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, 25 JUNE 2021
Order for the production of documents – proposed redaction of documents produced in
answer to order for production
Introduction
[1] This decision concerns an application by Falcon Mining Pty Ltd (Falcon Mining) for
certain parts of documents produced by it to the Fair Work Commission (Commission) in
response to an order for the production of documents to be redacted before the applicants are
given access to those documents.
Background
[2] The relevant background to this matter is set out in my earlier decision1 concerning the
making of an order for production of documents sought by the applicants. For ease of
reference, I repeat that background below:
“[1] The CFMMEU is the first applicant in these proceedings. It is also the
representative of the second, third, fourth, fifth and sixth applicants, who were
formerly employed by Falcon Mining Pty Ltd (Falcon Mining).
[2] The second to sixth applicants (Employees) were covered by the Falcon Mining
Enterprise Agreement 2017 (Enterprise Agreement) during their employment with
Falcon Mining.
[3] The Employees’ contracts of employment with Falcon Mining include the
following terms:
“3. Nature and Location of Employment
Your classification is prescribed in Schedule A. Unless terminated earlier in
accordance with the terms of this Contract, you will be employed on a full time
[2021] FWC 3684
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 3684
2
fixed term basis for the maximum commercial term of the Project defined in
Schedule A. Upon completion of the Project, your employment (and this
contract) will end without the need for either party to provide notice of Falcon
Mining to provide any termination payment.
…
Schedule A: Contract Summary
…
Item 5 Name of Project/ Location Contract Number: NC1705 – Cut and Fit
Development Work
Narrabri”
[4] In about June 2020, Falcon Mining gave notice to the Employees that their
“employment will come to an end on 26 June 2020, the date that the Contract will
reach its maximum commercial term. You are required to attend site to work your
remaining rostered shifts up until and including 26 June 2020.” Falcon Mining has
also informed the Employees that they are not entitled to notice of termination or
redundancy pay.
[5] The Employees claim, inter alia, that they are entitled to notice of termination and
redundancy pay under the terms of the Enterprise Agreement. They say that the
Project reached its maximum commercial term and was completed in late 2019, and
they remained employed by Falcon Mining on a different project or doing different
work from late 2019 until their termination in late June 2020.
[6] Falcon Mining contends, inter alia, that the Project came to an end on 26 June
2020. Falcon Mining has produced correspondence with its commercial client,
Narrabri Coal Operations Pty Ltd (Company), to support its contention in that regard.
[7] The applicants have asked the Commission to determine the answers to the
following questions by way of arbitration under the dispute settlement procedure in the
Enterprise Agreement:
1. Whether any of Falcon Mining’s employees engaged to perform work at the
Narrabri Underground Coal Mining Operation are entitled to:
a. notice of termination (or payment in lieu of notice) pursuant to
clause 11 of the Enterprise Agreement?
b. payment of untaken paid personal/carer’s leave at the termination of
their employment pursuant to clause 11.8 of the Enterprise
Agreement?
c. payment of severance pay and/or retrenchment pay pursuant to
clause 12 of the Enterprise Agreement?
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d. payment in respect of their accrued entitlement to paid annual leave
under clause 21 of the Enterprise Agreement and s 90(2) of the Fair
Work Act 2009 (Cth)?
2. If the answer to any of the questions in 1 above is “yes”, what amount is
payable in respect of each employee?
[8] Falcon Mining has proposed the following question for determination by the
Commission:
Are the Employees fixed term (including maximum term) employees under
clause 8.2 of the Enterprise Agreement?
[9] I have informed the parties that I will hear and consider both sets of questions in
the arbitration of the dispute.”
[3] Terms defined in my earlier decision dated 23 April 2021 have the same meaning in
this decision.
[4] Both parties filed and served detailed written submissions in relation to the request by
Falcon Mining to redact parts of documents before the applicants are given access to them. In
addition, Falcon Mining filed and served a statement by Mr McKenzie dated 20 May 2021. I
have read and considered those submissions and Mr McKenzie’s witness statement. I have
also read and considered the parts of the documents in respect of which the request for
redaction has been made.
Relevant principles
[5] The relevant principles concerning the making of an order for the production of
documents are set out in paragraphs [14]-[15] of my earlier decision dated 23 April 2021.
Those principles are also relevant to the dispute concerning whether or not I should exercise
my discretion to permit parts of documents to be redacted before the applicants access them.
