DECISION

Fair Work Act 2009
s.590(2)(C) Applications for order for production of documents to the Fair Work Commission

Mr Gordon Cooper and Ms Rosemary Cooper
(AB2016/519, AB2016/520)

Application for an FWC order to stop bullying – Application for order for production of documents – Order issued subject to supplementary orders concerning restricting use of documents.

[1] This Decision relates to two separate applications for production of documents pertaining to the two separate applications for orders to stop bullying. On 18 October 2016 the Applicants in the two matters, Mr Gordon Cooper, and Mrs Rosemary Cooper, (the Applicants) requested that Orders be issued that Jayex Healthcare Limited (Jayex) and other named persons produce a number of documents relevant to their respective applications.

[2] The documents sought by the Applicants to be produced, include:

1. The Synergy Workplace Investigations bullying investigation report commissioned by Jayex dated 1 September 2016 (the Report); and

2. They Jayex Board Minutes for the meeting held on or about 22 July 2016 (the Minutes); and

3. Correspondence, including posted mail, courier mail and email from Jayex to the named respondents:

a. Enclosing, summarising, giving effect to or otherwise referring to the Report; and

b. Enclosing, summarising, giving effect to or otherwise referring to any Board resolution referred to in the Minutes (collectively referred to as the Correspondence).

[3] Jayex is the Employer of both the Applicants and some of the people against whom bullying is alleged.

[4] By way of background, on 1 September 2016 the Representative of both Applicants, Mr Stephen Hughes, Partner, Piper Alderman, initially sought that the FWC issue Directions requiring the disclosure of the abovementioned documents prior to a Conference held between the parties on 7 September 2016. On 2 September 2016, the Representative for the Employer and the persons against whom bullying is alleged, Ms Susan Moran, Consultant, McCabes Lawyers, opposed the production of these documents on the basis that they contain confidential information.

[5] On 12 October 2016, a Directions hearing was held for programming and also to address the matter of the applications for production.

[6] At the directions hearing the s.789 applications were listed for Hearing on 21, 22 and 23 November 2016. The Applicant’s representative filed Form F52 applications for the production of documents and submissions in support of the applications on 18 October 2016, and the representative of the Employer and the named persons against whom bullying is alleged filed submissions opposing the issuing of the Orders.

[7] The Fair Work Commission (the Commission), pursuant to s. 590 (1) of the Fair Work Act 2009 (the Act) has the power to “inform itself in relation to any matter before it in such manner as it considers appropriate, which pursuant to s.590(2)(c) includes ‘requiring a person to provide copies of documents or records, or to provide any other information to the FWC”.

[8] In considering whether to grant the Orders to produce, the applicable test is whether the documents have been specified with reasonable particularity, and whether the documents have an apparent relevance to the issues in the matter. 1

SUBMISSIONS

The Report

[9] The Investigation Report was commissioned by Jayex Healthcare following complaints made by the Applicants.

[10] The Applicants said that the Report is referred to in the application and referred to and relied upon in the filed F73 Response to the application at paragraphs 3, 4 and 6. Further the Report is not subject to any prior or indicated claim of privilege.

[11] It was said that whilst the Employer has previously refused to produce the Report on the grounds that it is confidential, it is in the interests of the administration of justice and for the proper and full information of the Commission that the Report, to which Jayex refers to and relies upon in the filed F73 and purports to have been relied upon in taking alleged remedial action, be disclosed. The Applicants submit that to purport to rely upon the Report and actions allegedly taken in response and yet fail or refuse to produce the Report is inconsistent, unfair and unsustainable. The Applicants referred to the decision in APESMA v Airly Coal Pty Ltd PR962479 from [14], the Australian Industrial Relations Commission (as it then was), where the issue of production of documents was addressed. Lawler VP referred to the West Australian Court of Appeal decision in Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, which has been regularly referred to and adopted in subsequent similar matters. The Court stated at page 379E:

"The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail - "[T]he risk to the confidentiality of the information must be tolerated in the interests of the administration of justice", per King CJ in Alliance Petroleum Australia NL v The Australian Gas Light Company (supra), at 239, and see a/so at 238-239."

