The attached document replaces the document previously issued with the above code on 27 July 2017.

Change to Appearances to reflect that Mr K Watson of Counsel was instructed by Legal Aid Queensland for Ms Loretta Roos, and Mr T Murray, Solicitor of Caxton Legal Centre appeared for Ms Bree Dargan.

[2017] FWC 3737

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Application to deal with contraventions involving dismissal - Objection to Orders issued for Production of documents - Orders Premature - Orders Revoked.

[1] Loretta Roos, Andrew Roos and Bree Dargan made application under section 365 for the Fair Work Commission to deal with general protections applications involving dismissal in accordance with Part 3-1 of the Fair Work Act 2009. The matters were not resolved at conference and applications in all three matters were referred to me for consent arbitration.

[2] On 26 June 2017, the Representative for Loretta Roos made separate applications for Orders requiring production of documents in accordance with s.590(2)(c) by Les Budby and Cecil Brown (the "Applicant" in Federal Court matter QUD380 of 2008), The Barada Barna Aboriginal Corporation and Winnaa Pty Ltd.

[3] On 28 June 2017 the Representative of Ms Bree Dargan made separate application for Orders requiring production of documents in accordance with s.590(2)(c) by The Barada Barna Aboriginal Corporation and Winnaa Pty Ltd.

[4] On the morning of 28 June 2017 I issued five Orders pursuant to s.590(2)(c) as requested, and the Orders required production by noon on 5 July 2017. Later that day in the course of a directions hearing for the substantive application on 28 June, I advised that in the event of objections to the Orders issued, the objections would be heard the following week.

[5] The representative for Winnaa Pty Ltd, (Winnaa) the Respondent in all three of matters C2017/300, C2017/302 and C2017/371 sent correspondence to my chambers advising they intended to object to the orders. On 4 July 2017 I directed correspondence to be sent from my chambers to the parties advising that the requirements to produce the documents as required by the Orders issued on 28 June 2017 be set aside until the objections had been heard and determined.

[6] Later that day the Respondent made an application for an order in the following terms.

"The Orders issued on 28 June 2017 in proceedings C2017/300, C2017/302 and C2017/371 pursuant to section 590(2)(c) of the FW Act to the following persons are revoked;

1. Cecil Brown;
2. The Proper Officer The Barada Barna Aboriginal Corporation; and

[7] It was submitted for Winnaa that the FWC has power to revoke (or vary) the Orders pursuant to section 603(1) of the FW Act.

[8] The grounds for the order sought by Winnaa were that;

1. Some of them compel the parties to act in contempt of the Federal Court;

2. Some of them require production of material that is irrelevant to the facts in issue on these proceedings;

3. They are premature in the circumstances; and

4. Compliance with some of the Orders would be oppressive.

[9] In the proceedings brought by the Applicants it is alleged that the Respondent has contravened s.351 of the Fair Work Act. The Applicants say their employment was terminated because of their "national extraction or social origin". The Respondent has conceded the national extraction or social origin of the Applicants was the reason for their termination, however rely on s.351(2)(b) because they will argue the action was justified because of the inherent requirements of the particular position the Applicants held.

[10] The Respondent will argue the Applicants were terminated because they failed, when asked, to provide sufficient evidence to establish an ancestral connection to the Barada Barna people.

[11] The Respondent says the central considerations for the FWC are;

• (i) Whether the Respondent reasonably concluded (as at August 2016) that there was insufficient evidence available to demonstrate an ancestral connection between the Applicants and the Barada Barna people; and

• (ii) Whether an ancestral connection to the Barada Barna people was an inherent requirement for the role of cultural heritage officer.

[12] The applications for Orders characterised the two main questions for the FWC to answer as being;

• (i) Was it an inherent requirement of the Applicants' Cultural Heritage Field Officer position that the position only be filled by a Barada Barna person?

• (ii) Did the Respondent reasonably believe that the Applicants did not meet that requirement when it dismissed them?

[13] The documents sought to be produced could be broadly categorised as falling into one of three categories;

• (i) Native Title Documents;

• (ii) Board Documents;

• (iii) Employment Documents.