In short, the interests of justice require that I balance a range of considerations including, on
the one hand, the interests of Falcon Mining and third parties such as the Company in
keeping the commercially sensitive aspects of documents such as the Work Contract
confidential and, on the other hand, the interests of the applicants in ensuring that material
which has apparent relevance (in the sense of throwing light on one or more issues in the
proceeding) is available to parties to enable them to advance their respective cases.
Works Contract
[6] Falcon Mining’s submissions in support of its contention that parts of the Works
Contract should be redacted seek to cavil with my earlier ruling as to the breadth of issues in
dispute and the apparent relevance of the Works Contract to those issues. The relevant parts
of my earlier ruling are as follows:
“Issues in dispute
[17] There are a broad range of issues in dispute between the parties to these
proceedings. Those issues include the following:
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whether the Employees were “fixed term” employees within the meaning of the
Enterprise Agreement?
what was the maximum commercial term of the project known as Contract
Number: NC1705 – Cut and Fit Development Work (Project)?
when was the Project completed?
did the contract between Falcon Mining and the Company (Works Contract)
conclude before the termination of the Employees? The applicants describe this as
the early termination issue.
did the work required of the Employees depart from that in the scope of the Works
Contract? The applicants describe this as the work outside scope issue.
Documents sought by the applicants
[18] I will now address each of the categories of documents sought by the applicants.
Category 1(a)
“1. Copies of any and all of the following documents that are in the
possession, control or custody of Falcon Mining Pty Ltd:
(a) Entire and unredacted copy of the Works Contract 2017 – NC1705
(Works Contract)”
[19] In an earlier decision,2 I determined that various clauses of the Works Contract
which Falcon Mining wanted to remain redacted ought not be redacted because they
were of apparent relevance to issues in the proceedings and did not disclose any
commercially sensitive information. A copy of the Works Contract (redacted in
accordance with my earlier decision) was provided to the applicants in about mid-
2020.
[20] The applicants now contend that they should be given access to a completely
unredacted version of the Works Contract. They submit that it is essential to see the
full terms of the Works Contract because they are central to understanding the
“maximum commercial term” of the Works Contract, ascertaining whether the Works
Contract came to an end, and ascertaining whether the work being performed by the
Employees fell outside the scope of the Works Contract, and the extent of such work.
[21] I accept that the Works Contract is of apparent relevance to these issues. Further,
in light of the detailed questions which have now been posed for determination and the
evidence filed in relation to them, it is apparent that the extent of the legal and factual
issues in contest in this matter is broader than could have reasonably been anticipated
at the time I made the previous decision concerning the Works Contract in mid-2020. I
accept the applicants’ contention that they need to see the entire Works Contract, save
purely commercial terms such as the pay rates in the contract, to construe the relevant
[2021] FWC 3684
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provisions of the Works Contract in context and make submissions about the issues
identified above.
[22] I will make an order in terms of category 1(a) but invite Falcon Mining to make
any submissions it wishes to make on the question of access to the Works Contract
and confidentiality when it produces the Works Contract to the Commission in
response to the order for production of documents.”
[7] In the table below I set out my rulings in relation to each part of the Works Contract in
respect of which Falcon Mining has made a claim for redaction. The balance of the Works
Contract has already been provided to the applicants.
Part of Works Contract Ruling – proposed redactions permitted to remain
redacted? – Yes or No
Page 3 Yes as to the information in the “Details” column of Item 8,
Item 9 and Item 10. Otherwise no.
Page 9 No
Page 10 Yes as to the definition of “Consequential Loss”. Otherwise
no.
Page 11 Yes as to the definitions of “Contract Price” and “Direct
Cost”. Otherwise no.
Page 12 Yes as to the definition of “Force Majeure”. Otherwise no.
Page 13 Yes as to the definitions of “Loss”, “Mark-up” and
“Overhead Fee”. Otherwise no.
Page 14 Yes as to the definitions of “Parent Company Guarantee”
and “PEV Damage Cap”. Otherwise no.
Page 15 Yes as to the definition of “Termination Break Costs”.
Otherwise no.
Page 16 No
Page 18 Yes as to clause 5. Otherwise no.
Page 19 No
Page 20 No
Page 21 Yes as to clause 13. Otherwise no.
Page 22 Yes as to the balance of clause 13 and clause 14. Otherwise
no.
Page 23 No
Page 24 Yes as to clause 16.6. Otherwise no.
Pages 25, 26 and 27 No
Page 28 Yes as to clause 17.4. Otherwise no.
