DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters’ Union of Australia
v
Emergency Services Telecommunications Authority T/A ESTA
(C2018/4729)

Alleged dispute about any matters arising under the enterprise agreement – request for orders to produce documents – production oppressive – documents in relation to internal industrial deliberations not required – order issued in part.

[1] The United Firefighters’ Union of Australia (UFU) has made an application to the Fair Work Commission (Commission) to deal with a dispute in relation to clauses 27.1 and 27.5 of the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 1 (the 2015 Agreement).

[2] The UFU has sought the issuing of orders with respect to the production of documents from the Emergency Services Telecommunications Authority T/A ESTA (ESTA). ESTA object to the production on various grounds including that the production would be oppressive, that the documents are not relevant, that the documents are sought for an improper purpose and that the documents relate to an internal industrial consideration by ESTA and therefore are shielded from production.

[3] The specific documents sought by the UFU are detailed as an attachment to the submissions it filed in reply to those of ESTA. That attachment amends the schedule of documents initially sought by the UFU. The orders were further, slightly amended during the hearing of the objections. For the ease of reference I have maintained the numbering of each category of documents as in the amended order.

[4] The UFU seeks:

2. Any communication, email, notes, memoranda or other written document (electronic or otherwise) provided by or on behalf of ESTA to all Fire employees of ESTA at BALSECC, in relation to a vote to change Fire employees at BALSECC to a 4 on/ 5 off shift pattern within two months of that vote occurring.

3. Any minutes of any meeting since 1 January 2015 (electronic or otherwise) which record any discussion, deliberations or decision to adopt or promote a 4 on/ 4 off shift pattern for Fire employees working at BALSECC, by the:

a. Members of ESTA; and/or

b. ESTA Executive Leadership Group (howsoever called).

3.A Any corporate plan, or part thereof, prepared by the ESTA Advisory Committee since 1 January 2015 pursuant to s 27 of the Emergency Services Telecommunications Authority Act 2004 to the extent that it records any discussion, deliberations or decision to adopt or promote a 4 on/ 4 off shift pattern for Fire employees working at BALSECC.

3.B Any notes, minutes, records, memoranda or other written document (electronic, or otherwise) produced, sent or received by Clare Anderson comprising or recording any discussion, deliberations or decision to adopt or promote a 4 on/ 4 off shift pattern for Fire employees working at BALSECC.

[5] “BALSECC” is the Ballarat State Emergency Control Centre for ESTA. It is one of three State Emergency Control Centres in Victoria. The history of rosters and other relevant background are contained in a decision made by me in relation to an earlier (but related) dispute at BALSECC 2 (the August decision). I do not repeat that background here but have had regard to that decision as it is relevant to the issue of orders for the production of documents.

[6] It is necessary to set out the provisions of the 2015 Agreement that are the subject of the dispute as notified by the UFU.

[7] Clause 27 of the 2015 Agreement relevantly provides:

27. Workplace Reform

27.1 Where ESTA intends to carry out a substantial change in operations, including:

27.1.1…

27.1.4 substantial variations to shift rosters, total working hours, total number of working days; and/or

27.1.5 rest breaks…

the Employees affected and their Union or other representatives will be advised in writing as soon as practicable…

27.5 The following process will apply for any:

27.5.1 substantial variation to shift rosters, total working hours, total number of working days; and

27.5.2 changes to rest breaks (for the avoidance of doubt this clause does not apply to changes in the timing of rest breaks when unplanned or out of the ordinary operational events necessitate it):

(a) Variation will be by agreement with the majority (50%+1) of Employees affected.

(b) Any proposed variation must give regard to the conditions contained in Clause 12 – Hours of Work and be discussed between the parties, with a view to reaching agreement, prior to being put to a vote.

(c) The process for conducting, returning and counting the ballots shall be agreed between the parties to this Agreement for each ballot…

Background

[8] By way of background the UFU says that prior to 2006 the Fire employees at Ballarat worked a standard roster pattern of two day shifts followed by two afternoon shifts followed by two night shifts followed by four days off.

[9] In about 2006 a vote occurred of the Fire employees at Ballarat in which a majority of employees endorsed a change to the shift pattern to 4 days on followed by 5 days off (4 on/5 off). The UFU says it has no particulars of the circumstances of this vote or the intention of ESTA to implement the change at that time.

