1
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Association of Professional Engineers, Scientists and Managers, Australia
v
Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining
Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd
(B2023/1339)
DEPUTY PRESIDENT HAMPTON
DEPUTY PRESIDENT WRIGHT
COMMISSIONER MATHESON
ADELAIDE, 5 MARCH 2024
Application by the Association of Professional Engineers, Scientists and Managers, Australia
[1] On 6 December 2023, the Association of Professional Engineers, Scientists and
Managers, Australia (APESMA or Applicant) made an application pursuant to s.248 of the
Fair Work Act 2009 (Act) for a single interest employer authorisation. The authorisation is
sought in respect of bargaining for an enterprise agreement to cover certain employees in the
black coal mining industry. In particular, in its current form, the application seeks authorisation
of the commencement of multi-employer bargaining with four employers, namely: Great
Southern Energy Pty Ltd T/A Delta Coal (Delta Coal), Whitehaven Coal Mining Ltd
(Whitehaven), Peabody Energy Australia Coal Pty Ltd (Peabody) and Ulan Coal Mines Ltd
(Ulan) (collectively the Respondents).1
[2] Each Respondent has opposed the application made by APESMA on various grounds.
The matter has been referred to this Full Bench by the President. The substantive hearing of the
matter has been listed for late Aril and early May this year.
[3] While dealing with various interlocutory matters, two issues have arisen that require the
decision of this Full Bench. These relate to an application to be heard (intervention) made by
2 parties and a contested application for the production of materials made by Peabody against
APESMA, in effect on behalf of the Respondents (production order application). This
decision deals with these two aspects.
Intervention
[4] During February 2024, both the Australian Council of Trade Unions (ACTU) and
Minerals Council of Australia (MCA) filed an application to intervene in the present
proceedings. These are, in effect, requests by non-parties to make submissions and/or provide
material to enable the Commission to inform itself about the application under s.590(1) of the
Act. Whether to permit such “intervention” is a matter of discretion for the Commission.
[2024] FWCFB 106
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 106
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[5] The ACTU and MCA have indicated that they seek to make submissions about the
proper construction of the relevant Part of the Act. In addition, MCA seeks the capacity to
provide evidence. Whilst neither intervention application is contested by any of the parties,
APESMA oppose the request by the MCA to permit it to tender and challenge evidence.
[6] During a Directions Conference2 before Hampton DP, MCA indicated that the extent of
the evidence sought to be tendered was a statement from an expert witness.
[7] We are satisfied that it is appropriate to permit both the ACTU and MCA to intervene.
This is a significant test of relatively new provisions, and the Commission will be assisted by
submissions about the proper construction of the Act. In terms of MCA’s additional request,
we do not consider that it should be permitted to participate as if it was a direct party to the
proceedings. It has members that are named to be covered by the proposed Agreement, but
these are already separately represented in these proceedings and its broader interests do not
warrant being treated as a direct party. Consistent with that approach, MCA is not to be
permitted to lead evidence that could properly be led by the direct parties, and we do not
consider that it should generally be permitted to cross-examine any witnesses.
[8] As to the foreshadowed request to provide expert evidence, there is no detail about this
or an explanation as to why this cannot be led by one of the parties or how it might assist the
Commission. In that light, we propose to permit MCA to file and serve the intended evidence
on or before 15 March 2024. The Full Bench will subsequently determine whether to admit this
evidence, better informed about the nature and purpose of that material.
[9] Should any party seek a determination of that issue ahead of the filing and service of
reply submissions on 5 April 2024, liberty is granted.
Production order application
[10] On 20 February 2024, Peabody made an application relying upon s.590(2)(c) of the Act
for orders requiring APESMA to produce documents relating to the present proceedings. This
application is opposed by APESMA and has now been subject to oral and written submission.
[11] The Order for Production sought specifically:
1. All documents recording or referring to any of the meetings referred to in
paragraph [25] of the witness statement of Catherine Bolger dated 29 January
2024 (Bolger Statement), including any of the following:
a. any notice of meeting, agenda, or other meeting papers;
b. any minutes of those meetings; and
c. any notes or emails recording or referring to the business of those
meetings.
