[2021] FWC 3043
The attached document replaces the document previously issued with the above code on
26 May 2021.
The list of Appearances has been amended to:
Appearances:
Ms. Alana Heffernan, of the CEPU, for the Applicant;
Mr. Giacomo Giorgi, of Herbert Smith Freehills, for the Respondent;
Ms. Rachel Lee, of Herbert Smith Freehills, for the Respondent.
Steven Boughton
Associate to Deputy President Beaumont
Dated 27 May 2021.
1
Fair Work Act
2009
s.236 - Application for a majority support determination
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
South32 Ltd
(B2020/412)
DEPUTY PRESIDENT BEAUMONT PERTH, 26 MAY 2021
Majority support determination – use of redacted materials – use of unredacted materials –
interlocutory decision – s 590(2)(c)
1 Introduction
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia (CEPU) has made an application under s 236 of
the Fair Work Act 2009 (Cth) (Act) for a majority support determination. The CEPU
contends that a majority of employees who would be covered by a proposed agreement
(Agreement) want to bargain with their employer, the Respondent, South32 Ltd (South32).
Both the CEPU and South32 have filed applications under s 590(2)(c) of the Act to produce
certain documents. This decision addresses those applications.
[2] South32 seeks the production of documents in the following categories:
a) copies of the completed petitions that are subject of its application under s
590(2)(c) (Category One);
b) list of its employees who have participated in the petition process (Category
Two); and
c) any supporting or explanatory material provided to employees in relation to the
petitions (Category Three).
[3] It bases its application on two grounds. The first, is that the material to hand is
insufficient for it to admit that a majority of its employees who will be covered by the
Agreement want to bargain. The second, is to understand the assertion that those same
employees represent a fairly chosen cohort.
[4] Regarding the first ground, the parties were required to file a statement of agreed facts
for the substantive matter. South32 formed the view that the parties should address whether
there was majority support for bargaining [in content of the statement of agreed facts].
[2021] FWC 3043
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 3043
2
However, it considered that it did not have information on this point and hence the application
for the Category One and Category Two documents.
[5] Insofar as the petitions were concerned, South32 expressed it had reason to believe the
petitions existed as the CEPU’s application under s 236 referred to the same, noting the
collection of 62 petitions from 62 employees between 23 June 2020 and 24 July 2020. The
CEPU declined to provide the unredacted petitions to South32.
[6] The second ground concerned the issue of fairly chosen (s 237(2)(c)). South32
pressed that it did not have sufficient information to enable it to understand the allegation that
the employees represented a fairly chosen cohort.
[7] The CEPU similarly made an application under s 590(2)(c). However, the CEPU
sought orders for the production of a list of South32’s relevant employees, with details of first
name, surname and occupation. In short, the CEPU stated that the information would assist
the Commission in determining whether a majority of employees wanted to bargain.
[8] With a view to resolving matters concerning the production of documents, the CEPU
wrote to South32, care of its legal representative, inviting the legal representative to view
unredacted petitions filed by the CEPU on the following basis:
a) the contents of the petitions were kept confidential;
b) South32 was to provide a list of employees to the Commission;
c) the legal representative of South32 would view the petitions at the same time the
Commission views the petitions and a list of employees provided by South32; and
d) South32 withdraw the Form F52 filed on 29 September 2020.
[9] It is evident that South32 did not avail itself of the offer, with the result that the matter
of the two applications under s 590(2)(c) now requires determination. It should be noted that
attempts to resolve the production issues through a conciliatory process were unsuccessful.
This decision addresses the ‘production’ applications.
2 Context
[10] The following outlines the context to the two production applications.
[11] South32 runs a bauxite operation comprised of a vertically integrated supply chain
comprised of work at a mine, refinery and port. It mines the bauxite near the town of
Boddington, 130 km south-east of Perth. Once mined, the bauxite is transported
approximately 100km by overland conveyor to an alumina refinery near Collie, and is turned
into alumina powder, before being transported by rail to Bunbury port. The alumina powder
is then shipped to smelters around the world.
[12] The proposed Agreement would apply to 76 employees across the Boddington Bauxite
Mine and the Worsley Alumina Refinery who were qualified to perform electrical work, as of
12 August 2020.1 Those employees are employed in roles that include: (a) Technician
Electrical Instrument; (b) Technician Electrical; (c) Technician High Voltage; and (d)
Apprentice Electricians. While the CEPU asserts that a majority of these employees want to
1 Statement of Agreed Facts [8].
[2021] FWC 3043
3
bargain, South32 disputes that this is the case and opposes the application. The employment
of the employees in question is covered by the Aluminium Industry Award 2010.
[13] South32 also employs workers in approximately 222 different roles across the sites
with a total of 1649 employees.
[14] Concerning its application under s 236, the CEPU did not file the petitions with the
originating application (Form F30). However, on Tuesday, 11 August 2021, unredacted
petitions were filed. On 16 October 2020, the CEPU filed a list of the names of the
employees who have signed the petitions. In support of its application, the CEPU filed two
witness statements of Mr Adam Woodage, an Organiser with the CEPU.2
[15] South32 filed a redacted employee list. An unredacted list of employees has not been
provided.
3 South32’s submissions
[16] South32 primarily contends that it has insufficient information to admit there is a
majority of employees who will be covered by the CEPU’s proposed Agreement, and to
understand the allegation that the employees represent a fairly chosen cohort.
[17] It states that the documents subject to the application under s 590(2)(c) are needed to
enable it to properly understand the application under s 236 of the Act, arguing that the
information in the documents would presumably show:
a) the terms of the petitions (including any information contained in them);
b) when the petitions were circulated and signed;
c) whether they represent the Employee’s current views;
d) whether all employees who signed the petitions were entitled to be represented by the
CEPU;
e) whether all employees who signed the petitions will be covered by the proposed
agreement; and
f) the circumstances in which the petitions were circulated and signed (including the
manner in which the petitions were prepared and presented to the employees, and
whether the effect of the petitions was appropriately and accurately explained to the
employees).
[18] According to South32, the abovementioned information was significant given there
had been no enterprise bargaining at the sites in over 25 years. On that basis, South32 argued
that it could not be assumed that the employees understood the significance and purpose of
any petition that they signed.
3.1 Category One
[19] Insofar as the petitions were relied upon to support orders which would impact its
rights, South32 pressed it had a right to see them. It continued that it was an indispensable
2 Witness Statement of Adam Woodage dated 16 October 2020 (First Woodage Statement) and Witness Statement of Adam
Woodage dated 11 November 2020 (Second Woodage Statement).