[10] In 2016 ESTA sought to end the 4 on/5 off roster and replace it with a 4 on/4 off roster. The UFU says that Ms Clare Anderson, Executive Manager Operations – Ballarat and Fire Services, was the primary architect of that proposal although there were others involved in the decision process including the executive leadership team and possibly the ESTA Board. The UFU says that this amounts to a decision to implement substantial change. Accordingly, this could only be done via the process as identified in clause 27 above. The particulars of that decision have not been disclosed but the UFU says they are relevant to the matters now in dispute.

[11] The UFU submits that the public interest in the due administration of justice includes enabling the parties to properly identify matters which are relevant to the interpretation and application of clause 27 of the 2015 Agreement.

Relevance

[12] The UFU submits that the documents sought are relevant to the matters the Commission will be required to decide.

[13] ESTA says that the dispute before the Commission (although it does not concede it is properly before the Commission) can only be about events that have occurred since the commencement of the 2015 Agreement on 14 April 2016. For this reason it says that documents that relate to 2006 and through to the commencement of the 2015 Agreement are not relevant to the matter before the Commission. Further, it says that the documents in category 3 are no more than a fishing expedition and an attempt not to obtain evidence to support a case but to see if it has a case.

Oppressive nature

[14] The UFU says that the production of documents it seeks is not “seriously and unfairly burdensome, prejudicial or damaging.”

[15] The UFU rejects the submissions of ESTA that the documents are in a form that is not readily searchable. Further, it says that the evidence of Ms Anderson as to the storage and retrieval capacity, time and cost should be given little weight as it is hearsay. The UFU submits that there was no reason those with direct knowledge of the storage and retrieval of the material could not have been called to give evidence as to such matters.

[16] The UFU says that it has substantially narrowed the scope of the categories of documents it seeks. It now limits the documents in category 2 to one month either side of the 2006 vote. It says that the time of that vote should be readily identifiable to ESTA.

[17] As to the documents in category 3, 3A and 3B, the UFU says that category 3 is targeted at the minutes of meetings of groups identified by Ms Anderson in her evidence in the hearing in relation to the August decision as being part of the strategy leading to the promotion of the 4 on/4 off roster proposal.

[18] Category 3A is limited to the corporate plan or part thereof prepared by the ESTA Advisory Committee in relation to discussions etc. promoting the 4 on/4 off roster. Such corporate plans are required by the nominated legislation.

[19] Category 3B reflects what was described by ESTA as “less unreasonable” than the initial proposal and therefore could not be oppressive.

[20] ESTA submits that the categories of documents sought by the UFU are very broad covering not just an extensive period of time but every form of written document. It relies of the witness statement and evidence of Ms Anderson with respect to the time and cost impost of such an exercise. ESTA says that the oppressive nature of the order sought is compounded by the lack of relevance.

Industrial deliberations

[21] Whilst the UFU recognise that some of the documents sought may go to the internal industrial deliberations of ESTA, it submits that this is not grounds alone to protect documents from production. It says that in the Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award 1985³ (Clerks (Alcoa)) Munro J said that such a consideration needed to be balanced against the potential relevance of the evidence to issues of fact that might arise during proceedings. In this matter it says that clause 27 of the 2015 Agreement is premised upon the existence of the intention of ESTA. The identification of that intention is centrally relevant to the resolution of the dispute.

[22] ESTA says that some of the documents sought by the UFU (in category 3) go to the internal industrial deliberations of ESTA. It says that, even if such documents were relevant, the long standing practice of the Commission’s predecessors has been not to require production of such documents (see Clerks (Alcoa) case).

[23] ESTA submits that there is no doubt as to its intention. It says these were made clear in ESTA communications to staff at the time of the 2016 consultation.  4 It submits that if the UFU is seeking the material for the purpose of considering further the dispute in relation to the fire dispatcher training (subject to the August decision) then the documents sought are for an improper purpose.

[24] ESTA says that, in the circumstances where the UFU has been provided with extensive material about its intentions then there is little utility in granting the order with respect to category 3.

[25] I accept that the same reasoning may apply to the documents in category 2 to the extent that they go to the industrial considerations of ESTA.

