanged between Qantas
and HSF as well as notes taken by Mr Hardy at the Conference.
[22] The principles applying to the issue of orders for production by the Commission under
s.590(2)(c) of the Act are well established.
[23] The power conferred by s.590(2)(c) is a discretionary one to be exercised for the
purpose of the Commission informing itself as to a matter before it. The Commission will be
guided in the exercise of its discretion by the practice followed by courts in civil proceedings
when issuing subpoenas. The documents sought must have apparent relevance to the issues in
the proceedings.7 Access to the documents sought must be for the purpose of supporting a
case which is intended to be advanced, not to explore if there is a supportable basis for a case
that might potentially be advanced.8 The documents required to be produced must be
described with sufficient particularity, and the burden of producing them must not be
oppressive.9
Application 1a
[24] Application 1a seeks all documents sent between named persons from Qantas and HSF
between 28 March 2018 to 30 April 2018 ‘in respect to the Applicant’s Unfair Dismissal
Remedy including the Applicant’s “Applications for Orders requiring a person to produce
documents etc to the Fair Work Commission” …’ made in matter U2017/11691.
[25] The Application states that these documents will inform the Commission if Qantas
‘has breached an Order made by the Fair Work Commission on 28 March 2018, and will
further inform if the Applicant has been subject to prejudice and disadvantage in the case that
QN [Qantas] has been non-compliant with the 28 March 2018 Order.’
[26] We understand the reference to the ‘28 March 2018 Order’ to be to the Deputy
President’s decision of that date to refuse to grant permission under s.596(2) of the Act for
QGS (not Qantas) to be represented by a lawyer in matter U2017/11691 (Representation
Decision).10
[27] We do not propose to make the orders sought, having regard to the matters below.
7 Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19].
8 Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19].
9 Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6].
10 [2018] FWC 1818.
[2018] FWCFB 3847
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[28] First, Application 1a is framed to cover documents in relation to Mr Kennedy’s unfair
dismissal application generally and is not confined to the documents that are the subject of
this appeal.
[29] Second, to the extent that Application 1a relates to Mr Kennedy’s requests for
documents that are the subject of this appeal, the Application seems to be directed to exposing
wrongdoing on the part of the Respondent and its legal representatives, rather than for the
purpose of supporting the case to be advanced with regard to the matters under appeal.
[30] Mr Kennedy submits that:
‘[i]t should be well-accepted that DP Kovacic’s Decision of 28 March 2018 which
refused the Respondent’s Application for legal representation by HSF disallows QN
[Qantas], QGS and Mr O’Neil from accessing the legal services and expertise of HSF
from 28 March 2018 on the Applicant’s Unfair Dismissal Remedy matter and related
matters including the Applicant’s ‘Applications for Orders to produce documents’ …
Compliance with Orders made by the FWC are integral to the proper administration of
justice and the Applicant should not be disadvantaged in the case that QN [Qantas]
and HSF have failed to follow DP Kovacic’s Order.’11
[31] We note that evidence about such matters would constitute new evidence in the
appeal. A Full Bench will normally deal with an appeal on the basis of the evidence in the
proceedings which led to the decision subject to the appeal. However, the Act confers a
discretion on a Full Bench hearing an appeal to admit further evidence and take into account
any other information or evidence.12 The principles established in Akins v National Australia
Bank13 are relevant to when the discretion to admit new evidence may be exercised. In that
case the Court noted that while it is not possible to formulate a test which should be applied in
every case, in general these three principles should be applied:
it must be shown that the evidence could not have been obtained with reasonable
diligence for use at the proceedings at first instance;
the evidence must be such that there must be a high degree of probability that there
would be a different decision; and
the evidence must be credible.
[32] We are not persuaded on the basis of Mr Kennedy’s submissions that the documents
sought have apparent relevance to the issues before this Full Bench; nor do we consider that
there is ‘a high degree of probability that there would be a different decision’ in view of such
evidence.
[33] The conduct of the Respondent does not appear to us to be materially relevant to the
appeal or to any real controversy in the appeal. The matter before us is to determine Mr
11 Mr Kennedy’s Outline of Submissions, 25 June 2018 [Application 1a], Grounds of Application at [1] and [8].
12 s.607(2) of the Act.
13Akins v National Australia Bank [1994] 34 NSWLR 155 at 160, and see JJ Richards & Sons Pty Ltd v Transport Workers’
Union of Australia [2010] FWAFB 9963, and Abigroup Contractors Pty Ltd v Mr John Crema, Mr Paul Edwards, Ms
Christine Comley and Mr Ray Allan [2012] FWAFB 8453.
[2018] FWCFB 3847
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Kennedy’s application to appeal the Interim Decision in respect of decisions by Deputy
President Kovacic not to grant his requests for the production of certain documents. It is not
directed to the conduct of the Respondent.
[34] In the circumstances, we do not propose to make the order sought with respect to
Application 1a. However, if the point Mr Kennedy wishes to establish is whether or not
lawyers were involved in the preparation of the Respondent’s objections to the orders to
produce in U2017/11691, and he satisfies us that this is relevant, he could seek to call Mr
O’Neil in the appeal hearing to put that question to him.
