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Workplace Relations Act 1996
s.99 notification of an industrial dispute - Log of claims

Association of Professional Engineers, Scientists and Managers, Australia, The


Airly Coal Pty Ltd

Coal industry




Summonses to produce documents – application to set aside summons - confidentiality – abuse of process


[1] This is an application to set aside three summonses for the production of documents issued at the request of the Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”). The summonses are directed to BHP Coal Pty Ltd (“BHPC”), Minerals & Energy Resources Conference Incorporated (“MEHRC”) and McDonald & Company (Australasia) Pty Ltd (“McDonald”).

[2] I announced my conclusion on 12 September 2005. These are the reasons for that conclusion.

[3] The summonses were served in the context of a notification of dispute pursuant to s.99 of the Workplace Relations Act 1996 (“the Act”). A dispute is said to exist based on the service of a log of claim on, and non-acceptance by, a number of employers in the coal industry. APESMA seeks a finding of dispute. A number of respondents challenge the jurisdiction of the Commission to deal with the dispute and contend that the service and non-acceptance of the log has not given rise to an “industrial dispute” within the meaning of s.4(1) of the Act. That matter is listed for hearing on 15 and 16 September 2005.

[4] BHPC is the holding company for one or more of the respondents to the log. MEHRC is an industry body of which BHPC is a member. McDonald operates a remuneration and human resources consultancy business. MERHC and McDonald were granted leave to intervene to challenge the summonses.

[5] APESMA had previously served a log of claims on the respondents (or most of them). In a decision dated 16 December 20041 Commissioner Bacon refused to find that the service and non-acceptance of that earlier log gave rise to an “industrial dispute” within the meaning of s.4(1) of the Act. One of the bases for that decision was a finding that the minimum wage claims in the log were fanciful and thus that the service of the log did not give rise to a “genuine dispute” as required by the authorities. Commissioner Bacon stated:

[6] The present log represents APESMA’s second attempt to generate a dispute with the respondents. APESMA, in response to the comments of Commission Bacon, on this occasion will seek to lead evidence as to the market rates for staff in the coal industry.

[7] The summons to BHPC2 requires the production of the following documents.

[8] I shall refer to the document described in item 1 as the MEHRC Report and the document described in item 2 as the McDonald Report (together, “the reports”). The schedule to the summons to MEHRC3 is in the same terms as item 2. The schedule to the summons to McDonald4 is in the same terms as item 1. APESMA contends that the two reports referred to in items 1 and 2 will afford evidence of the market rates of remuneration for staff in the coal industry in respect of positions over which APESMA has constitutional coverage.

[9] BHPC and MEHRC relied upon affidavits of Christopher Henry Jury and Adam Gary Rice. McDonald relied upon affidavits of Stephen Peter McDonald and Corlia Roos. APESMA did not object to the tender of these affidavits and did not require any of the deponents for cross-examination.

[10] The affidavit evidence establishes that:

[11] In addition to the prejudice identified above, Mr Dixon SC also submitted that the respondents who subscribe to either of the reports will be prejudiced in the conduct of the proceedings because their continuing obligations of confidentiality will prevent or hinder their full reliance on the report should it be admitted into evidence.

Relevant Principles

[12] The power of the Commission to issue a summons for the production of documents derives from s.111(1)(s) of the Act. In exercising its discretion to issue a summons or in respect of an application to set aside a summons, the Commission will generally be guided by the principles applied by the Courts although the Commission retains a broad discretion to decline to issue a summons or to vary or revoke the order constituted by a summons. The position was summarised by Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:5

[13] There are distinct stages by which a party comes to inspect documents produced pursuant to a summons or subpoena. In National Employers’ Mutual General Insurance Association Ltd v Waind and Hill6 Moffitt P identified three steps:7

[14] Ordinarily, issues of confidentiality are relevant to the inspection stage, although this is not universally so8 and confidentiality can be relevant to whether production ought be required. The principles in relation to confidentiality as a ground for resisting compliance with a subpoena were considered by the West Australian Court of Appeal in Apache Northwest Pty Ltd v Western Power Corporation: 9

[15] Apache Northwest has been applied in a number of decisions of single judges of the Federal Court.11

[16] In Trade Practices Commission v Arnotts Limited,12 Beaumont J was concerned with a challenge to a subpoena issued to a third party, Mattingly. His Honour stated:13

[17] That passage has been applied on a number of occasions.14

[18] While the Commission is not a court, undoubtedly it may exercise its general discretion as to its procedure (s.110(2)) in conjunction with the specific discretionary powers in s.111(1)(d),(f), (s) and (t) to prevent an abuse of process of the sort described in passage from Hamilton v Oades set out above.