[2021] FWC 3043
4
aspect of its right to be heard, and it could not be afforded natural justice if the evidence used
against it was withheld.
[20] It drew upon the example of National Union of Workers v Lovisa,3 (Lovisa No.2),
which it purported was a decision that dealt with a similar application to the one currently on
foot. In Lovisa No.2, the NUW put forward evidence in the form of ‘petitions and other
evidence [to] demonstrate that a clear majority’4 wished to bargain. The respondent company
sought access to the unredacted petitions on the basis that ‘it would be a denial of procedural
fairness for the Commission to rely on unredacted material that the company had not seen’.5
The Deputy President responded by acknowledging that the company had a ‘legitimate
interest’ in accessing the petitions in order to understand ‘why the Commission has concluded
that there is in fact majority support for bargaining’.6 Furthermore, the Deputy President
remarked:
[O]rdinarily, all material produced to the Commission by a party in a proceeding should be
provided in full, unredacted and unedited, to the other side, an only such material would be
relied on by the Commission in reaching its decision. However, occasionally the interests of
justice may require the Commission to take a different course.7
[21] South32 noted that in Lovisa No.2, the Deputy President ultimately found that the
company’s interests were not adversely affected by the Commission’s use of unredacted
petitions, and that ‘any adverse effect [was in any case] outweighed by the interest of
employee-petitioners in having their identities protected’.8 However, South32 pointed out
that this conclusion was reached within a context where:
a) the redacted documents blocked out the names and signatures, but showed the dates of those
signatures;9
b) the NUW had offered to reveal the unredacted copies to the company’s lawyers in order to
verify the documents alongside the Commission (which the company had declined);10
c) the company did not lead any evidence [or advance any argument?] [sic] that raised concerns
about the conduct of the union or its approach to gathering support for bargaining;11 and
d) most significantly, the NUW’s opposition to the unredacted petitions being produced was
based on detailed evidence adduced by the NUW, and accepted by the Commission after
consideration, of legitimate concerns held by employees that they would face repercussions if
the company found out their identities.12
[22] It was South32’s submission that two points emerged from Lovisa No.2. The first, that
the rules of procedural fairness apply in this context. The second, the use of the petitions
without unredacted copies being provided to South32 must be reserved for the special case
where the party relying upon the petitions is prepared to disclose them to the legal
3 [2019] FWC 2885 (‘Lovisa No.2’).
4 Ibid [6].
5 Ibid [7].
6 Ibid [56].
7 Ibid [55].
8 Ibid [58].
9 Ibid [24].
10 Ibid [57].
11 Ibid [58].
12 Ibid [38]-[48].
[2021] FWC 3043
5
representatives of the other party, and where there is evidence of a real and genuine concern
that providing unredacted copies may have adverse consequences for the relevant employees.
[23] Referring to the current proceedings, South32 made the following observations:
a) the redacted petitions do not show the date(s) on which they were signed;
b) the CEPU had not offered to disclose the unredacted petitions to South32’s legal
representatives;
c) the CEPU had not adduced any evidence that the employees held concerns that they
will face repercussions from South32 if their identities are disclosed, let alone any
evidence that could satisfy the Commission that such concerns are legitimate and
based on reasonable grounds;
d) South32’s evidence raises concerns about the CEPU’s conduct during the petition
process and its approach to gathering support for bargaining;
e) the CEPU’s evidence also gives a basis for concerns in relation to the custody and
control of the petitions, particularly on the basis that Mr Woodage does not assert that
he saw every signature applied to the petitions and the petitions were left in an area
accessible to other employees not subject to the CEPU’s application;
f) while South32 can only speculate on the forensic use that might be made of the
unredacted petitions (given it has not seen them) it has identified irregularities on the
face of the redacted petitions, including that some entries do no appear to be signed,
and that the number of entries on the petitions are inconsistent with the CEPU’s
submissions as to the number of signatures obtained. Granting access to the
unredacted petitions may allow South32 to identify further irregularities or bases on
which the Commission should not accept the petitions as evidence of majority support;
and
g) there would be no burden on the CEPU in producing the unredacted petitions, given
that it has already filed the same with the Commission.
3.2 Category Two
[24] South32 submitted that it was trite to observe that the Commission could not be
satisfied that a majority of employees wished to bargain unless it knew both the number of
employees who were in favour of bargaining and the total number of employees. According
to South32, this was of particular significance in the circumstances where the CEPU had
failed to consistently identify the particular group of employees in relation to who the
determination had been sought.
[25] South32 continued that the documents in this category were likely to contain
information relevant to the total numbers of employees who the CEPU had requested to sign
the petitions. Such documents would allow South32 to confirm the group of employees who
the CEPU considered to be in scope for the proposed Agreement, and therefore confirm that a
majority of those employees did sign the petitions.
[26] The argument advanced by South32 was, in part, premised on the basis that the group
of employees had not been fairly chosen because the employees were situated at two entirely
separate geographical locations. Because of this, South 32 argued that it would be relevant
for the Commission to understand whether employees at both sites were asked to sign the
petitions and, if so, whether employees at both sites did, in fact, sign the petitions.
[2021] FWC 3043
6
3.3 Category Three
[27] South32’s position was that there was a significant issue in dispute between the parties
related to the employees’ understanding of the petition, and the context in which the petition
was presented. Insofar as such matters were relevant, South32 submitted that a lack of full
understanding of the purpose and effect of the petitions, or false or misleading statements
made during the petition process, may affect the integrity of the petitions and them being
evidence of majority support.
[28] What had been called into question by South32 was whether the employees had fully
and freely given informed consent to the petitions. South32 submitted that it had adduced
evidence that called that very point into question, by reason of the following matters:
a) there being evidence that the employees were confused, or were misinformed, about
the effect of signing the petitions (and the potential consequence of that: being any
enterprise agreement being entered into), including that they could ‘opt out’ of an
enterprise agreement, or that any enterprise agreement would ‘lock in’ their current
benefits;
b) the CEPU had not adduced any evidence about what the employees were told about
the effect of the petitions, or the bargaining process more generally, at the time they
were asked to sign the petitions. This, said South32, was particularly significant in
circumstances where there had been no in-term collective agreement covering the
group and no bargaining at the sites for a significant period, and so the employees
could not have any presumed knowledge about these matters;
c) some employees had expressed to South32 that they felt pressure to sign the petitions,
and it appeared that Mr Woodage watched the employees signing the petitions, which
may have led them to feeling coerced;
d) there was evidence that the CEPU had provided false, misleading and inflammatory
information to the employees regarding South32’s conduct, including by suggesting
that South32 had reduced wages and conditions in order to pay for its legal costs
defending the CEPU’s application.
