1
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, 23 APRIL 2021
Order for the production of documents.
Introduction and background
[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/ Contract Number: NC1705 – Cut and Fit
Location Development Work
[2021] FWC 2289
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 2289
2
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.
[10] Both parties have filed and served detailed witness statements, submissions and
documents in accordance with my directions. The arbitration is scheduled to take place on 4
and 5 May 2021.
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[11] On 31 March 2021 the applicants filed an application for an order for the production
of documents. Falcon Mining opposes the order on a number of grounds.
[12] Both parties filed detailed written submissions in relation to the application for the
order for production of documents. I have read and considered those submissions.
[13] On 23 April 2021 I conducted a hearing, by telephone, in relation to the application for
the order for production of documents. The applicants made oral submissions to supplement
their written submissions. Falcon Mining relied on a witness statement made by Mr Shaun
McKenzie dated 13 April 2021. Mr McKenzie was not required for cross examination. I have
read and considered Mr McKenzie’s statement. Falcon Mining also made oral submissions on
23 April 2021 to supplement its written submissions.
Relevant principles
[14] In Esso Australia Pty Ltd v AWU & Ors,1 the Full Bench made the following
observations in relation to the approach that ought be taken to an application for an order for
the production of documents:
“The principles to be applied in determining whether and if so what form of order
should be made are not seriously in contention, and as the Unions point out, these
principles were summarised in Australian Nursing Federation v Victorian Hospitals’
Industrial Association, which we adopt without repeating them. It is sufficient to
observe that the power under s.590(2)(c) to require a person to provide copies of
documents or records, or to produce any other information to the Commission is a
discretionary power, the exercise of which is to be guided by the principles adopted by
courts in civil proceedings when compelling a person to produce documents, records
or other things. Matters that will guide the exercise of the discretion to require
production include relevance, the particularity with which the documents or category
of documents that are to be the subject of the order sought are described, the extent to
which the burden placed on a person required to comply with the order is reasonable,
the extent to which particular documents sought amount to no more than fishing, and
the proper administration of justice in the sense that material that is relevant to an
issue or issues that fall for determination is available to parties to enable the parties to
advance their respective cases.”
[15] The summary of principles to which the Full Bench referred in Australian Nursing
Federation v Victorian Hospitals’ Industrial Association2 is as follows (references omitted):
“[10] The power to require the provision of documents, records or other things is a
broad discretionary power to be exercised in accordance with the principles applied by
the Courts.
[11] In The Queen v Marks; Ex parte Australian Building Construction Employees and
Builders Labourers’ Federation, Justice Mason, as he then was, discussed the use of
the discretion to issue a summons and said:
1 [2017] FWCFB 2200 at [6]
2 [2011] FWA 8756 at [10]-[13]
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“When application is made for the issue of a summons the Commission has
discretion to grant or refuse it. Generally speaking, the Commission will
exercise its discretion in favour of the applicant unless it appears that it would
be vexatious or frivolous or otherwise an abuse of process to issue
the summons.”
[12] The principles applied by the Courts in the exercise of the discretionary power to
issue a summons were identified by: Munro J in Re Clerks' (Alcoa of Australia -
Mining and Refining) Consolidated Award 1985:
“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
document. Any such subpoena must specify with reasonable particularity
documents which are required to be produced. It may be sufficiently specific to
identify documents to be produced by reference to the subject matter to which
they relate. In the case of a corporation, it is usually appropriate, where the
custodianship of documents is not clear, to direct the subpoena to the `Proper
Officer'. It is not legitimate to use a subpoena for what, in effect, would be
discovery of documents against a person not liable to make discovery, or as a
substitute for discovery which should be applied for at the proper time. The
documents sought must be of a nature capable of being relevant to an issue
which might legitimately arise on the hearing of the matters in dispute. In the
first instance the documents are produced to the tribunal upon whom it falls to
examine the documents, assess their relevance and determine what access by
the parties to the documents may be appropriate; (section 187 of the Act
appears to be the statutory counterpart of this principle of practice). A party
will not be required to produce documents where to do so would be
oppressive; or where the demand for production is a `fishing expedition', in the
sense that it is an endeavour not to obtain evidence to support a case, but to
discover whether there is a case at all. Where the proper use of legal
compulsion to produce documents is in issue, the tribunal will need to carryout
an exercise of judgement upon the particular facts in each case. That
judgement requires a balance on the one hand of the reasonableness of the
burden imposed upon the recipient, and of the invasion of private rights, with
on the other hand, the public interest in the due administration of justice and
in ensuring that all material relevant to the issues be available to the parties to
enable them to advance their respective cases.”