2. All documents recording or referring to any communications in the period
1 April 2023 to 5 December 2023 between APESMA and any persons then
employed by any of the respondent employers in matter B2023/1339 in a role
covered by the proposed agreement regarding:
[2024] FWCFB 106
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a. multi-enterprise bargaining;
b. a single interest employer authorisation (SIEA);
c. the log of claims dated 18 November 2023 (at pages 13 to 17 of the Bolger
Statement);
d. any of the meetings referred to in paragraph [25] of the Bolger Statement;
and/or
e. a survey or vote for a SIEA covering the employer respondents, including
the ballot referred to in the witness statement of Robert Coluccio dated
20 December 2023 (Coluccio Statement).
Definitions:
“Document” – for the purposes of this Order, Document:
a. is to be given a meaning consistent with the Evidence Act 1995 (Cth) to mean
any record of information, in the possession, custody or control of APESMA,
and includes:
i. anything on which there is writing; or
ii. anything on which there are marks, figures, symbols or perforations having
a meaning for persons qualified to interpret them; or
iii. anything from which sounds, images or writings can be reproduced with
or without the aid of anything else; or
iv. a map, plan, drawing or photograph;
b. does not include any document that APESMA has already served or produced to
Peabody Energy Australia Coal Pty Ltd in this proceeding at the time of this
Order.
[12] The context for the application is that amongst other requirements, the Commission
must assess whether APESMA has demonstrated that a majority of relevant employees at each
of the Respondents want to bargain for the proposed multi-employer agreement (s.249(1B)(d)
of the Act). APESMA relies upon a combination of meetings and employee petitions/votes to
support that contention, which is disputed by the Respondents.
[13] The proposed order seeks, in effect, documents related to the meetings (meeting
records) and documents related to the communications between APESMA and its relevant
members (communication records).
[14] Peabody contends that the principles applied by the Commission support the making of
the proposed orders as they relate to documents that have apparent relevance to the issues in
dispute, are sought for the purpose of supporting a case that it intends to advance, and their
production would not oppressive or unreasonable.
[2024] FWCFB 106
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[15] Peabody foreshadowed that it intends to argue that the majority support requirement of
the Act requires the Commission to assess whether the employees who participated in the
petition gave informed support. That is, whether they understood the nature and consequences
of the bargaining that was being proposed. This, it contended, was relevant to both categories
of records being sought.
[16] Peabody further contends that the meeting records sought reference meetings that
APESMA has led evidence about and rely upon in support of their application, and that their
relevance is not only to APESMA’s status as being a representative of the industrial interests
of the relevant employees, but also to the question of (informed) majority support.
[17] In relation to the communications records, Peabody contends that the evidence provided
by APESMA to date indicates that only limited information was provided to the employees as
part of the petitions/votes and the full context of the communications is relevant and the
documents should be produced.
[18] Peabody accepted that the names of individuals could be redacted from the records if
appropriate.
[19] The other Respondents adopted Peabody’s submissions, supported the production order
application, and sought access to any documents produced given that the scope included
meetings and communications with employees belonging to each of the employers.
[20] APESMA contends that the production order application was, at best, premature as it
sought production in advance of there actually being any evidence to suggest there is an issue
to be determined. Further, APESMA contends that the application is nothing more than a fishing
expedition to simply go looking for documents to explore whether there is a supportable basis
for a case. This it submitted is inconsistent with relevant authority. 3
[21] APESMA also contends that it was open for the Respondents to argue that it had failed
to satisfy the Commission on the majority support issue at a later time and that even if Peabody
was able to support its argument with evidence, it would not persuade the Commission on that
issue.
[22] Finally, APESMA contends that it was generally quite unclear as to what might be
caught by the proposed order over a very extensive period and would require a burdensome
exercise of trying to go through every communication that any official or delegate had with any
member that may have touched on any of those subject matters over that relevant period and
would involve some interpretation of what those subject matters properly are.
[23] In reply submissions, Peabody contends that the material being requested is relevant to
a case that is being advanced and that the evidence provided by APESMA leads to doubt that
the relevant employees understood the basic implications of the multi-employer bargaining
authorisation sought by the application.