[29] It was South32’s view that the documents in Category Three would likely be highly
probative to the aforementioned matters as they would provide contemporaneous evidence of
what the employees were, and were not, told (in writing, at least) at the relevant time about
the petitions and the bargaining process. Therefore, the documents were relevant to the
matters in dispute in the proceedings.
[30] The documents in Category Three had, said South32, been described with sufficient
particularity that it would not be oppressive or unduly burdensome on the CEPU to produce
the documents, and there could be no suggestion, given the targeted nature of the category,
that it was merely a fishing expedition by South32.
4 The CEPU’s submissions
[31] Initially, the CEPU objected to South32’s application under s 590(2)(c) on the basis
that it had already provided unredacted petitions on a confidential basis to the Commission.
The CEPU submitted that it was the usual course for the Commission to obtain a confidential
list of employees from a respondent and make a preliminary assessment as to whether there
[2021] FWC 3043
7
was a majority of employees who had signed the petitions in support of bargaining. It argued
that there was no rational basis for the identities of the employees to be disclosed to South32.
Additionally, the CEPU observed that South32 had made the application before evidence and
submissions had been filed and was therefore premature.
[32] Expanding upon those initial points, the CEPU voiced its objections specifically to the
documents described in the three categories, starting with Category One.
4.1 Category One
[33] The CEPU observed that in seeking the documents under each of the categories,
South32 was seeking the identity of its employees who signed a petition in support of
bargaining whilst not providing any justification for needing to know the identity of the
employees. Further, South32 had failed to articulate what it intended to do with the
information or why the information was required to respond to the application under s 236.
[34] Addressing South32’s submission concerning Lovisa No.2 and what was to be derived
from that decision, the CEPU submitted that the case did not support a finding that the
identities of signatories to a petition for a majority support determination ought to be
disclosed to the employer. The following passage was proffered to demonstrate the point:
… In the absence of some evidence or contention raising a prima facie concern about the
reliability of petitions as evidence of employee support, I would incline to the view that the
Commission can receive and rely on an un-redacted copy of a petition obtained for the
purpose of s 237 and for the employer to receive a redacted copy. In my view it would be
natural for employee–petitioners to be apprehensive about their identities being revealed to the
employer, given they are taking a position that is aligned with a union in an effort to have their
employer agree to something it evidently does not want to do, namely bargain. Often the
employer accepts this and does not object to this approach, and in such cases there is no
difficulty in the Commission proceeding to rely on the material. But in this case the employer
objects and the Commission must therefore decide on the appropriate approach.13
[35] It was the CEPU’s view that South32 had not put on any evidence or raised any
legitimate contention which would raise a prima facie concern about the reliability of
petitions. While it conceded that South32 had filed witness evidence, it observed that such
evidence was from management employees who are not proposed to be covered by the
proposed Agreement. Further, and insofar as the evidence of the management employees
purported to canvass the views of relevant employees, the CEPU submitted that their evidence
was vague, hearsay and ought not to be given weight.
[36] The contention that the petitions were absent dates was not something that the
Commission appeared to have had any regard to in reaching its finding in Lovisa No.2, said
the CEPU. The CEPU submitted that South32 had not, in any way, articulated its basis for
seeking the date, other than for using the information to identify the employees. Accordingly,
said the CEPU, the factor was irrelevant and ought to be disregarded.
[37] While South32 had raised that in Lovisa No.2 the NUW offered to reveal the
unredacted copies of petitions to the employer’s lawyers to verify the documents alongside
the Commission, the CEPU did not concede that this was a relevant factor in this case, noting
13 Lovisa No.2 [36].
[2021] FWC 3043
8
that South32 had not made a similar request, despite referring to such an arrangement as a
possibility in its submissions. Nevertheless, the CEPU had opted to offer South32’s lawyers
the opportunity to verify the petitioners’ names on a confidential basis, in the same manner as
the Commission intended to do so. Accordingly, said the CEPU, this ought to cure any
concerns of South32.
[38] In response to South32’s submission that there was an apparent lack of evidence to
support the CEPU’s contention that employees were apprehensive about the disclosure of
their identities to their employer, in short, the CEPU submitted:
a) South32 was seeking to depart from the usual practice of identities of petition
signatories remaining confidential absent reference to a decision of the Commission
made in similar circumstances and without identifying why the disclosure was
necessary;
b) South 32 had made it clear that it was opposed to bargaining, it would therefore
naturally follow that the employees responsible for requiring it to bargain would be
apprehensive about South32 knowing their identities;
c) the employees signed the petitions on the condition of confidentiality and that the
CEPU undertook to ensure their identities would not be disclosed to South32.14
[39] South32 had expressed, said the CEPU, that the evidence it had adduced gave the basis
for concerns about the custody and control of the petitions.15 The CEPU submitted that
South32 had failed to point to any particular evidence that would raise a concern, except to
say that Mr Woodage did not appear to have personally witnessed every signature. The
CEPU continued noting that witnessing every signature was not a requirement in a majority
support determination, and in Lovisa No.2, the Commission had accepted some text messages
and email evidence of the employees’ desire for bargaining.16
4.2 Category Two
[40] In respect of the documents in Category Two, the CEPU relied upon its submissions
provided in response to the Category One documents. However, it noted that the Commission
is able to verify the majority by viewing the unredacted petitions and compare the unredacted
petitions to a list of employees provided by South32 – such is the ordinary course in these
types of proceedings.
[41] Regarding South32’s argument premised on the issue of ‘fairly chosen’, the CEPU
submitted that whether the group of employees was fairly chosen was a substantive matter
that could be determined on the evidence and submissions filed in the substantive
proceedings. Whilst South32 contended that the CEPU had failed to identify the group of
employees to be covered by the proposed Agreement, the submission, said the CEPU, was at
odds with the Statement of Agreed Facts dated 2 October 2020 (Statement of Agreed Facts).
14 Second Statement of Woodage [8].
15 South32’s submissions [13(e)].
16 Lovisa No.2 [25].
[2021] FWC 3043
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4.3 Category Three
[42] The CEPU denied that the employees’ understanding of the petitions was a significant
issue in dispute in the proceedings, submitting that it had provided to the employees a petition
that clearly articulated its purpose in the heading of the document.