[13] An exposition of the principles with particular focus on issues of confidentiality
is contained in the decision of His Honour Vice President Lawler in Association of
Professional Engineers, Scientists and Managers and Airly Coal Pty 3. In McIlwain v
Ramsey Food Packaging Pty Ltd and others, Justice Greenwood summarised the
principles which govern the courts in relation to discovery and subpoena to produce
documents. I have had regard to this summary, so far as it concerns subpoena to
produce documents in considering this Application. Removing those aspects of the
summary dealing with discovery, the relevant principles identified by Greenwood J
relevant to these proceedings are:
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa8756.htm#P69_6186
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a) A writ of subpoena duces tecum is competent against both a party and a stranger to
the proceeding: The Adelaide Steamship Company v Spalvins.
...
d) The documents for production must be identified with reasonable particularity. The
category of documents must not be so wide as to be oppressive.
e) The documents must be relevant to an issue raised on the pleadings and be used to
elicit documents to support the applicant’s existing case. It cannot be used for
purposes of ‘fishing’ or for the purpose of determining a preliminary question as to
whether the party has a supportable case or to investigate the character of the opposing
party’s evidence.
f) The test for relevance does not require that a party demonstrate direct relevance to
the contest between the parties. Rather, the documents must have some potential
relevance to the pleadings as they stand. In Australian Gas Light Company v
Australian Competition & Consumer Commission, French J summarised the matters
which are relevant to the grant of leave:
"It is not appropriate to be overly prescriptive in setting out criteria for the
grant of leave to issue a subpoena. Plainly, the documents sought must have at
least some apparent potential relevance to the matters in issue in the litigation.
The assistance that the requesting party may derive from the production of
such documents must be taken into account. Case management considerations
are also relevant. A wide-ranging subpoena, seeking documents of doubtful
relevance at great inconvenience to, or that risk compromising the commercial
privacy of, a third party, may not readily attract the grant of leave. Where the
issue of such a subpoena is likely to delay progress to trial because of the
legitimate interests of a party in resisting its issue, that may also be a practical
factor to be weighed."
g) The same notion was expressed in Small (575) and Dorajay Pty Limited v
Aristocratic Leisure Limited, [34] in requiring the existence of a legitimate forensic
purpose for the production of documents.
h) In Trade Practices Commission v Arnotts Limited (No. 2), Beaumont J said that the
question of whether a subpoena should go can conveniently be addressed by reference
to two questions. First, does the material sought by the subpoena have an apparent
relevance in a descriptive or adjectival sense rather than a substantive sense? Does the
subpoena have a legitimate forensic purpose to this extent from the perspective of the
party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair
burden or prejudice upon the respondent to the subpoena?
i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation suggested that
adjectival relevance looks toward the possibility whether the material sought could
reasonably be expected to throw light on some of the issues in the principal
proceedings.
j) When a party contends material that either is or may be or may have been in the
possession, custody or power of a respondent relates to any question or issue raised on
the pleadings, they will be taken to mean that the material is relevant in the sense
contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if
accepted, could rationally affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the proceedings. This is
the substantive relevance of the material. The test for the issue of the subpoena is
http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/
http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s55.html
[2021] FWC 2289
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whether the material appears to have relevance in the sense of throwing light on at
least some of the issues in the principal proceeding.
k) The relevance of the documents must not be disproportional to any benefit that their
production might have for the respondent.
l) A subpoena ought not issue in circumstances where it would unduly disrupt the
conduct of the trial by requiring the Court to read documents which could have been
obtained at an earlier stage in the proceedings.