[14] The Respondent submitted that the Native Title Documents were produced for Federal Court proceedings in QUD 380 of 2008 and the matter was resolved without the Native Title Documents being formally received into evidence. The Respondent submitted that documents produced for the purposes of litigation are subject to an implied undertaking and are not to be disclosed without the leave of the Court. The Respondent referred to a decision of the High Court in Hearne v Street [2008] HCA 36.

[15] The Respondent submitted a breach of the implied undertaking may result in a finding of civil contempt, and a release from the implied undertaking is a matter for the Federal Court.

[16] The Applicants took issue with the submission that the Native Title Documents were not formally received into evidence as the decision in the matter makes clear his Honour Dowsett J in [2016] FCA 1271 had regard to the material including the Native Title Documents.

[17] The Applicant's submit the implied undertaking referred to in Hearne v Street is inapplicable as it pertains to the person receiving the document, and not to documents generated by the Applicant in the Federal Court proceedings.

[18] The Applicants clarified they did not seek production of affidavit material filed on behalf of certain respondent parties in the native title claim, but do seek material generated by the Applicant in the native title proceedings and which may be relevant to membership of the Barada Barna Nation.

[19] A supplementary submission was filed by the Respondent following the hearing concerning the objections that pressed that it would be unsafe to assume that materials sought were "received into evidence" given the matter was determined by consent.

[20] The Respondent argued that the Native Title Documents and some of the Board Documents are completely irrelevant to the proceedings. This argument was put on two bases;

• (a) The Orders issued included "All witness statements/affidavits filed in Federal Court matter QUD 380 of 2008" when affidavits were filed in those proceedings which could not have any relevance to the facts in issue concerning whether there was a defence for a contravention of s.351 of the FW Act.

• (b) It is irrelevant to the proceedings before the FWC as to whether the Applicants were in fact members of the Barada Barna Nation, as the task of the FWC is to assess the decision maker's genuinely held beliefs about the inherent requirements of the role - not whether in fact the Applicants met the inherent requirements of the role. Documents produced for the purpose of establishing membership of the Barada Barna Nation are irrelevant.

[21] It was also argued that membership of the Barada Barna Nation is determined and can only be determined by members of the Barada Barna Corporation via a statutory process pursuant to s.150.20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 Cth). The Respondent submits what purpose would there be in the FWC embarking on an exploration of this issue when it has no power to determine the question itself. It was also submitted that it would be an error for the FWC to involve itself in deciding whether the Applicants were members of the Barada Barna Nation and documents sought for the purpose of determining that question are irrelevant both in regard to the Native Title Documents and the Board Documents.

[22] The Applicants argued that the Respondent submission that the matter of determination of membership of the Barada Barna people has been made by members of the Barada Barna Corporation in reliance upon s.150.20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 was wrong because the section only deals with membership of an Aboriginal Corporation, and cannot conclusively determine membership of the Barada Barna Nation. It was also submitted by the Applicant that the Corporations (Aboriginal and Torres Strait Islander) Act 2006 provided power to determine membership based on whether they were an "Aboriginal and Torres Strait Islander person" not membership of a specific Nation.

[23] In supplementary submissions the Respondent submitted s.150-C is a replaceable rule and there must be reference to the relevant Corporations Constitution. The Respondent provided a copy of the rule book of the Barada Barna Aboriginal Corporation which sets out that membership of Barada Barna is open only to persons who are descendants of persons set out in schedule 3 which lists 10 named native title holders. The Respondent's supplementary submission went on to outline other sections of the rule book, and the process it says was followed in determining that the Applicants were not eligible to be members.

[24] In their supplementary submissions the Applicants argued that the purposes of the legislative scheme do not support the Respondent's submission that the Corporations (Aboriginal and Torres Strait Islander) Act 2006 can determine the common law holders of native title or who belongs to a particular tribal group or ancestral line. It was also said that membership is voluntary, and a person does not cease being Barada Barna by virtue of cancellation of their membership of the Corporation.

[25] The Applicants also referred to the decision in Shizas v Commissioner of Police[1] where at paragraph [152] the following was said;

"There may be cases, such as this one, where the evidence suggests that the prospective employee satisfies the inherent requirements of the particular position, despite what the decision-maker may say. In some of those cases the suggestion may support an inference that the decision was not taken for the stated reason".