[43] In respect of South32’s evidence about purported ‘confusion’ on the part of
employees, the CEPU submitted that the assertions were vague, unreliable, hearsay and
unable to be relied upon.
5 Relevant principles
[44] As was acknowledged by South32, the principles applying to the issue of orders for
production by the Commission under s 590(2)(c) are well established and are able to be
summarised as follows:
a) the power conferred by s 590(2)(c) is a broad discretionary one to be exercised for the
purpose of the Commission informing itself as to a matter before it;17
b) the power should be exercised in accordance with the principles applied by the courts
in civil proceedings when issuing subpoenas;18
c) the documents sought must have apparent relevance to the issues in dispute in the
proceedings;19
d) 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;20
e) the documents required to be produced must be described with sufficient particularity,
and the burden of producing them must not be oppressive, in the sense ‘of placing an
unreasonable burden on the person required to comply’,21 and the request for
production must not be a fishing expedition;
f) the Commission may also take into account 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;22 and
g) generally speaking, the Commission will exercise its discretion in favour of an
applicant unless it appears that it would be vexatious or frivolous or otherwise an
abuse of process.23
[45] In National Union of Workers v Lovisa Pty Limited24 (Lovisa No.1), the Deputy
President addressed the employer’s contention that the Commission should not rely on the
17 Re Penelope Vickers [2017] FWCFB 3131 [8] (‘Vickers’); Esso Australia Pty Ltd v Australian Workers’ Union,
Australian Manufacturing Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia [2017] FWCFB 2200 [6] (‘Esso’).
18 Ibid; Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756 [10].
19 Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 [19].
20 Vickers [8]; Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 [19].
21 Esso [6], [18].
22 Ibid [6].
23 R v Marks; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 147 CLR
471, 483.
[2021] FWC 3043
10
employee petitions as evidence of majority support without affording it an opportunity to
examine the unredacted copies of these documents. While not determining the issue, the
Deputy President made certain observations about the appropriateness of an order for the
production of un-redacted materials that revealed the petitioner’s names.
[46] Firstly, the Deputy President acknowledge that generally, petitions can be an
acceptable method for the Commission to determine the question of majority for the purpose
of s 237(3). Secondly, absent evidence raising a prima facie concern about the reliability of
petitions as evidence of employee support, it is sufficient for the Commission to receive an
unredacted copy of the petition documents and for the employer to receive a redacted copy.
[47] Thirdly, where employees have expressed some concern to their union about the
disclosure to the employer of their signatures on a petition, apprehensiveness of this kind is
taken to be understandable. Employees who sign a petition to bargain are taking a position
that is in opposition to that of their employer, which obviously in such matters does not wish
to bargain.
[48] Fourthly, if the evidence led by the employer raises concerns about the integrity of the
petition document or process, or the genuineness of the support expressed by one or more of
the employees, or if the petition and other materials are factually complex, it may be
appropriate to order production of the unredacted materials.25
[49] In Lovisa No.126, the Deputy President concluded:
[69] In the present matter the union has filed numerous petition documents, to some
extent overlapping and containing repeated names. In quite a number of instances the
names of the petitioners are similar to, but not the same as, those appearing on the
employer’s November list. I intend no criticism of the union. It has endeavoured to
present its material in an orderly way, to identify unintended duplications of petitioner
names, and to explain alternative spellings, nick names or abbreviations that certain
employees might have used. However, the petition and other evidence in relation to
the expression of employee support was complex and required careful examination.
Had I proposed to rely on the material in reaching satisfaction that a majority wished
to bargain, this may have been a case where production of the un-redacted materials to
the employer would have been required in the interests of natural justice, so that the
company could make its own assessment of this evidence and present argument on the
material if it wished to do so.
[50] The Deputy President thereafter had cause to consider another application under s 236
involving the same parties as in Lovisa No.1.27 One of the issues in Lovisa No.2 was whether
the Commission’s reliance on unredacted material (namely petitions and texts) in
circumstances where the respondent employer had only seen redacted copies was an
appropriate method for the Commission to determine whether there was a majority support for
bargaining. Related to that issue was the matter of whether the Commission’s reliance on
24 [2019] FWC 2571 (‘Lovisa No.1’).
25 Ibid [68].
26 Ibid.
27 Ibid.
[2021] FWC 3043
11
unredacted material that the respondent employer had not seen would deny that same
respondent employer procedural fairness.28
[51] As he did in Lovisa No.1, the Deputy President expressed that absent evidence or
contention raising a prima facie concern about the reliability of petitions as evidence of
employee support, he would be inclined to the view that the Commission can receive and rely
on an unredacted copy of a petition obtained for the purpose of s 237 and for the employer to
receive the redacted copy.29
[52] However, in Lovisa No.2, the Deputy President noted that the union’s contention that
the Commission should not provide unredacted materials to the respondent employer but
should nevertheless rely on them for determining the application, went beyond a presumptive
apprehensiveness on the part of the employees about their support for bargaining being
revealed to their employer. The Deputy President was persuaded by the evidential case of the
union that some members of the union had informed the union of their fears or concerns about
repercussions in the event of their support for the union becoming known to the employer.
The Deputy President observed that the evidence led by the union justified maintaining the
anonymity of the employees.
[53] In response to the second issue concerning procedural fairness, the Deputy President
traversed the obligations of Commission members,30 noting that the requirements of
procedural fairness are not prescribed in a fixed body of rules and what is fair in one case may
be quite different from what is required in another.31 The observation was also made that the
content of natural justice depends on the relevant circumstances, including the statutory
context. The Deputy President observed that requirements of ss 577 and 578, namely that the
Commission is to act in a manner that is fair and just, quick and informal, open and
transparent, taking into account equity, good conscience and the substantial merits of the case,
may be seen as incidents of a general duty on the Commission to ensure a fair hearing.32
[54] At paragraph [20] of this decision, there is an excerpt from paragraph [55] of the
Lovisa No.2 decision. In short, it sets out that ordinarily, all material produced to the
Commission by a party in a proceeding should be provided in full, unredacted and unedited to
the other side. Further, it is only that material which the Commission would rely on in
reaching its decision.33 However, as stated by the Deputy President, occasionally the interests
of justice may require the Commission to take a different course, and in making that
determination, it is important to consider how and to what extent the other party may be
adversely affected and what measure can be taken to minimise that adverse effect.34
28 Lovisa No.2 [32].
29 Ibid [36].
30 Coal and Allied Services Pty Ltd v Lawler (2011) 192 FCR 78, 83; see also Kioa v Minister for Immigration & Ethnic
Affairs (1985) 62 ALR 321, 347 (Mason J); R v Commonwealth Conciliation and Arbitration Commission; Ex parte
Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167
CLR 513; 29 IR 148.