m) The issue of the subpoena must not, in all the circumstances be oppressive in terms
of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously
unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and
unjustified trouble and harassment’.
n) The issue of a subpoena against a stranger to the proceeding is more likely to
succeed later in the proceeding. Though there is no formal barrier to a subpoena to
produce being returnable prior to the hearing, the document may well be premature
where no trial date has been fixed. Where the proceeding is of considerable
evidentiary complexity there is stronger force to serving the subpoena at an earlier
stage.
o) In Dorajay Pty Limited v. Aristocrat Leisure Limited, Stone J noted the
observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries, summarising
the views of Moffitt P in National Employers’ Mutual General Association Ltd v.
Waind & Hill to the effect that whether subpoenas are oppressive or an abusive
process depends on whether "it is reasonably likely to add, in the end, in some way or
other, to the relevant evidence in the case". Her Honour said at paragraph [18]:
"These authorities show that the criteria by which one determines whether a
subpoena should be set aside, in whole or in part, may be expressed in
different ways but ultimately, they all come down to whether such action is
required to prevent an abuse of the processes of the court to prevent injustice.
As Deane and Gaudron JJ recognised in the comments quoted by Beaumont J
[in Trade Practices Commission v. Arnotts Limited], various terms may be
used in focusing these concerns on the circumstances of a particular case. In
this case, whether the documents are relevant (in the sense used by Beaumont
J) will determine the issue provided that the requirements of the subpoena are
not otherwise oppressive."”
[16] I will apply these principles in determining the present application.
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?
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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,3 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.
Category 1(b)
3 [2020] FWC 3936
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“(b) Any drawing, specification, plan, sketch or map created or required for the
performance of the Works Contract (cl 1, Definitions and interpretation,
Contract Documentation).”
[23] This category is not pressed by the applicants. Had it been pressed, I would have
rejected it for the following reasons. Although the documents sought have some apparent
relevance to the scope of the Works Contract, which bears on the early termination issue and
the work outside scope issue, other documents which I will order Falcon Mining to produce
will be of far greater weight in determining the scope of the Works Contract, when relevant
work was completed, and the other issues in dispute. Further, I accept Mr McKenzie’s
evidence that there would be hundreds of these documents of multiple different sizes from
architectural/plan size to A4 size and Falcon Mining’s old computer system would need to be
interrogated to search for such documents. In all the circumstances, I consider that it would be
unreasonably burdensome and oppressive to require Falcon Mining to produce documents in
answer to category 1(b).
Category 1(c)
“(c) Any document showing the Date for Practical Completion, including any
document showing any adjusted Date for Practical Completion.”
[24] The Date for Practical Completion of the Works Contract is plainly relevant to the
issues in dispute. However, this category as drafted would require Falcon Mining to conduct
very extensive searches, such as for diary or file notes made by employees of Falcon Mining
recording the Date for Practical Completion or any adjustment of that date. I will limit the
category to a more specific and focused class of documents, as follows:
“(c) Any written communication in the period after June 2019 between Narrabri
Coal Operations Pty Limited and Falcon Mining Pty Ltd evidencing or
recording document showing the Date for Practical Completion, including any
document showing any adjusted Date for Practical Completion.”
[25] Both parties indicated at the hearing of the application that they were content to accept
this revised version of category 1(c).