[19] While I have not yet required BHPC, MEHRC or McDonald to produce the reports, I made it clear during argument that I was considering both the issue of production and the issue of inspection in relation to the reports.

[20] I am satisfied that APESMA has established legitimate forensic purpose in seeking production of the documents. In the light of the comments of Bacon C in his decision refusing to find a dispute based on the service and non-acceptance of the earlier log, APESMA has demonstrated that the reports satisfy the test of apparent relevance. The reports include information as to the market rates of remuneration for staff employees in the coal industry. It is strongly arguable that the market rates payable to staff in the coal industry is relevant to an assessment as to whether the wage claims in the log are fanciful or might be achieved over time by negotiation or conciliation.15 It was submitted that the reports are difficult to interpret and may be confusing or misleading if produced without explanation. This is a matter that goes to weight rather than relevance. In any event, a sample from the McDonald report16 appears to be straightforward in its interpretation.

[21] On the other hand, I am satisfied on the evidence that MHERC and McDonald are likely to suffer serious and irreparable harm if the confidentiality of the MHERC Report and the McDonald Report is not appropriately maintained. In particular, I am satisfied that MHERC, McDonald and others will be seriously prejudiced if APESMA is given unrestricted access to either of the reports.

[22] As noted, confidentiality is not a ‘stand alone’ ground for setting aside a subpoena. Confidentiality may be relevant, along with the other usual factors, for setting aside a subpoena on the ground of oppression. However, none of the usual factors are present in this case. The summonses are narrow and identify the reports with precision. There is no question of the schedules in the summonses being vague or difficult to interpret or of compliance with the summonses placing an unreasonable burden on the recipients.

[23] Confidentiality, and the adverse impact on third parties arising from compliance with a summons, may also enliven the discretion to set aside a summons, technically a discretion to vary or revoke the order constituted by the summons, in order to prevent an abuse of process in line with the principles discussed in Hamilton v Oades. The courts typically respond to concerns as to confidentiality by imposing limits on inspection. In my view, the legitimate concerns of BHPC, MEHRC and McDonald can properly be addressed by a regime that strictly limits inspection and preserves confidentiality. In the light of the regime I have determined, I am not satisfied that production and, possibly, inspection in accordance with that regime will be seriously and unfairly burdensome, prejudicial or damaging to BHPC, MEHRC, McDonald or others or will be productive of serious and unjustified trouble and harassment.

[24] In balancing the burden imposed upon the recipients of the summonses and the invasion of their private rights on the one hand with the public interest in the due administration of justice (and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases) on the other, I have taken account of the fact that APESMA has already filed evidence going to the market rates for staff in the coal industry. In particular, APESMA had relied upon its own survey reports (which it markets commercially) and upon several certified agreements. It was submitted that APESMA could have issued summonses directly to individual respondents requiring the production of documents showing the actual remuneration paid to staff employees of the objectors. It was submitted, in effect, that APESMA did not need the information in the reports and that the prejudice to the MEHRC, McDonald and others substantially outweighed the doubtful benefit to APESMA in having access to additional evidence on this topic that the reports constituted. The problem with this argument is that the response of the objectors to the evidence already filed by APESMA (and to any evidence of rates paid by particular respondents) is, as yet, uncertain. It is conceivable that the objectors may substantially undermine the probative value of that evidence. It is conceivable that the reports sought through the summonses could be the difference between APESMA establishing or failing to establish that its demands are genuine.