31 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), (1963) 113 CLR 475 [504] (Kitto J).
32 Viavattene v Health Care Australia [2013] FWCFB 2532 [30].
33 Lovisa No.2 [55].
34 Ibid.
[2021] FWC 3043
12
6 Consideration
[55] The submissions filed were relatively extensive in light of the applications made.
Those submissions have been considered.35 In my view, the most pressing issues presented
concerned whether to require the production of the unredacted petitions, the list of employees
participating in the petition signing (the CEPU list) and South32’s list of employees working
in the ‘group’ (the Group) (as described in the Statement of Agreed Facts at paragraph [4]).
6.1 Categories one and two South32’s list of employees
[56] South32 pressed that if the unredacted petitions were not produced, it would be absent
the opportunity to test the veracity and authenticity of the signatures alleged to be on the
petitions. It continued that the redacted petitions simply showed a series of rows with black
boxes/redactions in the location where it is alleged employees’ names, signatures and date of
signing are recorded. Therefore, it was unable to understand how many employees signed the
petitions and whether: (a) the individuals who signed the petitions are (or were at the time of
signing) employees of South32; (b) the individuals who signed the petitions are (or were at
the time of signing) within the ‘group’; and (c) the signatures that appear on the petitions
match the signatures of the relevant employees within the Group.
[57] It submitted that there had been a number of cases which had held that an employee
petition may not be adequate evidence of majority support in some circumstances.36 To
support this proposition, it quoted the Senior Deputy President in Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union (AMWU) v Kinkaid Pty Ltd T/A Cadillac
Printing:37
[i]t is conceivable that there may be circumstances where a petition could not be relied upon
as an appropriate device to determine majority support for bargaining. If, for instance, there
was some evidence that the petition had been falsely derived or that the signatures had been
achieved by duress, an alternative means of establishing employee views would need to be
considered.
[58] South 32 submitted that with regard to the redacted petitions, it observed that at least
one alleged entry on the petitions did not appear to be signed or dated and that while the
CEPU had submitted it collected a total of 62 signatures on the petitions, the petitions
attached to Mr Woodage’s statement appeared to show 65 entries.
[59] South32’s application for the production of documents is to be understood in the
context of responding to the CEPU’s application under s 236. While South32 identified
irregularities on the face of the redacted petitions, including that some entries did not appear
to be signed, having viewed the redacted petitions, I cannot fathom how South32 arrived at
35 Respondent’s Submissions regarding Production of the Petitions and Related Documents dated 9 November 2020;
Respondent’s Submissions in Reply dated 12 November 2020; Respondent’s Outline of Submissions dated 30 October
2020; Applicant’s email objecting to the Respondent’s Notice to Produce; Applicant’s Submissions regarding its
Objection to the Respondent’s Notice to Produce dated 11 November 2020.
36
The Australian Workers’ Union v The Austral Brick Co Pty Ltd t/a Austral Bricks [2010] FWA 5819 [23]-[36]; Media, Entertainment and
Arts Alliance [2013] FWC 3231 [38]-[39]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v
Cochlear Limited [2009] FWA 67; Association of Profession Engineers, Scientists and Managers, Australia (APESMA) v Endeavour
Coal Pty Limited [2010] FWA 7497 [9].
37 [2009] FWA 1123 [13].
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13
this conclusion. Notwithstanding, South32 did, correctly in my view, identify that the number
of entries on the petitions are inconsistent with the CEPU’s submissions as to the number of
signatures obtained. Granting access to the unredacted petitions may allow South32 to
identify and address such irregularity.
[60] South32 submitted that production of the unredacted petitions would reveal their terms
or content (presumedly the preamble). However, the terms of the petitions are visible on the
top portion of the redacted petitions. It is evident that the bottom aspect of the petition sets
out a table with three headings, ‘name’, ‘signature’ and ‘date’. On any objective level, the
unredacted petitions do not assist South32 in this respect.
[61] As to the date when petitions were signed, this evidence is pertinent to the matters to
be determined, and as such, the forensic value of such information is readily apparent. In
contest in the substantive proceedings is the question of whether I should be satisfied that a
majority of employees employed by the employer ‘at a time’ determined by the Commission
and who will be covered by the proposed Agreement, want to bargain.38
[62] Mr Woodage said that it would be very easy for South32 to use the dates in the
unredacted petitions to identify who signed them by simply lining up the roster with his entry
(presumedly referring to Mr Woodage’s right of entry) and the number of signatures for that
date. While this may be the case, I consider that the probative value of the ‘dates’ outweighs
any prejudice to the CEPU, albeit I am alive to the concerns about disclosing the identities of
the employees.
[63] In addition, South32 relies upon grounds that the production of the unredacted
petitions is required for it to ascertain: (a) whether all employees who signed the petitions
were entitled to be represented by the CEPU; and (b) whether the proposed Agreement will
cover all employees who signed the petitions. Again, such matters are relevant to the
determination of the substantive application and constitute a legitimate basis for producing the
unredacted petitions and the CEPU’s list of employees.
[64] While South32 submitted that there was insufficient evidence regarding the level of
custody and control over the preparation of the petitions, I do not consider that the production
of the unredacted petitions and the CEPU’s list of employees would assist South32 to advance
its case in this respect.
[65] Clearly relevant to the consideration of exercising discretion under s 590(2)(c) is
whether there is a legitimate forensic purpose for the order(s) to produce the documents. In
the decision of Construction, Forestry, Mining and Energy Union v O'Keeffe Heneghan Pty
Ltd & Rocky Neill Construction Pty Ltd & Auslife Pty Ltd T/A KNF Construction
(O’Keeffe),39 the Deputy President stated:
…I was not referred to a decision of the Commission where the provision of signatures and
names has been dealt with on an interlocutory basis as a result of a notice to produce.
[37] Adequacy of the petition has usually been determined as a part of the overall case. So that
the Commission might order a ballot to determine a majority support because it is not satisfied
38 See Lovisa No.1 [31] [32].
39 [2017] FWC 780 (‘O’Keeffe’).
