Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Luke Faulkner
v
BHP Coal Pty Ltd
(U2014/4966)

Mr Shannon Boal
v
BHP Coal Pty Ltd
(U2014/5272)

Objection to Orders requiring production of documents to Fair Work Commission

Introduction

[1] This decision relates to an objection by the CFMEU on behalf of Mr Luke Faulkner and Mr Shannon Boal (the Applicants) in relation to Orders requiring the production of documents issued under s.590(2) of the Fair Work Act 2009 (the Act) at the request of the Respondent, BHP Coal Pty Ltd.

[2] On 22 July 2014, three Orders requiring the production of documents in relation to matter number U2014/4966 and one Order requiring the production of documents in relation to matter U2014/5272 were initially confirmed, as is regular practice. The Respondent also made a request for the issue of an additional Order on Wednesday 23 July 2014. All relevant Orders will be dealt with in this Decision.

[3] An objection was received from the CFMEU, and the matter was listed with Directions for hearing. The Applicants made an application to have the Orders revoked, and in the alternative to have the orders varied. The application was made pursuant to s.603 of the Act.

[4] The Orders for production are sought in the context of substantive proceedings in respect of applications for unfair dismissal proceedings under s.394 of the Act.

[5] The Orders for production are for telephone records of the Applicants, broadly for a period from the implementation of a new policy restricting the use of mobile phones on site The Orders are directed to Telstra, Singtel, Vodafone and Optus.

Summary of the Applicants’ Submissions

[6] The Applicant submitted that the Respondent has failed to demonstrate the relevance of the documents sought in terms of the relevant tests. The Applicants oppose the orders on a number of grounds including on the basis of harshness and alleged breach of privacy to the Applicants and other persons named in the Orders.

[7] The Applicant argued that the Orders are not drafted with reasonable particularity. Further, that the Orders are entirely speculative and amount to a ‘fishing expedition’. It is submitted that the documents and time period that fall within the scope of the Orders are so wide as to be oppressive or seriously and unfairly burdensome to the recipients, for example, the documents relate to significant periods were the Applicants were not even at work. The Commission noted the documents would have to be redacted against relevant rostered hours, to be reasonably founded and relevant.

[8] The Applicant relied on the decision of Commissioner Williams in G4S Custodial Services Pty Ltd v Trevor Abbott & Ors [2011] FWA 7771. The Applicant submitted that the principles endorsed in G4S Custodial Services were of significance to the issue of burden. In that case, Commissioner Williams considered whether the documents sought were for a legitimate forensic purpose and did not amount to a fishing expedition, had been sufficiently particularised, were materially relevant to the substantive application, were oppressive on the third party recipient and were sought from the other party before a third party.

[9] The Union emphasised that the employees were not requested in relation to the specific documents prior to the seeking of the Orders. Furthermore they emphasised the broad scope of the documents and the burden this may place on the third party telecommunication companies and the Commission in redacting the documents to the relevant specificity of dates and hours.

[10] Further, the Applicant submitted that the Orders raise issues in relation to the public interest and the due administration of justice. The Applicant submitted the issuing of the Orders at this late stage after filing of their material will disrupt the conduct of the trial and that Orders could have been obtained at an earlier stage.

[11] The Applicant does acknowledge the balance that has to be considered by the Commission to have all relevant information before it, but other considerations in terms of privacy, confidentiality and fairness that attached to the documents sought, must also be weighed.

Summary of the Respondent’s Submissions

[12] The Respondents submitted that the documents returnable pursuant to the Orders to produce go directly to issues in dispute between the parties. In particular, it was submitted that the documents will resolve factual issues in dispute and may be relevant to the Commission’s determination of valid reason, harshness, reinstatement and compensation.

[13] The Respondent does not accept that the issues raised by the Applicant justify the

revocation of the Orders.

[14] The Respondents submit that the Applicant has brought into issue the use of the mobile phones by the Applicant on days other than those that led to the dismissal. To the extent that the produced documents show other instances of breach of the Policy, the Respondent may rely on that evidence as justification in support of the dismissal, whether or not those instances were a reason for the termination.

[15] The Respondent submitted that they had given such a broad scope to the material to be produced so as to save the recipients of the order from having to provide multiple records, each pertaining to a particular set of dates and times. The Applicants emphasised that the broad scope of information, much of which may not be relevant or admissible, was a fishing expedition, burdensome and in breach of the Applicants’ privacy.

[16] The Respondent conceded that any records of the Applicant’s phone usage outside his rosters were irrelevant to the substantive matter. The Respondent indicated it would be prepared to provide the dates and times of the Applicant’s rosters so that any irrelevant records of phone usage may be redacted via a process overseen by the Commission.