[25] Balancing the interests of APESMA against the interests of the recipients and others said to be adversely affected by the disclosure of the reports I have concluded that confidentiality should be assured at present by refusing inspection until the nature and quality of the attack on APESMA’s existing evidence is known and thus whether there is a significant prospect that the evidence afforded by the reports could be the difference between APESMA establishing the existence of a “genuine dispute” or not.

[26] In the exercise of my discretion I have determined that I should require production of the documents but I will not permit inspection at this stage. The documents should be produced at the commencement of the hearing on Thursday 15 September 2005 and should be produced in their original form and in an expurgated form. The expurgated form of the documents will omit all material that does not relate to the salary, remuneration or conditions of staff in the coal industry in respect of which APESMA has constitutional coverage, or is necessary to make sense of such material. The documents should be produced in a sealed envelope. The sealed envelopes will be stored in a safe while they are in the custody of the Commission. They will be returned to the producing parties at the conclusion of the hearing or any appeal.

[27] I reserve leave to APESMA to seek inspection of the reports during the hearing in the light of evidence led, and submissions made, by the objectors in response to the other evidence led by APESMA as to market remuneration of staff in the coal industry. I will hear further argument at that time in relation to any residual prejudice said to accrue to BHPC or other respondents in dealing with the reports on account of the continuing obligations of confidentiality on those parties. At this stage, not having myself inspected the reports, I am unable to see how those continuing obligations will materially prejudice BHPC or other respondents in dealing with reports.

[28] In the event that inspection is permitted it will be on strict terms as to confidentiality. In that event, access will be permitted only to counsel for APESMA. A single copy of the expurgated version of the reports will be made available to counsel for APESMA on his undertaking not to disclose the contents of the reports to any person, not to make any further copies and to return his copy of the reports at the conclusion of the hearing. I will compare the original and expurgated versions to ascertain that relevant material has not been expurgated. Given that APESMA produces and markets its own survey report as to remuneration in the coal industry it would be inappropriate for the reports to be inspected by an officer of APESMA. This ought not be taken as in any way reflecting adversely on Ms Bolger, the officer of APESMA who will be instructing counsel. In relation to the confidentiality asserted by BHPC, MEHRC and McDonald, the perception of employers who provide information to MEHRC and McDonald on the basis that it will be kept confidential is important. I can well understand that those employers would have reasonable concerns if an officer of APESMA was permitted to view the reports. On the other hand, those employers ought have no concerns that counsel would breach an undertaking as to confidentiality. In the event that inspection is permitted and counsel for APESMA is successful in tendering the reports into evidence, they will be marked as a confidential exhibit and any submissions in relation to the reports will be made confidential.



Mr I Taylor of Counsel for the Association of Professional Engineers, Scientists and Managers, Australia
Mr H Dixon of Senior Counsel for BHP Coal Pty Ltd, Minerals and Energy Human Resources Conference Incorporated and others
Mr T Caspersz of Counsel for McDonald & Company (Australasia) Pty Limited
Mr A Longland of Freehills, solicitors, for Rio Tinto
Mr G Gillespie of Gillespie Consulting Services Pty Limited for Jellinbah Mining Pty Ltd and others.
Hearing details:
September 9

Printed by authority of the Commonwealth Government Printer

<Price code C>

1 PR951995

2 Ex E

3 Ex F

4 Ex G

5 Print H2892 at p 2

6 (1978) 1 NSWLR 372

7 At p381

8 Bright v Femcare Ltd [2000] FCA 1344 (Lehane J) at para [11]

9 (1998) 19 WAR 350 (Kennedy, Pidgeon and Franklyn JJ) at p 379E

10 Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 (SACA)

11 Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (Stone J); Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 (Sackville J); Spatialinfo Pty Ltd v Telstra Corp Ltd [2005] FCA 455 (Sundberg J)

12 (1989) 88 ALR 90

13 at pp 102-103

14 See cases cited at footnote 10.

15 In the modern era whether the Commission can only arbitrate awards that constitute a safety net of minimum wages and conditions it is more difficult to show that wage claims that are extravagant but not fanciful might be achieved by arbitration over time.

16 Ex C, Annexure “McD-3”