[2021] FWC 3043
14
that the petition reveals majority support. This is after all the evidence has been heard,
especially the cross-examination of the union officials.
[38] There are some cases where the employer has scrutinised the signatures and names on the
petition, e.g. Bissett C in United Voice v Berkeley Challenge Environmental Services Pty
Ltd [2011] FWA 3422; Lee C in Transport Workers Union of Australia v GTS Freight
Management Pty Ltd [2012] FWA 6677; Williams C in Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Monadelphous Engineering Associates Pty Ltd [2010] FWA 6357. It is not clear whether this
was by consent or not. In Transport Workers’ Union of Australia v Darling Downs
Express [2015] FWC 2658, Spencer C allowed the Union to inspect the list of employees
provided by the employer after a protracted process. This was an unusual case where the union
ultimately withdrew its application.
[39] In The Australian Workers’ Union v Kantfield Pty Ltd T/A Martogg & Company [2016]
FWC 6473 Ryan C allowed the respective counsel to check the lists. There was extensive
evidence about the petition and a subsequent ballot. In Australian Nursing and Midwifery
Federation v Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay [2016] FWC
1981 McKenna C relied on a comparison of the names on the two lists which were provided
under seal. The employer opposed the use of the petition and provided extensive submissions
and evidence which sought to attack the validity of the petition. The Commissioner
determined the matter based on this evidence. In National Union of Workers v Cotton On
Group Services Pty Ltd [2014] FWC 6601, Roe C undertook an extensive analysis of the
various lists which were then the subject of comment by the parties. He based his decision on
a detailed analysis of all the circumstances. In National Union of Workers’ [2015] FWC
3473 (Lee C) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia Water
Operations Pty Ltd [2015] FWC 2561 (Booth C) the petitions appear to have been provided in
a non-redacted form. Both members determined that the petitions were not an appropriate
method of judging majority support because of evidence about the collection and custody of
the signatures.
[40] These cases show that the Commission makes a decision under s.237 taking account of
the submissions and evidence. I can find nothing which requires the names and signatures on a
petition to be provided to the employer on an interlocutory basis. In the circumstances of this
case, I do not think it appropriate or necessary for a final determination of the matter for KNF
Construction to view the names and signatures.
[41] The risk to employees’ right to freedom of association in a hotly contested bargaining
dispute is real. It would require, in my view, the Commission to be convinced by a specific
submission as to the use they would be put for the Commission to provide them to the
employer. No such submission has been made by KNF Construction.
[42] I am not satisfied that there would be procedural unfairness to KNF Construction in the
Commission examining the signatures and names on the petition. Nor would there be
procedural unfairness to KNF Construction for it to be required to provide a list of employees,
covered by the application, to be examined by the Commission on the same basis.
[66] South32 contended that while unredacted petitions had been provided to the
Commission, a mere mechanical cross-referencing exercise (such as that referred to in
O’Keeffe) would be insufficient to establish majority support in these circumstances.
[67] In making its determination regarding orders under s 590(2)(c), the Commission may
take into account 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
http://www.fwc.gov.au/decisionssigned/html/2015fwc2561.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwc3473.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwc3473.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwc6601.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc1981.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc1981.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc6473.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc6473.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwc2658.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwa6357.htm
http://www.fwc.gov.au/decisionssigned/html/2012fwa6677.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwa3422.htm
[2021] FWC 3043
15
advance their respective cases.40 As was reiterated by the Deputy President in Lovisa No.1
and Lovisa No.2, the starting point would appear to be that ordinarily, all material produced to
the Commission by a party in a proceeding should be provided in full, unredacted and
unedited, to the other side, and only such material would be relied on by the Commission in
reaching its decision. However, as was also observed in Lovisa No.2, occasionally, the
interests of justice may require the Commission to take a different course.41
[68] It may be recalled that South32 submitted that there were two points emerging from
Lovisa No.2. The first, that the rules of procedural fairness apply in this context. This point is
uncontroversial and is accepted. The second, the use of the petitions without unredacted
copies being provided to South32 must be reserved for the special case where the party
relying upon the petitions is prepared to disclose them to the legal representatives of the other
party, and where there is evidence of a real and genuine concern that providing unredacted
copies may have adverse consequences for the relevant employees (underlining my
emphasis). In my view, the second point is an oversimplification of what was expressed by
the Deputy President in Lovisa No.2 and borders closely to proposing a ‘decision rule’.
[69] The concept of a ‘decision rule’ was explained in Esso Australia Pty Ltd v AMWU,
CEPU and AWU,42 where the Full Bench stated:
[58] In our view the adoption of a decision rule or principle of the type proposed in Australia
Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what
the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in
Gardner v Jay:
“When a tribunal is invested by Act of Parliament or by Rules with a discretion,
without any indication in the Act or Rules of the grounds upon which the discretion is
to be exercised, it is a mistake to lay down any rules with a view to indicating the
particular grooves in which the discretion should run, for if the Act or the Rules do
not fetter the discretion of the Judge why should the court so do.”43 (Footnotes
omitted)
[70] In Lovisa No.2, the Deputy President expressed his view that in the absence of some
evidence or contention raising a prima facie concern about the reliability of petitions as
evidence of employee support, he would incline to the view that the Commission can receive
and rely on an un-redacted copy of a petition obtained for the purpose of s 237 and for the
employer to receive a redacted copy. 44 Further, he considered it natural for petitioners to be
apprehensive about disclosing their identities given the position they had adopted. However,
where an employer objects to this approach, the Commission must therefore decide the
appropriate approach. While the Deputy President thereafter detailed his observations of an
appropriate approach, it was not the case that slavish adherence to that approach was
suggested.
[71] At paragraph [8] of the Second Woodage Statement, Mr Woodage details that he
informed employees signing the petitions that he would keep the petitions confidential from
40 Esso [6].
41 Lovisa No.2 [55].
42 [2015] FWCFB 210.
43 Ibid [58].
44 Lovisa No.2 [36].
[2021] FWC 3043
16
their employer and was informed by the employees that they would not sign the petition if it
was to be provided to South32. Further, he expresses at paragraph [5] of the Second
Woodage Statement that the South32 sites have not ever been unionised. Employees
expressed concern to him about their employer knowing they are union members or pushing
for an enterprise agreement. The concern being overlooked for future promotions or getting
pushed out if they are seen as trouble-makers.
