| FWCFB 2200|
|FAIR WORK COMMISSION|
Esso Australia Pty Ltd
Fair Work Act 2009
s.266 - Industrial action related workplace determination
VICE PRESIDENT CATANZARITI
Application for an order pursuant to s.590(2)(c) for production of documents etc; application granted in part.
 By an amended application dated 5 April 2017, the Australian Workers’ Union (AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing workers Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) seek an order requiring Esso Australia Pty Ltd (Esso), Esso Resources Australia Pty Ltd (Esso Resources) and ExxonMobil Australia Pty Ltd (Exxon) to provide copies of documents or records, to the Fair Work Commission (Commission) pursuant to s.590(2)(c) of the Fair Work Act 2009 (Act).
 Esso and the Unions are currently involved in a proceeding before the Commission being conducted pursuant to s.266 of the Act concerning the making of an industrial action related workplace determination.
 The various categories of documents, records and information to which the order sought relate are set out in the Schedule attached to the draft order filed with the amended application which is in the following terms:
In this Schedule:
"document" or "documents" has the meaning given in the Dictionary to the Evidence Act 1995 (Cth);
“Esso” means Esso Australia Pty Ltd;
“Esso Resources” means Esso Australia Resources Pty Ltd;
“EMA” means ExxonMobil Australia Pty Ltd;
“GBJV” means the Gippsland Basin Joint Venture;
“related body corporate” means a related body corporate within the meaning of the Corporations Act 2001 (Cth).
1. Annual statements (howsoever described) for the 2010/11 to 2015/16 financial years showing the income and expenses, profit and loss, assets and liabilities of the GBJV’s offshore oil and gas operations.
2. Annual statements (howsoever described) for the 2010/11 to 2015/16 financial years showing the income and expenses, profit and loss, assets and liabilities of Esso.
3. Annual statements (howsoever described) for the 2010/11 to 2015/16 financial years showing the income and expenses, profit and loss, assets and liabilities of Esso Resources.
4. Annual statements (howsoever described) for the 2010/11 to 2015/16 financial years showing the income and expenses, profit and loss, assets and liabilities of EMA.
5. In respect of the related party loans identified in EMA’s Annual Report for the period ended 31 December 2015 filed with ASIC on 28 April 2016: the loan agreements and any documents identifying the lender, the borrower, the interest rate or the purpose of the loans.
6. Documents that record or evidence the proposal for the development of the Turrum and Kipper fields including the business case for the development of those fields referred to at  of the Witness Statement of Suzanne Elliott dated 21 March 2017 and filed in this proceeding (the Elliott Statement).
7. Documents that record the total annual take or pay volume of gas contracted by any of Esso, Esso Resources, EMA (or any related body corporate) or the GBJV in the period between 1 January 2011 and 31 December 2016.
8. Documents that record for each of Esso, Esso Resources, EMA (or any related body corporate) or the GBJV, its total annual revenue from the contracted take or pay volume of gas in the period between 1 January 2011 and 31 December 2021.
9. The current gas supply contracts between Esso, Esso Resources, EMA (or any related body corporate) and the following customers: Origin, AGL, Lumo and Orica.
10. Reports, analyses and/or papers prepared by or for Esso, Esso Resources, EMA (or any related body corporate) or the GBJV in the period 1 January 2011 to 31 March 2017 that record any forecasts with respect to:
(a) the volume of oil and gas to be produced by the GBJV in the period to 31 December 2021;
(b) the expected prices to be fetched from the sale of the oil and gas produced by the GBJV in the period to 31 December 2021;
(c) the expected profits from the sale of oil and gas produced by the GBJV in the period to 31 December 2021.
Documents relevant to Esso’s bargaining claims
11. Documents that record Esso’s assessments or assessments made at their behalf or at their request that record or evidence the actual or potential impact of any of Esso’s claims on:
(a) Esso’s, Esso Resources’, EMA’s and/or GBJV’s oil and/or gas production costs, revenues and/or profits; and/or
(b) Esso’s employees’ welfare and/or wages, the welfare of Esso’s employees’ families, and/or occupational health and safety.