[35] Moreover, it is open to Mr Kennedy to make further applications for orders to produce
at any time in the course of his unfair dismissal proceedings, including once the parties’
respective outlines of submissions and evidentiary material have been filed.14 The question of
the relevance of such material to the matter before the Commission – Mr Kennedy’s unfair
dismissal application – would be considered at the time of any such application.
[36] In view of this decision, it is not necessary for us to decide the other issues raised by
the parties, namely:
whether the documents in question are subject to legal professional privilege; or
the legal effect of the Representation Decision (other than to observe that the Deputy
President’s correspondence of 18 June 201815 relates to matter U2017/11691 only and
the views expressed therein are not binding on this Full Bench. Should a party seek to
be represented in this appeal, this will be determined by the Full Bench).
Application 1b
[37] Application 1b seeks the production of notes taken by Mr Hardy at the Conference.
The request is made on the grounds that this ‘will inform the Fair Work Commission of
statements made by DP Kovacic in relation to the refusal by DP Kovacic of the Applicant’s
“Applications for Orders to produce documents”, and will seek to overcome prejudice and
disadvantage that flowed to the Applicant from the afternoon session of the 30 April 2018
Conference not being recorded.’
[38] It is unfortunate that no audio-recording is available to either party in relation to the
afternoon session of the Conference.
[39] Mr Kennedy has suggested that the absence of an audio-recording of the full
Conference has caused prejudice and disadvantage to him.
[40] Mr Kennedy submits that the documents are required for him to demonstrate to the
Full Bench that Deputy President Kovacic made ‘a significant error’ in making the Interim
Decision ‘that precluded the Applicant with procedural fairness on his “Applications for
Orders to produce documents”, and that ‘[t]he documents are also required for the Applicant
14 See also the Interim Decision at [20].
15 Attached to Mr Kennedy’s Outline of Submissions, 25 June 2018 [Applications 2 and 3].
[2018] FWCFB 3847
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to be used to identify the statements that DP Kovacic made and relied upon to refuse the
Applicant’s “Applications for Orders to produce documents”.’16
[41] Mr Kennedy submits that he was denied procedural fairness by the Deputy President
in the conduct of the Conference, including because he was not provided with a reasonable
opportunity to review and give a considered response to:
the Respondent’s ‘dense’ 76-page document entitled ‘QGS Objections to Amended
Orders to produce’, filed after commencement of the Conference; or
the position taken by the Deputy President during the afternoon session of the
Conference, ‘that the request for bullying documents would fail on relevance after
you [he] had quickly read Dr Walker's report’.17
[42] The Full Bench makes the following observations:
Neither of the parties has access to an audio-recording of the afternoon session of the
Conference, not simply Mr Kennedy.
Mr Kennedy was present at the Conference and was in a position to hear and make
notes regarding comments made by the Deputy President at the Conference.
In the appeal proceedings (assuming that the Full Bench is satisfied as to its
relevance), Mr Kennedy may himself give evidence of what was said in the
Conference or about the conduct of the Conference that he considers evidences
procedural unfairness to him. Where such evidence is contested by the Respondent,
the Respondent could lead its own evidence and this could be dealt with in the usual
way by the Full Bench.
[43] In view of these matters, it is not clear to us the basis on which Mr Kennedy asserts
that access to any notes taken by Mr Hardy would assist us in considering the grounds of
appeal.
[44] We also find it difficult to envisage circumstances where it might be appropriate for
the Commission to compel a party to provide access to their personal notes of a conference or
hearing to the other party, in a contested matter. We agree with the Respondent’s submission
that it would not be appropriate for Mr Kennedy to be given access to Mr Hardy’s notes taken
at the Conference, and accordingly, decline to exercise our discretion to require the
production of documents falling within Application 1b.
Applications 2 and 3
[45] Applications 2 and 3 respectively seek the attendance of Mr O’Neil of Qantas and Ms
Kernan of HSF at the Commission hearing on 12 July 2018, to give evidence.
16 Mr Kennedy’s Outline of Submissions, 25 June 2018 [Applications 1b and 4], Grounds of Application at [1] and [2].
17 Mr Kennedy’s Outline of Submissions, 25 June 2018 [Applications 1b and 4], Background to be relied upon at [33],
reproducing his email to Deputy President Kovacic of 3 May 2018.
[2018] FWCFB 3847
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[46] In deciding whether or not to issue an order to attend under s.590(2)(a) of the Act, the
Commission will consider whether attendance at the hearing by the person to whom the order
will apply will assist in the resolution of the matter before it.
[47] Both Applications provide for Mr O’Neil and Ms Kernan to give evidence as to any
‘unreasonable communications’ between HSF and Qantas, to purportedly inform the
Commission as to whether Mr Kennedy has been subject to prejudice and disadvantage in the
case that QGS (rather than Qantas) has ‘been non-compliant with the 28 March 2018 Order by
accessing the legal services and expertise of HSF.’ Mr Kennedy’s submissions in support of
the Applications mirror his submissions in relation to Application 1a.