[72] In this matter, the CEPU has pressed that the identity of the petitioners should not be
revealed to the respondent employer. Its reasons are articulated in its submissions and the
evidence of Mr Woodage. I turn first to the evidence of Mr Woodage.
[73] Mr Woodage’s evidence in the Second Woodage Statement can be seen as identifying
a level of apprehension amongst those employees who purportedly informed him of concerns
of being looked over for promotion or being ‘pushed’ out of the business. Mr Woodage does
not reveal the identity of those same petitioners, and there is no supporting detail provided
such as when the statements were made by the ‘employees’, whether they were made in
person or by email, what sites the ‘employees’ worked at, the positions held by the
‘employees’, or whether it was an ‘employee’ or multiple ‘employees’ that voiced concerns.
All that is before the Commission is the statement, ‘[T]he employees have said they are
worried about getting looked over for future promotions or getting pushed out if they are seen
as trouble-makers’. The inference that arises from the Second Woodage Statement is that the
purported concerns may have been communicated on Mr Woodage’s visits to the sites.
[74] The abovementioned concerns were not referenced in the First Woodage Statement.
In my view, there is limited evidence that assists in illuminating the circumstance surrounding
the making of the purported remarks.
[75] In Lovisa No.2, the Deputy President considered the respondent employer’s objections
and challenges to evidence of purported employee concerns. The Deputy President expressed
the following:
[44] The company objected to the evidence given by Ms Thwaites of employees’ professed
concerns on the basis that it is hearsay. It says that the Commission should not admit this
evidence, or alternatively afford it no or minimal weight. However, in my view this evidence
would fall within the exception to the hearsay rule contained in s 66A of the Evidence Act,
which provides that the rule does not apply to evidence of a previous representation made by a
person if it was a contemporaneous representation about the person’s health, feelings,
sensations, intention, knowledge or state of mind. The previous representations made by
employees to Ms Thwaites were that they were concerned of repercussions or scared; these
were contemporaneous statement by employees in respect of their feelings or state of mind.
However, even if the exception in s 66A did not apply, the Commission is not bound by the
rules of evidence (s 591), and I would admit the evidence of employees’ professed concerns
and rely on it on the basis that I consider it fair and just to do so, particularly given the
company led no evidence to refute Ms Thwaites’ testimony.45
[76] It is understood that the Commission is not bound to observe the rules of law
governing evidence. However, not being bound by such rules does not mean that the
acceptance of evidence is thereby unrestrained.46 The rules of evidence provide general
45 Ibid.
46 Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) PR948938.
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17
guidance as to the manner in which the Commission chooses to inform itself and, when
appropriate, the Commission is relieved of the need to observe the technicalities of the law of
evidence.47
[77] I am accepting of the approach of the Deputy President in Lovisa No.2.
Notwithstanding the perceived shortcomings of Mr Woodage’s account detailed at paragraph
[73], I am content to admit the evidence of the employees’ professed concerns into evidence
for the reason it goes to show the state of mind of the employee or employees and, as such,
will be relied upon for that purpose.
[78] In his evidence, Mr Woodage refers to South32’s hard-line approach to not wanting to
bargain, and the employees’ concern about the action of South32 were it forced to bargain.48
In this context, Mr Woodage details a purported communication from the Vice President of
South32 Operations, in which he is said to have informed the employees, ‘continue down this
path, the employer/employee relationship will drastically change’. There are observations to
be made regarding this aspect of Mr Woodage’s evidence concerning the purported
commentary of the Vice President.
[79] First, the evidence appears to be second-hand hearsay having been passed to
Mr Woodage by an unidentified employee or employees, who presumedly heard the
communication from the Vice President. Second, adopting an approach of not wanting to
bargain, whether ‘hard-line’ or not, does not in these circumstances give rise to an inference
that the same employer will thereafter victimise or target petitioners. Whilst the word
‘victimise’ was not adopted by Mr Woodage, it appears to be the gist of what Mr Woodage is
saying. Third, the purported communication of the Vice President similarly does not, on any
objective level, give rise to an inference that South32 will ‘victimise’ petitioners.
[80] As acknowledged by the Deputy President in Lovisa No.2, petitions are an obvious
way to demonstrate employee support for the purposes of s 237. They can be collated
quickly, simply and informally, whilst at times providing a sound evidentiary basis for the
Commission to assess whether there is majority support for bargaining.49 A petition in
principle is a method of assessment of majority support that accords with the object of Part 2-
4 to provide a ‘simple, flexible and fair framework that enables collective bargaining in good
faith’.50 While the requirement in s 577 is that the Commission performs its functions and
exercises its powers in a quick and informal manner, avoiding unnecessary technicalities.51
[81] The Commission is required to act in a way that is open and transparent.52 In Lovisa
No.2, it was said that ‘[O]penness is not an “all or nothing” proposition’. The Deputy
President went on to say that there may be a limitation on the extent of the ‘openness’ of the
proceeding related to the Commission’s other obligations.53 Those obligations include the
manner in which the Commission carries out its functions - which have been traversed above.
In this respect, I note that if, on an objective basis, employee apprehensiveness about
47 Ibid.
48 Second Woodage Statement [13].
49 Lovisa No.2.
50 Fair Work Act 2009 (Cth), s 171(a).
51 Fair Work Act 2009 (Cth), ss 577(a) and (b); Lovisa No.2 [33].
52 Fair Work Act 2009 (Cth), s 577(c)).
53 Lovisa No.2 [33].
[2021] FWC 3043
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disclosing support for bargaining to the employer is reasonable, then maintaining anonymity
is likely justified and a party would not be compelled to produce the unredacted petitions. In
my view, however, the reasonableness of employee apprehension or concern is to be assessed
in light of the surrounding circumstances, and the evidence led; A presumptive
apprehensiveness being insufficient to decline making the orders sought.
[82] While appreciative of the employees’ concerns, I am unconvinced that Mr Woodage’s
evidence establishes that the concern warrants a carte blanche refusal to grant the production
of the unredacted petitions CEPU’s list of employees, to South32. However, I will have more
to say on this point.
[83] With respect to its submissions, the CEPU noted that South32 was proposing a
departure from the usual practice or course adopted by the Commission when determining
majority support and that the employees had signed petitions on the condition of
confidentiality. Whilst, I have dealt with the apprehension of the employees above,
arguments based on the ‘usual practice or course’ and ‘confidentiality’ have not been
similarly addressed.
[84] South32 submitted that the CEPU had not cited any authority in support of its
submission regarding the ‘usual course’ and, in any case, the fact that previous Commission
members may have adopted a particular course in relation to previous proceedings is not
determinative that such a course is appropriate in these proceedings.