12. Documents that record or evidence any plan, proposal or projection by Esso for the implementation of the 14/14 roster following the making of the proposed workplace determination.
13. The current contract between Esso (or any related body corporate) and ESS to provide catering facilities on the offshore oil and gas platforms operated by Esso in Bass Strait.
14. The immediate predecessor to the above contract, whether with ESS or a different catering company.
15. The current “green list” of food items made available by ESS on its menu for the persons employed by Esso to work on the offshore oil and gas platforms in Bass Strait.”
 Esso is opposed to the making of the order on a number of bases, to which we will refer later below.
 Section 590(2) of the Act relevantly provides the following:
(2) [Powers of the FWC to inform itself] Without limiting subsection (1), the FWC may inform itself in the following ways:
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC.
 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, 1 which we adopt without repeating them. It is sufficient to observe that the power under s.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.
 The Unions no longer press for an order to produce documents described in categories 11, 12 and 15 of the Schedule. We deal with the other categories below.
Categories 1- 4
 In essence the documents identified in categories 1 to 4 inclusive are documents which may set out the financial position of Esso, Esso Resources, Exxon and the GBJV. The three companies to which the order sought is to be directed are said to be involved in the offshore oil and gas operations of interest in this proceeding. Esso is the employing entity and operator of assets owned by the GBJV. The GBJV is owned by Esso Resources and BHP Billiton Pty Ltd in equal shares. Esso is a subsidiary of Esso Resources and both are part of the Exxon global group of companies. The documents sought by these categories are said to be relevant for two reasons. First, the Unions say in justifying the roster changes and pay increases Esso proposes, it claims that it has poor profitability and needs to improve, inter alia, its profitability metrics in order to attract investment from its American parent company.
 The Unions also point to the following matters in the evidentiary material filed by Esso on which it intends to rely in the substantive proceeding:
“In Jeffries’ statement, it is stated that without further investment, the Gippsland Basin Joint Venture (GBJV) business operated by Esso is in peril. He says it is currently in a “distressed position” (at ). He suggests that soon the cost of producing oil will exceed revenue (at ). As to the gas operations, he says that revenues are “just enough” to cover costs (at ), yet gas production is falling while costs of production are rising (at ). Even with increased gas prices, he forecasts that revenues will continue to “substantially decline” (at ). He concludes that these changes in the oil and gas businesses “place a significant exposure on Esso’s viability” (at  and again at ,  and ), which can only be met by reducing costs so as to attract further investment from its American parent (at  and ). Yet investment is a “finite resource”, and Esso will need to compete for capital (at ) against other ExxonMobil subsidiaries. With the parent company’s investment budget reduced, “unless the [GBJV business] is at the top of the global range of opportunities for ExxonMobil, it will not get funded” (at ). The cost reductions need to occur “urgently” (at ) as investment decisions are made with long lead-times (see ).” 2
 The Unions say that the documents in these categories are required in order to test these claims.
 The second reason advanced by the Unions in support of an order directed to the documents in categories 1 to 4 is that Esso contends that the Unions’ proposed increases in pay and allowances are excessive. The Unions say that they require the documents identified in these categories to establish that the proposed increases are not excessive, having regard to Esso’s “real financial position”. 3
 Esso says firstly, that the documents identified in categories 1 to 4 were sought in earlier proceedings namely applications by Esso under s.225 of the Act to terminate enterprise agreements after their nominal expiry date. Esso points in particular, to the documents identified in category 10 of the application for an order for production in the earlier proceeding which in terms was as follows:
“Annual and financial reports created in the period from 1 January 2011 to the date of the Order (the relevant period) that record the annual revenue, profits, losses and/or oil and/or gas production costs of any of Esso, Esso Australia Resources Pty Ltd (Esso Resources), ExxonMobil Corporation and/or the Gippsland Basin Joint Venture (GBJV).”