Consideration

[26] I accept that the correct approach to considering the issue of an order for production of documents is as set out in the Clerks (Alcoa) case. The relevant considerations can be summarised as:

•  The documents sought must be reasonably well particularised;

•  The documents must be of a nature capable of being relevant tot matter at issue in the proceedings;

•  A party should not be required to produce documents if to do so would be oppressive;

•  A party should not be required to produce documents where the demand is a fishing expedition;

•  The judgement as to whether to issue the order requires a balance of reasonableness of the burden imposed and the invasion of private rights against the public interest in the administration of justice and in ensuring all material relevant to the issues is available to the parties to enable them to advance their case.

[27] Further, I accept that the power to issue an order for production is a discretionary power of the Commission and that there is no absolute right of parties to the documents.

[28] In making my decision below I have taken into account the submissions of the parties and the evidence of Ms Anderson.

[29] Whilst I accept that Ms Anderson has provided the best evidence available to her, it weighs against acceptance of the submissions of ESTA that it did not call as a witness Mr Alan Shepherd or any other person with direct knowledge of the archiving and accessibility of materials by ESTA. Where ESTA rely on a claim that it would be unduly oppressive to be required to produce some of the documents a witness who could attest directly to this would have been of assistance to the Commission. However, this criticism of the evidence of Ms Anderson must be balanced against the haste by which this matter was called on so as to allow the dispute proper to be dealt with in a timely manner. Further, I accept that the Commission is not bound by the rules of evidence although these are relevant and not to be ignored. I have dealt with this evidence further below.

Category 2

[30] The UFU submits that resolving the dispute as to whether the change in rosters proposed by ESTA (from the current 4 on/5 off roster to a 4 on/4 off roster) is substantial will require the Commission to consider that change against a benchmark. The 4 on/5 off roster was introduced by vote in 2006 under provisions not dissimilar to clause 27 in the 2015 Agreement. The UFU submits that the representations made to employees and what they were voting for in 2006 is relevant to identifying that benchmark.

[31] Further, the UFU says that the provisions of the earlier agreement in operation in 2006 and the vote conducted in 2006 would have been known to the parties and may be a relevant objective background fact which informed the negotiation of subsequent agreements including the 2015 Agreement. The UFU has been involved in all of those negotiations. Material surrounding the 2006 vote is therefore relevant in informing the construction of the 2015 Agreement.

[32] The UFU said, in its written submissions, that the material it seeks in category 2 is that for one month either side of the 2006 vote although in oral submission suggested it is for the period two months either side of the 2006 vote.

[33] ESTA, in its submissions, complains that the documents sought in relation to the vote in 2006 cannot be relevant to the resolution of the current dispute and that the order is oppressive in terms of the cost and time it would take to produce the documents sought. It relies on the evidence of Ms Anderson in this regard. ESTA submits that the oppressive nature of such an order is particularly so in circumstances where no one appears to be able to identify when the vote occurred. This is compounded by an archiving system which seems to lack adequate identification.

[34] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd 5 Cowdry J usefully summarised dicta in relation to the phrase “reasonably likely” for the purpose of determining if an order to produce should be set aside. He found that:

[20] Accordingly, for the court to be satisfied that the documents should be produced, it must be ‘reasonably likely’ that the documents will be relevant to issues arising concerning the dismissal… If they are, no question of abuse of process…can arise.

[35] I am satisfied that the documents sought under category 2 may be reasonably likely to be relevant to the question of the interpretation of clause 27 of the 2015 Agreement in that they will provide some of the objective background facts to the 2015 Agreement that may assist in its interpretation. To this extent ESTA’s submission that matters that occurred prior to the making of the 2015 Agreement are not relevant to this extent must be rejected. I would comment however that at this stage it is not apparent that there is any dispute as to the meaning of clause 27 but rather the dispute appears to go to its application, that is, can the events with respect to the fire roster since 2016 be categorised a “substantial change” as this is used in clause 27.

[36] I am satisfied that the documents sought are reasonably likely to be relevant to the matter of the benchmark that the UFU says must be established by way of the 2006 vote to change the roster. Whilst I am not convinced that such a benchmark must be established that is a matter to be determined at hearing the application and not a matter for now. However, I am not convinced that ESTA’s intention in introducing a 4 on/5 off in 2006 is relevant to any determination of whether ESTA’s current intention is to introduce substantial change.