Considerations

[17] The Commission is not strictly bound by the rules of evidence. However, in exercising its discretion to issue an order to produce, the Commission will generally be guided by the rules of evidence and the relevant case law, in which broad principles have emerged in considering Orders to produce. In Coates Hire Operations Pty Ltd v AMWU [2013] FWC 1585, Commissioner Bull referred to Justice Munro’s decision in Clerks (Alcoa) Case 1:

In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.

...

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

...

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.

[18] Further, the tests were relevantly set out in Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364, in which Collier J cited with approval a list of principles which Greenwood J had earlier stated to be relevant in deciding whether to issue a subpoena in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233. The following principles are relevant:

1. the documents for production must be identified with reasonable particularity 2;

2. the category of documents must not be so wide as to be oppressive;

3. the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings. The adjectival relevance looks towards the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings (cf Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90);

4. the documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the Applicant’s existing case. It cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case 3, or to investigate the character of the opposing party’s evidence4;

5. the test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some apparent potential relevance to the pleadings as they stand 5;

6. there must be a legitimate forensic purpose for the production of documents 6;

7. a subpoena should not be issued in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings 7;

8. a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave;

9. the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.

[19] The Commission has a broad discretion to inform itself under s590(2) of the Act:

590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any

matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following

ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the

FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to

provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the

regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to

prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

[20] The Applicant raised that the requests for Orders by the Respondent were not provided to the Applicant. The Respondent submitted that they complied with the obligations under the Fair Work Commission Rules 2013. Rule 54 provides:

54 Order for production of documents

(1) A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by requiring a person to provide copies of documents or records, or provide any other information, under subsection 590(2) of the Act.

Note: The request must be in the approved form—see subrule 8(2).

(2) If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to produce the documents, records or other information.

(3) The order may be satisfied by producing the documents, records or other information specified in the order to the General Manager or other employee of the Commission at the place specified in the order no later than 4 pm on the day before the day specified in the order for the provision of the documents, records or other information.

[21] The Respondent complied with their obligations under the rules. The initial Orders have lapsed in time and, based on correspondence, required additional information for the third parties to comply with the Orders.

[22] The Commission has a wide discretion to pursue matters relevant to the consideration of the issues before it. Issues of fairness and procedure must also be balanced.

[23] In order to grant an order to produce, the records sought by the Respondent must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matter in dispute. The Orders to produce relate to phone records of the Applicants and another. The substantive matters involve the alleged use of a mobile phone in contravention of the company policy limiting such use on site. I am satisfied that the phone records of the Applicant may well be capable of being relevant to the issues in contention. However, I am mindful of the need to balance the Applicant’s privacy and the public interest with this. The Orders to produce in their current form were of a broad scope, relating to all telephone usage of the Applicants and Ms Bessie-Lee Emblen between 19 November 2013 and for Mr Faulkner, 4 February 2014 and for Mr Boal and Ms Emblen, 12 February 2014. This broad scope relating also to non-work hours clearly is wider than the required relevance of phone use during work hours and has the ability to compromise the Applicants’ privacy.

[24] Orders for production of documents should not be used as a tool to substantiate a valid reason after the fact. However post dismissal conduct that becomes apparent may be relevant considerations in termination proceedings 8.

[25] It was open to the Respondent to seek the records from the Applicant in the first instance and also to seek the orders earlier in the proceedings. Such material, however, was not sought at an early stage and one additional consideration is that to allow for its production now would require for the Directions to be set aside or amended.

[26] Having considered the relevant principles from the case authorities and the competing interests in this matter it is appropriate to allow the current Directions to run on the evidence, without the need for the orders for the production of further material.

[27] I do not rule out the opportunity for the Respondents to reserve their rights to argue after the hearing of such evidence that specific records be produced for particular periods in relation to a specific argument. Relevant argument would be heard from the Applicant if an application was received.

[28] Accordingly the current Orders that have lapsed in time will be set aside and the recipients so advised. The Directions already issued remain in place to be complied with. The hearing of the evidence will proceed. If, as a result of the hearing, specific records are sought on reasonable grounds in relation to a particularised matter in contention, related to the reasons for dismissal, such will be considered against the tests.

[29] The orders are revoked pursuant to s.603(2)(b)(i) of the Act. The application for the additional Order is dismissed.

[30] I Order accordingly.

COMMISSIONER

 1   [1988] AIRC 391 Print H2892 at p 2

 2   Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ

 3   Hennessy v Wright (1988) 21 QBD 509

 4   Griebart v Morris [1920] 1 KB 659,666

 5   Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101

 6   Dorajay Pty Ltd v Aristocratic Leisure Limited [2005] FCA 588 at [34]

 7   Diddams v Commonwealth Bank of Australia [1998] FCA 497

 8   Metricon Homes Pty Ltd v Bradley (2009) 181 IR 115

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