[48] Mr O’Neil’s attendance is also sought to provide evidence about statements made by
Deputy President Kovacic at the Conference.
[49] Both Mr O’Neil and Ms Kernan have objected to the issuing of the orders. Mr O’Neil
has also advised that as he will already be in attendance at the hearing, the proposed order is
unnecessary.
[50] We decline to exercise our discretion to make the orders sought in circumstances
where Mr O’Neil has confirmed that he will be in attendance at the hearing.
[51] As noted at paragraph [34], if one of the points Mr Kennedy wishes to establish is
whether or not lawyers were involved in the preparation of the Respondent’s objections to the
orders to produce in U2017/11691, and he satisfies us that this is relevant, he could seek to
call Mr O’Neil in the appeal hearing to put that question to him. It is not necessary for Ms
Kernan to separately be ordered to attend for this purpose.
[52] In addition, and again subject to the Full Bench being satisfied as to the relevance of
any such evidence, Mr Kennedy could seek to call Mr O’Neil to give evidence about
statements made by Deputy President Kovacic at the Conference.
[53] Accordingly, we decline to exercise our discretion to make the orders sought by
Applications 2 and 3.
Application 4
[54] Application 4 is for Deputy President Kovacic to be ordered to produce any
handwritten notes taken by him at the Conference.
[55] Application 4 provides that the documents are sought as the Deputy President’s
Conference notes will inform the Commission of specific statements made by him in relation
to his refusal to grant in full Mr Kennedy’s applications for orders to produce documents in
matter U2017/11691, and ‘will seek to overcome prejudice and disadvantage that may have
flowed to the Applicant from the afternoon session of the Conference not being recorded. The
documents are also required to be included in the Applicant’s Appeal Book.’ Mr Kennedy’s
submissions in support of Application 1b are also made in support of Application 4.
[2018] FWCFB 3847
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[56] There are two documents that fall within the scope of Application 4:
a version of the Respondent’s submissions in relation to each of Mr Kennedy’s
applications for production of documents in matter U2017/11691 annotated by the
Deputy President; and
a short handwritten note made by the Deputy President (together, the DP Notes).
[57] The DP Notes are internal working documents taken by a decision-maker that were
created as part of the deliberative process.
[58] The DP Notes are immune from production because of the protection and immunity
conferred by s.580 of the Act upon Members of the Commission.
[59] Section 580, entitled ‘Protection of FWC Members’, provides:
‘An FWC Member has, in performing his or her functions or exercising his or her powers as
an FWC Member, the same protection and immunity as a Justice of the High Court.’
[60] The Explanatory Memorandum accompanying the Fair Work Bill 2008 states in
respect of the immunity:
‘FWA is an independent statutory agency. To enhance the independence of FWA Members
and provide them with freedom to make decisions, clause 580 provides that an FWA Member
has the same protection and immunity as a Justice of the High Court in performing his or her
functions or exercising his or her powers, including immunity from suit and immunity against
the disclosure of certain information.’
18
[61] In respect of the scope of the ‘protection and immunity’ accorded to a Justice of the
High Court, it is well-established that the ‘protection or immunity extends to protection from
compulsory disclosure of any aspect of the decision-making process’.19
[62] The DP Notes are documents that would tend to disclose an aspect of Deputy
President Kovacic’s decision-making process. The DP Notes were produced during the
Deputy President’s deliberative process about whether or not to grant the orders for
production sought by Mr Kennedy in matter U2017/11691. Accordingly, we decline to make
the order sought.
[63] However as noted in paragraph [42], subject to the Full Bench being satisfied as to its
relevance, Mr Kennedy may himself give evidence in the appeal hearing of what was said in
the Conference or about the conduct of the Conference that he considers evidences procedural
unfairness to him.
Associate notes taken at the Conference
[64] In addition, Mr Kennedy has made an informal request to the Full Bench for a copy of
any notes taken by Deputy President Kovacic’s Associate at the Conference.
18 Commonwealth House of Representatives, Explanatory Memorandum, Fair Work Bill 2008, [2254].
19 See Herijanto v Refugee Review Tribunal (No.2) (2000) 170 ALR 575, 576 [4]; Winters v Fogarty [2017] FCA 51.
[2018] FWCFB 3847
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[65] There is one document that falls within the scope of this request (Associate notes). The
Associate notes are informal working notes taken during the Conference, which comprise
notes of personal ‘follow-up’ activities and notes prepared to assist the Deputy President in
his decision-making process. The Associate notes do not form part of the tribunal record.
[66] We do not propose to grant access to the Associate notes, as:
we are not satisfied that the notes of personal ‘follow-up’ activities meets the
threshold test of relevance to the matter before us; and
any internal working notes taken to assist the Deputy President in his decision-
making process would be hearsay evidence and of limited probative value. As noted
at paragraphs [42] and [63], such evidence may be given by Mr Kennedy.
[67] For the reasons given, we do not propose to make the orders sought by Mr Kennedy in
this matter.
PRESIDENT
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PR608565