 Esso objected to this, save for the consolidated annual reports of Exxon, on the basis that only annual statements and reports filed were in this consolidated form. 4 Ultimately, only the reports identified above of Exxon were made the subject of the order.5
 Esso previously indicated to the Unions that it files an annual report for the consolidated group only and does not file annual or financial reports for the other named individual entities. 6 The Unions say that the request made in the s.225 application was for the annual financial reports of the corporate entities. They say that the request was made on the assumption that each of the corporate entities in question produced such annual financial reports.7 The Unions say that the present application is framed in order to overcome the apparent absence of formal annual financial reports of the various entities.8
 Esso contends that categories 1 to 4 of the Union’s present application adjusts and expands this category to reflect the fact that the documents the Unions’ seek in this category do not exist in a “report” form, save for Exxon. Esso objects on the basis that the categories lack precision and it would potentially cover an enormous array of documents. 9 It contends that the categories are oppressive and that the categories were rejected in the context of the earlier proceedings and there is no cogent reason why the Commission should adopt a different position in the present application.10 The Unions say that the categories do not lack precision and say the request is focused on annual statement showing specific information and that Esso’s assertion that this category of documents was previously rejected is wrong because this category of documents was not previously sought.11
 In addition, the Unions say that if the categories are all recorded in the one document, then they are still caught by the categories and if they are retained on a computer or in a hard copy, they too are caught. 12
 It seems to us that the documents identified in categories 1 to 4 are relevant to issues that will likely require determination in the substantive proceeding for the reasons identified by the Unions in their submissions, the gist of which we have summarised earlier above. We also accept the Unions’ submission that the documents sought by the categories are not the same as those sought in the earlier proceeding. We accept that in the earlier proceeding the Unions proceeded upon particular assumption as to the manner in which particular financial records are kept and prepared. As was evident in those proceedings, that assumption proved to be misguided. Given that the documents which are identified in categories 1 to 4 are relevant to the matters the Unions have identified, we are not persuaded that they should not be entitled to seek documents which may have some overlap with an earlier request merely because the framing of that earlier request was founded upon a misunderstanding as to the form or manner in which particular records were prepared or kept.
 The issue is therefore whether the categories identify with sufficient particularity the documents which will need to be produced and whether an order requiring their production would be oppressive in the sense of placing an unreasonable burden on the person required to comply. It is apparent on the face of the submissions of Esso and the Unions that each has differing views about the kinds of documents that might fall within the categories. We consider, given the disputed construction of that which would be required to be produced by these categories, greater clarity in the drafting is warranted and we propose to adopt the form of drafting set out in the Unions’ submissions 13 with some slight modification as follow:
“Documents showing or containing annual statements (howsoever described) for each of the 2010/2011 to 2015/16 financial years which show:
(a) the income; and/or
(b) the expenses; and/or
(c) profit and loss; and/or
(d) assets; and/or
of each the entities identified in categories 1 to 4 of Schedule 1 of the draft order.
 We would observe that the definition of “document” or “documents” set out in Schedule 1 of the draft order, which we propose to adopt, carries a wider meaning than merely paper documents.
 We do not regard an order requiring the production of documents identified in categories 1 to 4 as particularly oppressive. It should be observed that we would not expect the production of every single document held by the relevant entity containing, for example annual statements for a requisite financial year showing expenses to be produced. The production of a multiplicity of documents containing the same information is neither helpful nor necessary if one or a few documents will suffice. Ultimately, we would expect that a sensible approach both to the construction of the categories of documents and the production of documents in response would be adopted. That said we do not accept the submission of Esso that the categories sought would catch an enormous array of documents. The categories sought refer to “annual statements” by reference to identified financial years. The number of documents fitting the description is not in our view likely to amount to an enormous array. The categories plainly do not refer to weekly, monthly or quarterly statements and in any event we accept the Unions’ submission that there is no evidence which would support Esso’s contention in this regard. We therefore do not regard a requirement to produce the documents identified in categories 1 to 4 as amended in the manner we propose as oppressive.