Category 1(d)
“(d) Any direction by the Company to the Contractor:
i. in relation to the performance of the works under the Works Contract
(cl4(a)(4);
ii. as to the order and/or time that various parts of the Work are to be carried
out (cl 15.1);
iii. to carry out a Variation (cl 37.2(a); 37.5);
iv. regarding the performance of any work forming part of “Separable
Portion 2” of the Works Contract;
v. regarding the performance of work on Mains 200;
vi. regarding the performance of work on the MG202 Panel Entry;
vii. regarding the performance of work on the MG202 face road;
viii. regarding the performance of work at any other location”
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[26] The documents sought by this category have apparent relevance to the early
termination issue and the work outside scope issue. However, the expressions “in relation to”
and “regarding” are very broad and would require extensive searches to be made for a range
of documents. In my view, the category as presently drafted is not specific enough. I will limit
the category to a more specific and focused class of documents, as follows:
“(d) For the period post October 2019, any direction by the Company to the
Contractor:
i. in relation to the performance of the to carry out works under the
Works Contract (cl4(a)(4);
ii. as to the order and/or time that various parts of the Work are to be
carried out (cl 15.1);
iii. to carry out a Variation (cl 37.2(a); 37.5);
iv. regarding the performance of to carry out any work forming part of
“Separable Portion 2” of the Works Contract;
v. regarding the performance of to carry out work on Mains 200;
vi. regarding the performance of to carry out work on the MG202 Panel
Entry;
vii. regarding the performance of to carry out work on the MG202 face
road;
viii. regarding the performance of to carry out work at any other location
other than any direction solely as to the method of performance of work by the
Contractor.”
Category 1(e)
“(e) Any notice of reasons given to the Company by the Contractor pursuant to clause
15.1 of the Works Contract.”
[27] This category is not pressed by the applicants.
Category 1(f)
“(f) Any notice given by the Contractor to the Company:
i. in respect of what the Contractor considered was a direction to carry out a
Variation (cl 37.3(a));
ii. providing an estimate in respect of a notice of a Proposed Variation (cl
37.4(b);)
iii. of a variation (cl 37.8).”
[28] I accept that the documents sought in these categories have apparent relevance to the
early termination issue and the work outside scope issue.
[29] Falcon Mining informed the Commission that it does not have any documents to
produce in response to category 1(f), save for a variation letter which amended the
commercial rates. Falcon Mining will produce this variation letter (with the commercial rates
redacted) in response to the order for production of documents.
Category 1(g)
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“(g) Any Program or revised Program for the performance of works under the
Contract
(Baumann Statement, [35], possibly cl 15.2 of the Works Contract)”
[30] Mr Baumann, Project Manager for the Mastermyne group of companies, of which
Falcon Mining is a part, says in his witness statement (at [35]) that the “program is a contract
document that plots the duration and status of the contract works at any given time. It is
generally issued monthly”. Having regard to this explanation, I accept that the Program or
Revised Program for the performance of works under the Works Contract has apparent
relevance to the early termination issue.
Category 1(h) and (i)
“(h) Any request by the Contractor for the issue of a Certificate of Practical
Completion (cl 28(a)).
(i) Any Certificate of Practical Completion issued by the Company to the Contractor
other than those already annexed to the Baumann Statement (cl 28).”
[31] Certificates of Practical Completion are attached to Mr Baumann’s statement. Such
certificates are plainly relevant to when the Project was completed. The documents sought are
of apparent relevance to the early termination issue.
Category 1(j)
[32] This category is not pressed by the applicants.
Category 1(k)
[33] This category is not pressed by the applicants.
Category 1(l),(m) and (n)
“(l) For the period 1 October 2019 to 30 June 2020, the agenda and minutes for the
planning and review meetings (cl.51.1).
(m) For the period 1 October 2019 to 30 June 2020, any written report provided by the
Contractor to the Company (cl 51.1(c)).
(n) For the period 1 October 2019 to 30 June 2020, any Monthly Operational Report
(Sch 1, cl 14.5).”
[34] These documents are referred to in the Works Contract and are likely, in my view, to
assist in determining when relevant work was completed and whether work performed by the
Employees was within the scope of works required by the Works Contract. I accept that the
documents sought in these categories have apparent relevance to the early termination issue
and the work outside scope issue. I will, however, amend category 1(m) as follows, as
discussed during the hearing of the application:
“For the period 1 October 2019 to 30 June 2020, any weekly or monthly written report
provided by the Contractor to the Company (cl 51.1(c)).”
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Category 1(o)
[35] This category is not pressed by the applicants.
Category 1(p)
“(p) Project overview dated 3 April 2019 (Gayton Statement, [67]).”