[37] I accept that the retrieval of documents from 2006 may be laborious, costly and time consuming. This is particularly so in circumstances where archived material is difficult to access and difficult to “read” because of changes in technology. Whilst the evidence before me does not allow me to draw firm conclusions as to the extent of the difficulty that may be experienced by ESTA should I issue the order, the information sought by the UFU is over 12 years old and this age alone can be inferred to introduce difficulties.

[38] In McIlwain v Ramsey Food Packaging Pty Ltd and Others 6 Greenwood J summarised the issue of the oppressive nature of a subpoena as:

The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be “seriously unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”. 7

[Footnotes omitted]

[39] The order with respect to category 2, in its current form, is so broad both in the period covered (the 12 months of 2006 must be searched) and the information sought (any communication, email, notes, memoranda or other written documents for an undefined two month period in 2006) that I am satisfied that it would be oppressive. An extensive search would be required through 12 year old material before any documents could be produced. In reaching this conclusion I have had some regard to the evidence of Ms Anderson. I accept her evidence as the truth of what was relayed to her by others. Ms Anderson was honest and forthright in giving her evidence. Whilst I cannot know with any degree of certainty how well such circumstances as conveyed to Ms Anderson might stand up under scrutiny, I am prepared to accept for the purposes of determining this matter, that there is some basis to the concerns expressed by ESTA.

[40] I have carefully weighed up the relevance of the documents against the oppressive nature of such an order and have decided that the order should not be issued in relation to this category. I accept that to require ESTA to comply with such an order would be “unfairly burdensome” on ESTA.

[41] It is open to the UFU to attempt to narrow the scope of the documents sought or the time period covered and seek a further order if it so wishes. I would encourage the parties to further confer to see if some satisfactory resolution can be found (such as a statement of agreed facts) such that an order is no longer necessary or can be better accommodated.

Category 3, 3A and 3B

[42] The UFU says that in or about 2016 ESTA decided to implement a 4 on/4 off roster with respect to Fire employees. It says that the nature of ESTA’s intention is “of central relevance” to the dispute currently before the Commission. It further submits that, unless ESTA concedes a current intention to make a “substantial” change, the nature of the intention remains an issue in dispute.

[43] The UFU says that while the scope of the documents in this category may pre-date the 2015 Agreement, those documents may still go to the intention of ESTA in seeking to change the roster in 2016 and are therefore relevant.

[44] ESTA says that documents should not be required to be produced that go to the internal deliberations of industrial parties (particularly category 3B although it seems to me this could apply equally to category 3).

[45] In Clerks (Alcoa) Munro J said:

The determination of whether a party should be compelled to produce information which may be within its possession must in my view be primarily guided by the considerations referred to by the 1975 National Wage Case Bench when it said:

“This wide-ranging discretion conferred on the Commission is statutory recognition of the complex exigencies which permeate industrial relations. What procedures are fair and reasonable in the handling of a dispute must depend upon the particular mix of factors involved and inevitably calls for the exercise of broad discretion and judgment.”

…There are many instances in Australian practice recognising that participants in industrial relations will be sheltered from compulsory production of information categorised as internal to their deliberations in industrial relations matters…

Against the application of the practice of sheltering the company’s internal industrial relations deliberations in this instance must be balanced the consideration that production is sought to be compelled of what may be evidence relevant to important issues of fact. Findings on the particular facts in issue undoubtedly have relevance to the overall determinations to be made in this case. This circumstance leads me to a question whether this is a case where production of such documents as may be relevant ought be compelled. I have concluded that production should not be compelled. Resolution of the issues of fact as to the company’s attitude toward the FCU and toward the maintenance of award coverage is not essential to the determination of the matters in dispute. 8

[footnotes omitted]

[46] In Amalgamated Metal Workers’ and Shipwrights Union and Others v Electricity Trust of South Australia and Others 9 (AMWSU v ETSA) Brack C of the Australian Conciliation and Arbitration Commission set aside orders to attend and orders to produce documents. The order in that matter was, in part, in the following form:

You are required to bring with you and produce any minutes, books or other documents showing the proceedings of any meetings and the terms of any resolutions passed at any meetings and all other relevant materials in relation to these disputes…

[47] Having set the orders aside for technical reasons and having been advised that the respondents would make good the technical deficiencies in the order, Brack C proceeded to deal with the question of whether the documents should be produced. In so doing he concluded that:

The basis of what Victoria seeks is to try and get behind what the unions show that they are doing, into their reasoning for the actions. It is a probe in an endeavour to see what the unions may have considered in their tactics. The employers want to get into the discussion stages of the unions’ consideration of their course of action, and then the decision making stages, at all levels in the unions presumably, because material from “any meetings” is sought. There is no doubt that Victoria in seeking the material it has, is fishing to get whatever it can and a lot of work would be required before the material could be produced. It would be a burdensome task and one I think I should not require in any event, but particularly having regard to the nature of the request for the material…

It seems to me to be quite unfair to force the chief executive of a union to disclose the reasoning behind a union decision on a course of action, assuming that he has knowledge of the way the various people who made the decision came to their individual conclusion. It is not argued here that the unions are following a course unauthorized by their rules. What Victoria wants is to get into the minds of the decision takers. This is a quite unacceptable course to follow from the point of view of achieving industrial harmony. In forming this viewpoint I see no denial of natural justice to Dr. Jessup's clients.

[48] The UFU says that this general provision of protection of internal industrial deliberations should be balanced against the potential relevance of the material sought. Whilst this is true it cannot be that the determination of relevance trumps the internal industrial considerations of the party. The question of whether the documents should not be produced because they relate to internal industrial considerations only comes about because apparent relevance has been established.

[49] I am satisfied that the documents sought in this category are apparently relevant to the matter to be determined. That the documents may pre-date the making and approval of the 2015 Agreement is not a basis on which to reject or narrow in some way the scope of documents sought. I do not consider that the order however is oppressive. The scope of documents is much more confined and they are of a much later era than the 2006 documents such that any search or technological issues would be different to those in relation to the documents in category 2. It does not appear to me to be unfairly burdensome on ESTA.

[50] I have carefully considered the arguments put to me in relation to the internal industrial considerations of ESTA. I am not convinced that the general approach taken to such material as revealed in Clerks (Alcoa) and in AMWSU v ETSA should be disturbed.

[51] To the extent that category 3 and 3B documents go to the internal industrial considerations of ESTA I do not consider that they warrant production. It must be that an industrial party can have its internal debates and discussions and disagreement prior to reaching a concluded view as to what it wants to do and why. Similarly to the observation of Brack C, it appears that what the UFU seeks is to get into the discussion stages of ESTA’s deliberations. The matter at issue in the dispute is if ESTA intended to introduce a significant change in the rosters and rest breaks. Notes, minutes, records etc. in relation to the decision itself are enough. I do not consider that much will be added if the internal industrial deliberations of ESTA are somehow revealed. It seems to me that the relevant material relates to the decision of ESTA and what its intentions were in making its decision to go down a certain path. The internal industrial deliberations may encompass more (they may not) but I am not satisfied in this case that such material is warranted. I do not consider that the UFU will be prejudiced in running its case if such documents are excluded.

[52] Any of the documents in category 3 and 3B that go to such deliberations of ESTA are therefore excluded from the order. It is not apparent that any of the documents in category 3A (corporate plan) would include such considerations such that the exclusion need be applied to that category.

[53] I should add that care needs to be taken in narrowing the issues in dispute, or classifying the matter of “central importance,” to being limited in some way only to ESTA’s intention. As I understand the dispute and the relevant clause it also entails the significance of the change being proposed by ESTA. What this all means is, of course, a matter for hearing.

Conclusion

[54] An order reflecting this decision will be issued in conjunction with this decision.

[55] On the basis of the submissions of ESTA and my decision above the documents will be returnable on Tuesday 18 December 2018.

COMMISSIONER

Appearances:

E. White, of counsel, for the Applicant.

B. Avallone, of counsel, for the Respondent.

Hearing details:

2018.

Melbourne:

December 4.

Printed by authority of the Commonwealth Government Printer

<PR702956>

 1   AE418496.

 2   [2018] FWC 4351.

3 Print H2892.

 4   [2018] FWC 4351 at [50] is the advice to staff as to what ESTA intended to do should the Fire employees not agree to the roster change.

 5   [2011] FCA 181.

 6   (2005) 221 ALR 785.

 7   Ibid, [35](m).

 8   Print H2892, p. 4.

 9   (1980) 241 CAR 570.