 The Unions submit that the category 5 documents are also necessary in order to test Esso’s claim about its poor profitability. 14 They say that the Exxon corporate group declared losses of $96 million before tax and part of the explanation seems to be a loan of $17.5 billion from an undisclosed “related party” and is paying $220 million per annum in interest.15 The Unions wish to investigate whether the “related party loans” relate to the Bass Strait operations and, if they do, whether they are genuine loans made on commercial terms.16 The Unions say that if the loans are un-commercial, they should not come into account in determining the profitability of the Bass Strait operations. The Unions say that the category 5 documents will assist in establishing the true position.17
 Esso objects on the basis of relevance and oppressiveness. 18 It says that the Unions’ submissions reveal the fishing nature of this category and say that it is not the place of the Commission in these proceedings to embark on an exercise of determining whether loans are “un-commercial”.19 Further, it says that the category 5 documents are highly sensitive in nature.20
 We do not propose to make an order requiring the production of documents falling within category 5. We have some sympathy for Esso’s position that a request for production of documents in category 5 amounts to a fishing expedition based on a suspicion and nothing more that the related party loan was made in relation to the Bass Strait operations. It seems to us firstly, that whether the related party loan was made in relation to the Bass Strait operations is a matter that can be taken up with Esso’s witnesses during cross examination. In the event that it is established that the related party loan was made in relation to the Bass Strait operations, the Unions are at liberty at that point to apply to the Commission for an order for production of the documents identified category 5. We will of course require persuading that the documents are relevant. As things presently stand, we see no reason why evidence of the suspected uncommercial nature of the related party loan made in connection with the Bass Strait operations cannot be elicited through cross examination of Esso’s witnesses.
 The Unions submit that the category 6 documents also go to the question of the profitability of the Bass Strait operations. 21 They say that Esso was able to attract $4.5 billion in investment and the Unions wish to see the business case for that investment as they say it will inevitably disclose the criteria regarded as relevant to attract investment, including the level of expected profits required to be demonstrated.22 The Unions also say that it may disclose the weight which Esso’s parent company gives to profitability when making investment decisions, compared to other factors23 and shed some light on Mr Jefferies’ evidence about the challenges for Esso in presenting a business case for capital investment from its global parent.
 Esso opposes an order for the documents sought by this category. First, it says that the documents sought are irrelevant as the KTT Project commenced in 2010 24 and says that documents recording aspects of a business case developed for a discrete project a number of years ago would shed no light on Mr Jeffries’s evidence.25 Secondly, it says documents relating to the criteria used by Exxon to determine the projects in which it will invest have been provided to the Unions pursuant to the earlier order.26 Thirdly, Esso contends that an order directed to the documents in category 6 is oppressive as there would likely be a huge number of documents that record or evidence the proposal for developing the KTT fields.27
 We generally agree with the submissions of Esso in respect of the request for documents identified in category 6. There is firstly likely to be a very large number of documents that record or evidence the development of the Turrum and Kipper fields project, many of which are likely to be of no relevance to the issues that will fall for determination and is in that sense of oppressive. Secondly, even if one or more of the documents produced showed the weight which Exxon gives to profitability when making investment decisions compared to other factors, that would only show the relative weight in relation to the decision to invest in the KTT project made many years ago and is not likely to shed any light on the evidence Mr Jefferies proposes to give about the challenges for Esso in now presenting a business case for capital investment to Exxon. We do not propose to require production of documents identified in category 6 of the draft order.