[36] In her witness statement Ms Gayton, General Manager of Human Resources for the
Mastermyne group, refers (at [64]-[67]) to various project overviews which she says were
prepared “to generate interest from candidates who might be interested in working on the
project. They can be updated during the early/kick off stage as details around the project are
clarified or become clear”. Ms Gayton attaches to her statement a version of the project
overview dated 8 May 2018 and makes reference to other versions of the project overview,
including the 3 April 2019 version sought in this category. Having regard to Ms Gayton’s
witness statement and the nature of the project overview documents described by her, I am
satisfied that the documents sought have apparent relevance to the issues in the proceedings,
including the early termination issue and the work outside scope issue.
Category 1(q)
“(q) For the period of 1 October 2019 to 30 June 2020, the Authorities to Mine
(Baumann Statement, [33] – [34]).”
[37] Mr Baumann refers to the Authority to Mine documents in his witness statement (at
[33]-[34]) as “effectively a safety tool … generally issued weekly and more often on this
Contract. The current ATM at any one time was included in the shift pack for every
mineworker and every deputy”.
[38] I accept that the Authority to Mine documents are likely to assist in determining the
nature, location and scope of the work being carried out by the Employees. I accept that they
have apparent relevance to the early termination issue and the work outside scope issue.
Category 1(r)
“(r) For the period of 1 October 2019 to 30 June 2020, copies of each “current
schedule” posted on the Mastermyne shift notice board (Baumann Statement, [39]).”
[39] Mr Baumann says in his statement (at [39]) that he “always posted a laminated copy of
the current schedule on the Mastermyne shift notice board for the crews to see where we were
up to”. I accept that the documents sought in this category have apparent relevance to the
early termination issue and the work outside scope issue.
[40] Falcon Mining informed the Commission that it does not have any documents to
produce in response to this category because it did not retain copies of what was posted on
notice boards and, further, the “current schedule” posted on notice boards from time to time
was not a separate document; rather, the “current schedule” was part of a “live” document
which was updated from time to time. On the basis of this explanation, the applicants
indicated to the Commission that they would not, at this stage, press for an order in terms of
category 1(r), but counsel for the applicants will cross examine Mr Baumann about this issue
[2021] FWC 2289
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at the hearing and, if appropriate, make a call for documents, or seek an order for the
production of documents, after Mr Baumann has been so cross examined. Accordingly, I will
not, at this stage, make an order in terms of category 1(r).
Category 1(s)
[41] This category is not pressed by the applicants on the basis that Falcon Mining has
informed the Commission that it does not have any documents to produce in response to the
category.
Oppression
[42] I accept Mr McKenzie’s unchallenged evidence as to the steps and time that would be
required to search for and produce the documents sought by the applicant. In respect of one
category of documents (category 1(b)) I have determined that requiring Falcon Mining to
produce the documents sought would be unreasonably burdensome and oppressive. In respect
of other categories (e.g. categories 1(c) and 1(d)), I have amended them to ensure the
documents are limited in scope, with the result that the burden of searching for the documents
is reduced. As to the balance of the categories, I am satisfied that they are sufficiently
particularised and focused on the issues in dispute in the proceedings. Although I accept that
it will take a substantial amount of time and effort for Falcon Mining to search for such
documents, I consider that the burden placed on Falcon Mining to comply with the order is
reasonable, and making such an order would be consistent with the proper administration of
justice in the sense that material that is relevant to an issue or issues that fall for determination
is available to parties to enable the parties to advance their respective cases.
Fishing
[43] I do not accept Falcon Mining’s contention that the request for documents amounts to
impermissible ‘fishing’. The documents sought are sufficiently particularised and do not go to
the question of whether the applicant’s have a supportable case; they are sought for the
purpose of seeking to establish that the case advanced by the applicants in their witness
statements and submissions is correct.
[44] As to the complaint by Falcon Mining that some of the documents sought may have
been provided to the Employees or placed on noticeboards during their employment, there is
no suggestion that the Employees already have in their possession all these documents and
they are merely seeking to impose a further burden on Falcon Mining by seeking an order for
their production.
