DECISION

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

Lynne Pezzullo, Professor John Rose, Professor Phil Lewis
4 yearly review of modern awards – penalty rates
(AM2014/305)

HOSPITALITY INDUSTRY (GENERAL) AWARD 2010 and others
[MA000009 and others]

PHARMACY INDUSTRY AWARD 2010
[MA000012]

GENERAL RETAIL INDUSTRY AWARD 2010 and others
[MA000004 and others]

4 yearly review of modern awards – Orders for the production of documents – claim of legal professional privilege – waiver of privilege

Background

[1] As part of the 4 yearly review of modern awards under s.156 of the Fair Work Act 2009, the Fair Work Commission (Commission) is reviewing penalty rates in a number of awards in the hospitality and retail sectors.

[2] Relevantly for present purposes the following expert reports have been filed:

[3] On 31 August 2015 the Commission (Vice President Catanzariti) issued Orders requiring the production of documents. Those Orders were directed to:

a) Ms Pezzullo in relation to the Pharmacy Report (Pezzullo Pharmacy Order);

b) Ms Pezzullo in relation to the Hospitality Report (Pezzullo Hospitality Order);

c) Professor Rose in relation to the Rose Report (Rose Order); and

d) Professor Lewis in relation to the Lewis Report (Lewis Order).

(collectively, “the Orders”)

[4] The Orders required the production of documents by 4.00 pm on Thursday, 10 September 2015.

[5] Objections were filed in respect of the Orders as follows:

[6] United Voice and the Shop Distributive and Allied Employees’ Association (SDA) objected to the claim of legal professional privilege and, in the alternative, submitted that, if legal professional privilege applies to the documents, any such privilege has been impliedly waived.

[7] Submissions in relation to the objections to the Orders were listed for hearing at the commencement of the proceedings before the Full Bench on 8 September 2015. On that occasion, the Full Bench decided to refer the objections to another member of the Commission to determine.

[8] On 9 September 2015, the Commission as presently constituted conducted a hearing to deal with the objections to the Orders. At that hearing:

a) ABI/NSWBC was represented by Mr Luis Izzo from ABLA;

b) the AHA and the Pharmacy Guild was represented by Mr Michael Seck of counsel and Ms Sharlene Wellard from Meridian;

c) United Voice was represented by Mr Craig Dowling and Ms Kate Burke, both of counsel; and

d) the SDA was represented by Mr Stephen Moore of Queens Counsel and Ms Anna Forsyth of counsel.

[9] At the hearing on 9 September 2015, the Commission as presently constituted proposed that it review the Disputed Documents to determine if the asserted legal professional privilege had been waived. ABI/NSWBC, the AHA and the Pharmacy Guild consented to that proposed course of action.

[10] Both United Voice and the SDA objected to the Commission reviewing the documents. They submitted that none of the Employer Groups had discharged the onus of first establishing that legal professional privilege applied to the documents.

[11] The AHA and Pharmacy Guild had submitted no evidence in relation to the matter and the Commission as presently constituted was not satisfied that the evidence filed by ABI/NSWBC sufficiently discharged the onus.

[12] Consequently, ABI/NSWBC, the AHA and the Pharmacy Guild where directed to file and serve additional evidence in relation to the claim for legal professional privilege. They were required to do so by 4.00 pm on Thursday, 10 September 2015 (Additional Evidence Direction).

[13] In compliance with the Additional Evidence Direction, affidavits sworn by Ms Wellard and Mr Izzo were filed and served. In her affidavit, Ms Wellard stated that “No claim of legal professional privilege is made in relation the Pharmacy Report”.

[14] On 11 September 2015 the:

a) National Industrial Officer for United Voice; and

b) the solicitors for the SDA

wrote to the Commission and indicated that, having reviewed the additional evidence, both unions now accepted that there was a proper evidentiary basis upon which the Commission could be satisfied that the claim for legal professional privilege had been made in respect of the Dispute Documents.

[15] Further, both United Voice and the SDA advised that they no longer had any objection to the Commission reviewing the Dispute Documents to determine whether legal professional privilege had been waived.

Principles of legal professional privilege and waiver

[16] The Commission as presently constituted has had regard to the submissions of the parties made in this matter. It was common ground between the parties that the relevant legal authorities include Australian Securities and Investments Commission v Southcorp (Southcorp),¹ New Cap Reinsurance Corporation Limited (in Liq) & Or v Reinsurance Reinsurance Ltd (New Cap),² Shea v TrueEnergy Services Pty Ltd (No.5) (Shea),³ Linter Group Ltd v Price Waterhouse (Linter).⁴ The Commission as presently constituted has had regard to those authorities.

[17] The task then is to determine whether it can be said that the Disputed Documents influenced the content of the Reports in such a way that it would be unfair for the Employer Groups to rely upon the Reports without disclosing the Disputed Documents.

[18] The Disputed Documents could be said to influence the content of the Reports if, in relation to the content of the Reports, they:

a) provide new briefing materials, new information or terms of reference for the Reports;

b) involve any requests by the lawyers or their clients the relevant experts to conduct any additional or different:

i. process of reasoning;

ii. methodology; or

iii. research.

[19] Put another way, the question to be answered is whether the Disputed Documents influenced the content of the Reports in a substantial sense. If the Disputed Documents only influenced the content of the reports in the sense of form or other peripheral matters, legal professional privilege will not have been waived.

Document review

[20] The Disputed Documents are listed in column 2 of the table under paragraph [5] above. The Employer Groups provided the Commission with Universal Serial Bus (USB) mass storage devices uploaded with the Disputed Documents. In addition ABLA had previously provided the Commission with print-outs of the Disputed Documents.

[21] In line with the authorities referred to in paragraph [16] above, the Commission as presently constituted viewed all of the Disputed Documents on 12 September 2015.

[22] Having undertaken that exercise, the Commission as presently constituted is satisfied that:

a) none of the Disputed Document influenced the content of the Reports in a substantial sense; and

b) to the extent that it could be said that any of Disputed Documents influenced the content of the Reports, they did so only in the sense of form or other peripheral matters.

Conclusion

[23] Consequently, there should be no Order for the production and inspection of the Dispute Documents, legal professional privilege properly attaches to the same and has not been waived.

COMMISSIONER

Appearances:

Mr Luis Izzo from Australian Business Lawyers for ABI/NSWBC.

Mr Michael Seck of counsel and Ms Sharlene Wellard from Meridian Lawyers for the AHA and the Pharmacy Guild.

Mr Craig Dowling and Ms Kate Burke, both of counsel for United Voice.

Mr Stephen Moore of Queens Counsel and Ms Anna Forsyth of counsel for the SDA.

Hearing Details:

2015.

9 September.

Melbourne with a video link to Sydney.

1 (2003) 46 ACSR 438.

2 [2007] NSWSC 258.

3 [2013] FCA 937.

4 [1999] VSC 245.

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