[12] The Applicants also submitted that it is in the interests of the administration of justice that the Commission be apprised of what aspects of the Applicant's complaints were investigated, whether the investigation was sufficiently comprehensive and thorough, the evidence gathered by the investigation, the findings and recommendations of the Report and the extent to which the named persons and Employer have responded to the Report findings and implemented its recommendations (or not). Further, it was said the Report findings may assist the Commission in formulating appropriate orders and directions in order to stop the alleged bullying from occurring in the workplace.

[13] The Applicants also referred to the decision in the APESMA case also referring to a decision in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, in which a respondent resisted inspection on the grounds of commercial confidentiality. The Applicants refer to page 38 of that judgment, where Hayne JA, in whose judgment Winneke P and Phillips JA agreed, said (emphasis added):

"Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise."

[14] The Applicants submitted that the proviso that the documents sought may only be used for the purposes of the litigation concerned should be sufficient protection for the employer principal and the persons named. The Applicant say the documents sought do not have any other commercial value or relevance.

[15] The Applicants also referred to the representative of the Employer having previously suggested preparedness to disclose the Report to the Applicant's representatives on the basis that they do not provide or otherwise allow the Report to be viewed by the Applicant. It is submitted that in the circumstances of this Application and the matters pleaded, such a restriction on disclosure would be unworkable and defeat the purpose of disclosure. The Applicants rely on a decision in Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 (SAGA), where Perry J said the following, in relation to balancing confidentiality with disclosure, at page 21 of the judgment (emphasis added):

"I have some difficulty in the suggestion that there can be degrees of confidentiality for this purpose. It seems to me that the weight of authority is overwhelmingly in favour of the view that however vigorously the claim for confidentiality is put forward, such a claim cannot amount to a ground upon which to strike out a subpoena. as opposed to affording a basis for the imposition of restrictions upon the use which may be made of documents once they are produced."

[16] The Applicants again referred to the decision in the APESMA case further quoted from the Mobil Australia decision at page 38 that (Court's emphasis):

"Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants' individual interests. She did, however, accept that, although standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor.

Her Honour fully recognised the appellant's interest in the preservation of confidentiality. The provisions which she made to ensure the maintenance of that confidentiality, so far as reasonably practicable, were detailed, and there has been no suggestion to us that any additional provision should be made in this regard. We are not persuaded that her Honour was in error in her approach to the issue of confidentiality."

[17] The Applicants submitted that with the appropriate supplementary orders to ensure maintenance of confidentiality, it is in the interests of justice and for the proper information of the Commission that disclosure be ordered of the Report.

[18] The Applicants said on the additional consideration of oppression, that it would not be "seriously and unfairly burdensome, prejudicial or damaging" and/ or "productive of serious and unjustified trouble and harassment" (as referred to in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411, approved in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90, Beaumont J at pp 102- 103) for the Report to be produced.

[19] The representative of the Employer and named persons contended that the Commission should refuse to grant the application for the production of the Report on the basis that it is confidential in nature.

[20] Further it was said that the Report was commissioned by Jayex on the basis that it would be confidential, stating that this is evident by the ‘PRIVATE AND CONFIDENTIAL’ mark that appears on the bottom of each page of the Report. In addition to this, it was said that the employees of Jayex who are named as witnesses in the Report, gave evidence on the basis that it would remain confidential. Although witnesses are not formally identified in the Report, they are easily identifiable due to the content of their interviews reproduced in the Report. If the Report was to be disclosed, there is a risk that it would undermine the confidence of employees of Jayex have in regards to workplace investigations and complaint procedures of Jayex, as employees who gave evidence did so under the assurance of confidentiality.

[21] It was submitted that the Report should be considered confidential in its entirety, and that witnesses’ evidence in the Report cannot be protected by redaction of the Report, or orders made for non-disclosure of parts of the Report containing the evidence. It was further submitted that the majority of the independent recommendations and conclusions the Investigator draws are based on and refer to the evidence of the witnesses, and that due to the nature of the witnesses evidence it is not possible for the confidentiality of the statements to be preserved by orders being made for non-disclosure of only the parts of the report containing the evidence.

[22] The representative of the Employer and named persons stated that if the Report was disclosed, it would create a risk of disclosure to the Jayex workforce. If the Report was disclosed, this would have the potential to undermine the continuing employment of the Applicants within the Jayex workforce, and the continuing investigation of Jayex in relation to the allegations.