Timing of the application
[45] On 2 March 2021 Falcon Mining filed the last of its witness statements, documents
and submissions in accordance with my directions. The applicants filed the last of their
witness statements in reply on 24 March 2021. The application for an order for the production
of documents was filed on 31 March 2021.
[46] Falcon Mining submits that the applicants did not seek the production of these
documents until after (a) the applicants had positively asserted that the Works Contract ended
[2021] FWC 2289
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in about November 2019 and (b) the applicants had twice been provided with an opportunity
to file and serve the material on which it wishes to rely in the proceedings.
[47] Falcon Mining contends that this timing shows that the applicants do not genuinely
require the documents sought to make out their case, but in truth are engaging in a fishing
exercise in an attempt to gain access to Falcon Mining’s confidential contracting documents.
Falcon Mining also contends that the proper administration of justice does not require that the
Commission be able to interrogate all of Falcon Mining’s contract documentation to assess
whether the Employees were properly characterised by Falcon Mining.
[48] I do not accept these submissions. First, a number of the categories of documents
sought in the proposed order relate to documents to which reference is made by witnesses for
Falcon Mining in their witness statements. Copies of those documents are not annexed to
those statements. Secondly, it was only after the applicants had filed their reply witness
statements that the full extent of some of the factual issues between the parties became
apparent, including as to the location, nature, and characterisation of work undertaken by the
Employees between November 2019 and late June 2020. Thirdly, the applicants made an
informal request to Falcon Mining on 25 March 2021 for the documents it now seeks by way
of order. Accordingly, Falcon Mining has been on notice of the request for such documents
for a reasonable period of time. Fourthly, the issues in these proceedings are not limited to the
proper characterisation of the Employees by Falcon Mining. They extend to issues such as
when the Project was completed and whether the Employees did work outside the scope of the
Works Contract. For the reasons given above, I am satisfied that the documents sought, as
modified above, have apparent relevance to issues in the proceedings and making an order for
their production is consistent with the proper administration of justice.
Production and inspection of documents in compliance with the order
[49] The order I will make for the production of documents will require production within
three weeks, which is the outside of the two to three week estimate of time provided by Mr
McKenzie. I accept that it will reasonably take Falcon Mining that period of time to search for
and produce the documents.
[50] At the time the documents are produced to the Commission in response to the order,
Falcon Mining may file and serve any submissions it wishes to make about the applicants or
their representatives having access to, or being given a copy of, the documents, including any
confidentiality issues. As to confidentiality, I note that there is already an obligation on any
party that receives or inspects documents produced in compliance with an order to produce
that such documents must only be used for the purpose of conducting the relevant matter in
the Commission. They cannot be used for any other purpose, except with the written
authorisation of the Commission. In the event that Falcon Mining presses an application that
some part of one or more documents it produces to the Commission be redacted before they
are provided to the applicants and their legal representatives, Falcon Mining should produce
the unredacted documents to the Commission and, at the same time as it produces the
documents, make submissions about any particular parts of the document(s) which it contends
ought be redacted and the basis for any such redaction.
[51] The hearing dates of 4 and 5 May 2021 will need to be vacated to allow Falcon
Mining a reasonable period of time to produce documents in answer to the order for
production. Although the vacation of hearing dates is regrettable, I am satisfied in this case
[2021] FWC 2289
14
that it is in the interests of justice to take this approach. The matter is complex. The
documents sought have relevance to the wide range of issues in dispute. The Employees are
no longer employed by Falcon Mining. There is no particular urgency to the resolution of this
matter.
[52] In the event that the applicants decide that they would rather retain the current
hearings dates (for evidence only) of 4 and 5 May 2021, the applicants may inform my
chambers, by 5pm on Monday, 26 April 2021, of that preference, together with their proposal
as to whether the order for production of documents should be set aside entirely or varied to a
significant extent to permit Falcon Mining to be able to search for and produce the limited
documents during the course of next week.
DEPUTY PRESIDENT
Appearances:
Ms L Doust, counsel, for the applicants
Mr J Murdoch, QC, for the respondent
Hearing details:
2021.
Newcastle (by telephone):
23 April.
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