[24] The Full Bench of the Commission in Esso v “Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia (CEPU)4 (Esso) stated as follows:
[2024] FWCFB 106
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“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,1which we adopt without repeating them. It is sufficient to observe that the
powerunders.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.”(citation omitted)
[25] We add for our part that the notion of a “fishing expedition” is that an order to produce
is not to be used for the purpose of exploring whether there is a supportable basis for a case that
might potentially be advanced.5
[26] Further, the factors described in Esso guide the Commission’s discretion but are not
akin to jurisdictional perquisites.6
[27] Although Peabody has raised the notion that the material being sought was “relevant to
the status of APESMA as a bargaining representative”,7 we do not understand that Peabody, or
the Respondents more generally, contest the capacity for APESMA to apply for the
authorisation or to act as the bargaining representative of the relevant employees. We also
observe that Peabody accepts that a majority of the relevant employees responded to
APESMA’s survey/petition affirmatively and it is not seeking to look behind the employee
numbers and identification process verified by the Commission under the December Directions.
We deal with the production order application on that basis.
[28] Peabody and the Respondents are directly contending that the Commission cannot be
satisfied that a majority of relevant employees at each of the Respondents want to bargain for
the proposed multi-employer agreement (s.249(1B)(d) of the Act). They contend, in part, that
in order to do so, the employees who participated in the processes leading to apparent
endorsement must have had a “full understanding” of the purpose and consequences of the
survey and the proposed authorisation, and this is also in contest. We observe that this approach
would raise important construction issues; however this is not the context to determine whether
the proposition is sound. This is the first substantially contested application of this kind and the
issue is largely untested in similar statutory settings.
[29] The material sought has apparent relevance to the case that the Respondents are running
and arises from the evidence provided by APESMA and the basis of its case. That evidence
also supports the notion that some relevant documents of the kind sought are likely to exist and
have not been provided.
[2024] FWCFB 106
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[30] No objection has been made on the basis that the production would reveal internal
deliberations.
[31] In all these circumstances, we consider that a production order should be made, but in
more limited terms. The scope of the proposed order in relation to both aspects is too broad.
[32] The scope of the meeting records will be limited to certain classes of documents named
in the Order; namely any notice of meeting, agenda, or other meeting papers and any minutes
of the relevant meetings. The scope of the communication records will also be limited to certain
classes of documents that it has provided to the relevant employees. Those documents will be
those that APESMA has provided to the relevant employees regarding:
• multi-enterprise bargaining for the black coal mining industry;
• the making of a single interest employer authorisation (SIEA) for the black coal
mining industry;
• the log of claims dated 18 November 2023 (at pages 13 to 17 of the Bolger
Statement); and
• a survey or vote for a SIEA covering the employer respondents, including the ballot
referred to in the witness statement of Robert Coluccio dated 20 December 2023.
[33] Full details, including the time period involved, are set out in the Order8 that is being
issued in conjunction with this Decision.
[34] We will allow APESMA to redact the names and contact details of any employees cited
in the material to be produced.
[35] The material is to be produced to the Commission by 19 March 2024 and, subject to any
further order, it will be made available to all of the Respondents.
[36] We have made no decision yet as to the ultimate admissibility of the material.
DEPUTY PRESIDENT
Appearances:
I Taylor SC for the Association of Professional Engineers, Scientists and Managers, Australia
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
[2024] FWCFB 106
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R Dalton KC for Peabody Energy Australia Coal Pty Ltd
J Mattson for Great Southern Energy Pty Ltd T/A Delta Coal
A Khouri for Wollongong Resources Pty Ltd
J Murdoch KC for Ulan Coal Mines Pty Limited
V Bulut of Counsel for Whitehaven Coal Mining Ltd
S Kemppi for the Australian Council of Trade Unions
G Giorji for the Minerals Council of Australia
Hearing details:
2024
February 23
MS Teams.
Final written submissions:
27 and 29 February 2024.
Printed by authority of the Commonwealth Government Printer
PR771787
1 Wollongong Resources Pty Ltd (Wollongong Resources) was originally named as a Respondent in APESMA’s application.
However, the Commission has been advised that APESMA is no longer pursuing the application against Wollongong Resources
and the application has been amended to remove this entity.
2 23 February 2024.
3 Relying upon Woodside Energy Ltd v Australian Worker’s Union [2022] FWCFB 168 at [29] and Construction, Forestry,
Maritime, Mining and Energy Union v MacKellar Mining Pty Ltd [2022] FWC 690 at [166].
4 [2017] FWCFB 2200.
5 Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995 at [19] and Woodside Energy Ltd v Australian Worker’s Union
[2022] FWCFB 168 at [29]
6 Woodside Energy v AWU [2022] FWCFB 168 at [25].
7 Written submissions 23 February 2024.
8 PR772057.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb168.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc690.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb2200.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3995.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb168.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb168.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr772057.pdf