Pages 29 and 30 No
Page 31 No as to the first line - “for the Contractor’s Personnel”.
Otherwise yes.
Page 32 Yes
Page 33 No as to clause 26. Otherwise yes.
Page 34 No as to the balance of clause 26. Otherwise yes.
Page 35 No
Page 36 No
Page 37 Yes as to clause 32. Otherwise no.
Pages 38 and 39 Yes
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Pag 40 Yes as to the balance of clause 35. Otherwise no.
Page 42 Yes as to clause 38. Otherwise no.
Pages 43, 44, 45, 46 and 47 Yes
Page 48 Yes as to the balance of clause 42. Otherwise no.
Pages 49, 50, 51 and 52 No
Page 53 Yes as to clause 52. Otherwise no.
Page 54 Yes
Page 55 No
Page 56 Yes as to clause 56.5. Otherwise no.
Page 57 No
Pages 59, 60, 61 and 62 No
Pages 68 and 69 No
Page 70 Yes as to clause 12.4. Otherwise no.
Pages 71, 72, 73, 74 and 75 No
Pages 76, 77, 78, 79, 80, 81,
82, 83, 84, 85, 86, 87, 88, 89
and 90
Yes
Pages 94, 95, 96, 97, 98, 99,
100 and 101
Yes
Pages 102, 103, 104, 105
and 106
No
Pages 107, 108, 109, 110,
111, 112, 113, 114, 115,
116, 117, 118, 119, 120,
121, 122, 123, 124, 125 and
126
Yes
[8] Where I have ruled above that a part of the Works Contract may be redacted by Falcon
Mining, that is because I am satisfied that the information to be redacted is highly
commercially sensitive and does not have any apparent relevance to the issues in dispute.
Where I have ruled above that a part of the Works Contract is not to be redacted, that is
because the information has apparent relevance to the issues in dispute and the commercial
sensitivity of the information does not warrant or justify its redaction.
Proposed redactions of other documents
[9] My rulings in relation to each part of the other documents in respect of which Falcon
Mining has made a claim for redaction are as follows:
Page in Falcon
Mining’s bundle
of documents
Ruling – proposed
redactions permitted
to remain redacted?
– Yes or No
Reasons for ruling
133 Yes as to third bullet
point. Otherwise no.
Third bullet point relates to an
accommodation allowance paid to a
particular employee. The information in
the third bullet point is not of any
apparent relevance to the issues in
dispute.
[2021] FWC 3684
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The first two bullet points relate to hours
to be worked by employees and may
throw light on when particular work was
completed. The commercial sensitivity of
this information does not warrant or
justify its redaction.
148-159 and 161 Yes The labour rate and labour cost figures are
highly commercially sensitive. They are
not of any apparent relevance to the issues
in dispute.
The quantity of labour and other items are
not proposed to be redacted. This
information may throw light on when
particular work was completed.
The % overhead fee and % mark up
amounts on page 161 are highly
commercially sensitive. They are not of
any apparent relevance to the issues in
dispute.
Pages 832, 834-
836, 838, 842,
844-846, 848-
849, 851, 853-
855, 857-859,
861, 864-867,
869, 871-872,
874-875, 877,
879-886, 888-
889, 891-892,
894-896, 898-
900, 902-904,
906-910, 912-
913, 915-921 and
923-924
No as to the “HR”
information on the
following pages:
- 832
- 834
- 836
- 838
- 842
- 844
- 846
- 848
- 851
- 853
- 855
- 857
- 861
- 864
- 866
- 869
- 871
- 874
- 877
- 879
- 881
- 883
- 886
- 906
- 909
Otherwise yes.
The “HR” information may throw light on
when particular work was completed. The
commercial sensitivity of this information
does not warrant or justify its redaction.
The “health, safety and environment”,
“accommodation” and “COVID-19”
information which is proposed to be
redacted is not of any apparent relevance
to the issues in dispute.
Conclusion
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[10] For the reasons given above, by 4pm on 2 July 2021, Falcon Mining is directed to
provide the Associate to Deputy President Saunders with a fresh copy (electronic, preferably)
of all documents produced by it in response to the order for production of documents made by
Deputy President Saunders, with parts of such documents redacted in accordance with the
rulings set out above. On receipt of such documents, the Commission will send an electronic
copy of them to Mr Bukarica and Mr Patrick of the CFMMEU.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR731072
1 [2021] FWC 2289
2 [2020] FWC 3936
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