Category 7 – 9
 The Unions say that the documents sought by these categories are relevant to test Esso’s claim that it suffers from “poor profitability” and that the Unions’ claims are “excessive”. 28 The Unions say that Mr Jeffries’ statement contains data on Esso’s costs of production from Bass Strait, but no dollar figure information on revenue.29 Esso submits that “there is a raft of information in the public arena about volumes of gas that are produced.30 The Unions have indicated that they have been unable to find any revenue data published about the GBJV’s gas production.31
 In addition, the Unions say that Mr Jeffries asserts at  to  of his witness statement that Esso is poorly placed to benefit from the increasing domestic price of gas. The Unions rely on  of Mr Jeffries statement in which he says that the current prices Esso is realising are “substantially below” the spot market price and that in future “Esso cannot expect to command higher prices (at ). 32 The Unions say that these claims can only be tested by inspecting the long term contracts Esso already has in place.33
 Esso says that these categories are in precisely the same form as the corresponding rejecting categories in the earlier proceedings and says that the requested documents are highly confidential. 34 Esso says that Mr Jeffries’ evidence that Esso’s existing long term contract prices are below the spot market gas industry is hardly controversial. Esso says that Mr Grenning’s report filed by the Unions in the earlier proceedings, made the point that prevailing (ie. spot) prices in the domestic market are high and are likely to remain high. Esso says that Mr Grenning was not suggesting that Esso was achieving those high prices under its existing contracts.35
 Esso says that the categories are oppressive on Esso as there would be a huge number of documents that record this information and that the searches required to attempt to comply with it would be extensive. 36
 We do not propose to make orders requiring the production of documents identified in categories 7 to 9 of the draft order, largely for the reasons identified by Esso in its submissions. In addition it seems to us that to the extent that the profitability of Esso or the GBJV will be in issue in the substantive proceeding, documents produced in response to categories 1 to 4 are likely to yield sufficient information for the Unions to deal with that issue. If sufficient relevant documents are not produced in response to categories 1 to 4 then the Unions are at liberty to reapply for an order relating to the kinds of documents identified in categories 7 to 9.
 The Unions contend that the documents sought by these categories are relevant to test Esso’s claim about its financial position and profitability. The Unions say that the category is clear, confined, and the documents sought can be sought without undue difficulty. 37
 Esso objects for the same reasons stated in respect of categories 7-9 discussed above. 38
 The documents which are sought by category 10 of the draft order seem to us to relate to an aspect of Esso’s future financial position and profitability. To that extent documents produced in response to categories 1 to 4 are unlikely to shed any light on this position. It seems to us that such documents are relevant. The scope of the description of documents in category 10 does however seem to us to be very broad in the sense that there are likely to be a large number of reports, analyses or papers prepared by or for the entities therein identified in the period identified. We therefore consider that that which should be produced is the most current or recent of any report, analysis or paper prepared by or for any or each of the identified entities in the identified period recording forecasts in respect of the enumerated subject matter. We do not think that the requirement to produce such documents is oppressive. We are mindful that the information in such documents is likely to be confidential and in that regard we propose to make any access and use by a party to these proceedings of documents produced in response, subject to a confidentiality order along the lines of the order made by Vice President Catanzariti by consent on 24 March 2017.
Category 13 – 14
 The Unions submit that Esso seeks to replace the existing clause prescribing minimum catering standards with an obligation to provide, simple, “market competitive” catering standards. Esso says that the existing clause is too “prescriptive” ( of Ms Suzanne Elliot’s Statement). The Unions say that they are aware that Esso replaced the existing catering contractor with a new provider, ESS. The Unions say that the quality of food and service has decreased suggesting that Esso’s catering has too decreased. 39 The Unions say that the documents are necessary for the Unions to investigate the question of costs, of the existing catering arrangements compared to those proposed.40
 Esso argues that these documents are irrelevant and oppressive in the sense that they would require disclosure of confidential contractual documents. 41 It argues that there is an insufficient basis for an order to produce confidential contractual documentation.42 Esso says that even if the cost of the new contractor were lower than the cost of the old one, this would not tend to prove that the quality of the food or service has declined.43
 We agree with Esso’s submission. Moreover, the terms of any catering contract present or past does not seem to us to speak to whether there should continue to be prescription of a minimum catering standard or some other obligation or no obligation at all.
 For the reasons given above, we propose to make an order requiring the production of documents falling within the reformulated categories 1 to 4 and category 10 of the draft order but not otherwise. An order to that effect is separately issued in PR591983.