The Minutes

[23] The Applicants said the Form F73 Response refers to the provision of the Report to the Board at a Board Meeting of 22 July 2016; and the Board presumably minute the Report, discussed it and passed motions or directions for action as a result of that tabling of the Report. It was submitted that the Minutes are not subject to any prior or indicated claim of privilege.

[24] The Applicants submitted that whilst the Employer Principal and named persons have previously refused to produce the Minutes on the grounds that they are confidential, it is in the interests of the administration of justice and for the proper and full information of the Commission that the Minutes, which refer to and record actions in response to the Report, be disclosed. It was submitted that to purport to submit in the Form F73 Response that the Report was received and reviewed at a Board Meeting and that actions were taken without producing the associated Minutes on the ground of confidentiality only is unjust, unfair and unsustainable. The Applicants further relied upon its submission for disclosure, with appropriate protections.

[25] The Applicants also submitted that production of the minutes would not be oppressive and refer to the decision of Beaumont J in the Arnotts case.

[26] In relation to the production of the Board Minutes the Employers submission on 2 September 2016 objected on the ground that they are ‘inherently confidential’, and hold sensitive information that the Respondent does not want disclosed to the public or their competitors. The Respondent submitted that the Board Minutes contain information that is highly sensitive to the Respondent, and are commercially sensitive, and have the ability to affect their performance as a publically listed company, and therefore any direction to produce would be inappropriate.

[27] However in its submission in response to the filed Form F52 applications, the Employer did not oppose the production of the Board Minutes to the extent that they are not covered by legal privilege.

The Correspondence

[28] The Applicants submitted that the Form F73 Response refers to certain actions being taken and directions being issued to certain named persons and other persons in the workplace consequent upon the receipt of the Report and its consideration at the Board meeting of 22 July 2016, as recorded in the Minutes. Such actions and directions were presumably provided to those persons by way of communication covered by the collective term of Correspondence.

[29] The Applicants said that the Correspondence is not subject to any prior or indicated claim of privilege, although the Employer and named person’s representative has denied the existence of such documentation, which the Applicant considers implausible.

[30] The Applicants submitted that whilst the representative of the Employer and named persons have previously refused to produce the Correspondence on the grounds that such documentation does not exist, it is in the interests of the administration of justice and for the proper and full information of the Commission that the Employer and named persons be compelled to make a full and proper search for such documentation and to produce same. The Applicants further rely upon the earlier submissions for disclosure with appropriate protections. The Applicants repeated the submission made for the purposes of the other matters concerning oppression.

CONSIDERATION

[31] In considering whether the application for the Orders to produce should be granted, the test rests on an assessment of the relevance of the documentation for which the interlocutory order for production is being sought. 2

[32] The Commissions discretion as to whether to grant an order for the production of documents was discussed by Justice Munro in the Clerks (Alco) case 3 where it was held that:

“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. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate. 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.

……..

“The judgement required 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.”

[33] Having considered the competing submissions I am satisfied that it is appropriate to make the three orders sought, as the documents sought are capable of being relevant to an issue that might legitimately arise in the hearing of the matters.

[34] I am satisfied the concerns going to confidentiality can be largely overcome by including as part of orders a requirement that the Applicant undertake to the Employer and other named persons an undertaking concerning the use of the documents being limited to the Fair Work Commission proceedings and not otherwise published, distributed or shown to anyone else other than the Applicants legal representative.

[35] To the extent that these concerns regarding confidentiality cannot be entirely overcome as the content of statements made or information provided by certain persons to the report investigator may become known to the Applicants, the interests of justice weigh in favour of the disclosure of the report being ordered. I hold the same view in regard to the minutes and other correspondence sought.

[36] The supplementary orders will be to the effect that the production of the documents sought is subject to the documents only being produced to the Applicants and their legal representatives, and further that the documents sought may only be used for the purposes of the s.789FC applications.

COMMISSIONER

 1   Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19]; APESMA v Airly Coal Pty Ltd PR962479 at [12].

 2   Clermont Coal Operations Pty Ltd T/A Clermont Open Cut v Brown, Troy Daniel & Dews, Campbell Ernest and Others [2015] FWCFB 2460.

 3   Pint H2892.

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