[85] The submission was correct insofar that the CEPU had not cited any authority
concerning its contention about the ‘usual course’. Yet, in the context of using petitions as
the method of determining the majority, it has been acknowledged that the ‘confidential
comparison of lists method’ is widely used as the method of determining majority support.54
This is usually by consent.55 However, it is correct to note that the fact that previous
Commission members may have adopted a particular course in relation to previous
proceedings is not determinative that such a course is appropriate in these proceedings.
[86] A representation to employees that confidentiality would be maintained such that the
identities of the employees would not be disclosed to South32 appears to have been short-
sighted. Mr Woodage was not positioned to make such representation to the employees, and
it is trite to note that the Commission is not obliged to give effect to such representation.
[87] On balance, I am satisfied that South32 has established that the unredacted petitions
are of apparent relevance to the case it advances and that there is a legitimate forensic purpose
for the documents sought given the concerns about the reliability of the petitions. The
CEPU’s list of employees is also relevant to that which is required to be determined. Namely,
because the list purportedly mirrors those persons who signed the petition(s).
[88] Insofar as the categories of documents are identifiable, it is apparent from the
application that the documents sought by South32 are readily identifiable given the
particularity by which they are described and are not voluminous. Their production,
therefore, would not, in my view, prove burdensome.
54 O’Keeffe [36].
55 Ibid.
[2021] FWC 3043
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[89] However, having accepted the evidence concerning the employees concerns as
detailed, I am of the view that a balanced approach is required and therefore, the order for the
production of the unredacted petitions and the CEPU’s list of employees, will in part reflect
the invitations or offers that the parties put forward. The legal representatives for both parties
have a duty to this Commission that extends to conducting themselves with probity, candour
and honesty.56
[90] It follows that:
a) the unredacted petitions and the CEPU’s list of employees will only be viewed by the
Respondent’s external legal counsel engaged in these proceedings (Herbert Smith
Freehills);
b) no use will be made of the information contained in these documents, other than in
relation to the conduct of these proceedings; and
c) all copies will be destroyed or returned to the CEPU upon the final resolution of these
proceedings (and any related appeal).
[91] The CEPU applied for orders that South32 provide a list of employees (the list of
employees are referred to as the ‘Electrical employees’ in the Statement of Agreed Facts to
the Commission). I consider that such a list is relevant to the matters to be determined, and in
the circumstances where there is contest over the reliability of petitions, it is appropriate for
such a list to be produced.
6.2 Confidentiality regarding the identity of relevant employees
[92] Section 594(1) of the Act vests a discretion in the Commission to make an order
prohibiting or restricting the publication of certain things in relation to matters before the
Commission if satisfied that it is desirable to do so because of the confidential nature of any
evidence, or for any other reason.
[93] Considerations of open justice and the administration of justice are clearly relevant to
the exercise of discretion to make an order under section 594(1) of the Act. However, these
considerations are not to be applied in a vacuum and need to be considered in the context of
the express power to prohibit or restrict publication of certain material having regard to its
confidential nature or for any other reason and the circumstances of a particular case.57
[94] The CEPU applied under s 594 of the Act for confidentiality orders concerning
“Annexure AW8” to Witness Statement of Adam Woodage dated 16 October 2020. The
annexure consists of the redacted petitions, albeit on Tuesday, 11 August 2021, unredacted
petitions were filed. On 16 October 2020, the CEPU filed a list of the names of the
employees who have signed the petitions.
[95] As identified by the Deputy President in Lovisa No.1, where employees have
expressed some concern to their union about the disclosure to the employer of their signatures
on a petition, apprehensiveness of this kind is taken to be understandable. Further, I consider
56 Giannelli v Wraith (1998) 165 CLR 543, 556 (Mason J); Council of the Queensland Law Society Inc v Wright [2001] QCA
58; Oram v Derby Gem Pty Ltd [2004] 134 IR 379 [62].
57 Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of
Australia, The Victorian Branch and Others [2015] FWC 4542 [15].
[2021] FWC 3043
20
the observation of the Deputy President in O’Keefe that the ‘confidential comparison of list
method’ is widely used as the method of determining majority support, uncontroversial.
[96] Petitions are an obvious way to demonstrate employee support for the purposes of
s 237. They afford a quick, simple and informal method to assess whether there is majority
support for bargaining.58 As was said in Lovisa No.2, a petition is in principle a method of
assessment of majority support that accords with the object of Part 2-4 and the requirement in
s 577. However, their usefulness may hinge in part on the signatories to the petitions being
able to maintain confidentiality regarding their identity – this is understandable in such a
context.
[97] I am satisfied in the context of these proceedings, having regard to that nature of the
information, that it is appropriate to make an order in terms such that the personal identity and
personal information of any individual petitioner and/or any individual employee qualified to
perform electrical work across the Boddington Bauxite Mine and Worsley Alumina Refinery
as referenced in the Statement of Agreed Facts, produced, disclosed, named, revealed or
referenced in this matter including, but not limited to, in any written document or in oral
evidence, shall be kept confidential.
6.3 Category Three: Provision of any supporting or explanatory material provided to
employees in relation to the petitions
[98] South32 submitted that there was a significant issue in dispute between the parties
related to the employees’ understanding of the petition and the context in which the petition
was presented. It submitted that a lack of full understanding of the purpose and effect of the
petitions, or false or misleading statements made during the petition process, may affect the
integrity of the petitions and them being evidence of majority support. I accept South32’s
justification for seeking the supporting or explanatory documents and consider the documents
relevant to the matters to be determined. Further, the description of the category is
sufficiently specific such that I do not consider that an order in this respect would prove
burdensome for the CEPU.
7. Conclusion
[99] For the aforementioned reasons, I have considered it appropriate to issue orders59 for
the production of documents and confidentiality orders.60
58 Lovisa No.2 [2019] FWC 2885.
59 PR730204.
60 PR730062.
[2021] FWC 3043
21
DEPUTY PRESIDENT
Appearances:
Ms. Alana Heffernan, of the CEPU, for the Applicant;
Mr. Giacomo Giorgi, of Herbert Smith Freehills, for the Respondent;
Ms. Rachel Lee, of Herbert Smith Freehills, for the Respondent.
Hearing details:
Perth;
December 1;
2020.
Printed by authority of the Commonwealth Government Printer
PR730210
WORK MMISSION