 In a rejoinder filed by the Unions on 18 April 2017 the Unions make the following submission:
2. The Applicant’s submissions raise an important question of principle at paragraph 13. Esso there asserts that it is not required to “manipulate and assemble raw electronic data” to create the documents sought. This raises the very important legal question of the Commission’s powers to inform itself under s.590(1).
3. In the interests of ensuring that the Commission has full submissions on this important point, we ask the Commission to receive this short supplementary submission from the Respondents.
4. The Respondents submit that the Commission’s powers under s.590(1) are given in the broadest terms, not limited by the specific examples in sub-section (2). The powers would clearly encompass the power to require a party to configure data held electronically into a meaningful form for presentation to the Commission. That would encompass an order for party to create a document, for the assistance of the Commission. The question is then one of whether the power should be exercised.
5. To inform the exercise of the discretionary power, the Commission would need to know the nature of the data actually held and the form in which it is held, and the difficulty of converting or collating it into the required form for production to the Commission. That would be a matter for evidence to be adduced by the objecting party.
6. In circumstances where Esso does not lead evidence suggesting that creation of the document would be oppressive difficult, and in circumstance where the document is highly relevant to the proceeding, it is clear which way the discretion should be exercised.”
 Whatever else might be said of the submission contained in the rejoinder, we do not think that it is appropriate that we deal with it in the context of this application for the very simple reason that the amended application lodged by the Unions on 5 April 2017 is in terms a request that the Commission exercise its power in s.590(2)(c) of the Act. It provides as Form F52 makes clear that “This is an application to the Fair Work Commission for an order requiring a person to produce documents or records or other information in accordance with s.590 (2)(c) of the Fair Work Act 2009”. The draft order also relies only on s.590(2)(c) of the Act. It is therefore that application with which we deal in this decision. We are not persuaded that we should in this decision explore the breadth of power in s. 590(1) of the Act.
Mr G Borenstein, QC with Mr J Fetter of Counsel for the Unions.
Mr F Parry, QC with Mr R Dalton of Counsel for Esso.
Before Deputy President Gostencnik
Final written submissions:
Esso’s Submissions in opposition of the Unions’ application for production of documents dated 12 April 2017.
Submissions in support of the Unions’ application for production of documents dated 13 April 2017.
Esso’s Reply Submissions dated 18 April 2017.
Union’s Rejoinder Submissions dated 18 April 2017.
1  FWA 8756 at -.
2 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
3 Ibid at .
4 Esso’s Submissions in opposition of the Unions’ application for production of document dated 12 April 2017 at .
5 Order made by Watson VP on 14 October 2016, Schedule at B8.
6 Ibid at .
7 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
9 Esso’s Submissions in opposition of the Unions’ application for production of document dated 12 April 2017 at .
11 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
12 Ibid at .
13 Submissions in support of the Unions' application for production of documents dated 13 April 2017 at .
14 Ibid at .
17 Ibid at .
18 Esso’s Reply Submissions dated 18 April 2017 at .
19 Ibid, Transcript PN77.
20 Transcript PN78.
21 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
24 Esso’s Reply Submissions dated 18 April 2017 at .
26 Order made by Watson VP in 14 October 2016, Schedule at B7.
27 Ibid at , Transcript PN83.
28 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
29 Ibid at .
30 Transcript PN91.
31 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
32 Ibid at .
34 Esso’s Reply Submissions dated 18 April 2017 at .
35 Ibid at .
36 Esso’s Submissions in opposition of the Unions’ application for production of documents dated 12 April 2017 at .
37 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
38 Esso’s Submissions in opposition of the Unions’ application for production of documents dated 12 April 2017 at .
39 Submissions in support of the Unions’ application for production of documents dated 13 April 2017 at .
40 Ibid at .
41 Esso’s in opposition of the Unions’ application for production of documents dated 12 April 2017 at .
42 Esso’s Reply Submissions dated 18 April 2017 at .
43 Ibid at , Transcript PN109.
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