[26] The Applicants submitted the decision provides support for its argument that the documents should be produced as they are relevant to determine whether certain inferences should be drawn that the decision was not taken for the stated reason.

[27] The Applicants submit it is the Respondent's case that the Applicants did not meet the inherent requirements of the position on the basis that they were not a member of the Barada Barna people and therefore the FWC will be required to decide what the phrase "members of the Barada Barna people" actually means. Therefore the FWC will need to consider the materials subject to the Order, and will need cogent evidence of what the inherent requirements of the Applicants' positions were.

[28] The Respondent has submitted that there is no need to look at potential inferences as it does not contest that it took adverse action against Applicants the for a reason protected by s.351(1). The Respondent has submitted that if the Applicants wish to test whether the decision maker held a genuine belief that the Applicants did not meet the inherent requirements of the particular position when the concession has been made, then the only purpose for seeking to test the genuineness of the decision maker must be to suggest that the decision maker had some other reason. The Respondent submitted if the Applicants intend to plead that the Respondent had some other reason, then it is incumbent on the Applicants to plead that case so that the Respondent is on notice about it given the onus of proof rests with it.

[29] The Respondent also submitted that compliance with the Order to produce the native title documents is oppressive given the exposure to civil contempt and the clearly very large amount of material. The Applicants referred back to their only seeking documents generated by the Applicant in the native title proceedings and which may be relevant as to whether they are members of the Barada Barna Nation.

[30] It was also submitted by the Respondent that the parties to the substantive matter have not yet filed/served evidence or submissions, and this was particularly relevant because Winnaa bears the onus of proof pursuant to s.361 of the Act.

[31] The Respondent submitted it is very likely, in discharging the onus of proof, it will produce many documents that could well cover those set out in the Employment Documents and Board Documents categories and therefore Ordering it and others be produced is premature and unnecessary.

[32] The Respondent also said given it has made the concession concerning s.351(1), if the Applicants want to assert that the Respondent's actions were for some reason other than as claimed, then then the Applicants need to say what it is and until the Respondent knows what the shape of the case it, I cannot know and therefore cannot decide what is relevant and what is not, and nor can the FWC.

[33] In relation to the argument that the application was premature the Applicants said there was no obligation on the Respondent to produce documents absent an Order and it prefers to rely on the compulsive powers of the FWC.

[34] I accept that this matter does not itself require the FWC to decide a matter that is clearly in dispute, namely whether the Applicants were or are members of the Barada Barna Nation. The Respondent has conceded it took adverse action for a protected reason described in s.351(1). This matter requires a determination about the decision maker's genuinely held beliefs concerning the inherent requirements of the role the Applicants performed before their termination, and also whether the dismissals were unlawful under any applicable "anti-discrimination law".

[35] I am unable at this stage to exclude the prospect that documents sought by the Applicants may become relevant, depending on what is pleaded by the Applicants when statements and submissions are filed by all parties. However in my view it is too early to determine whether such material may be relevant when the nature of the Applicants' case has not yet crystallised.

[36] I am inclined to agree with the Respondent's submission that because it concedes the s.351(1) element of the case, if the Applicants wish to test whether the decision maker (who is yet to be identified) held a genuine belief that the Applicants did not meet the inherent requirements of the particular position, then the Applicant should put its case as to what other reason is asserted in order to define and clarify the finer points of the contest and assist the parties and the FWC to appreciate what is and is not relevant. The Respondent will then be on notice about the nature of the case it will need to bring to meet the onus it carries.

[37] I have concluded that the better course is for the parties to file material in support of their respective cases, and after having seen the material filed the FWC will be in a better position to determine what documents should be the subject of an Order if any. I am persuaded that the Orders issued on 28 June 2017 were premature and should be revoked. The Applicants are not prejudiced by this approach as if on seeing the Respondent's case including all documents produced it can still seek Orders at that time and before a hearing.

[38] I also note the Applicants would have an ability to approach the Federal Court and apply for permission to inspect documents on the file which I understand they have not yet sought to do so.

[39] On the basis of my decision it is unnecessary to address the other points raised in submissions. The matters are listed for further directions at 10am on 2 August.

Mr K. Watson of Counsel, instructed by Legal Aid Queensland for Ms Loretta Roos

Mr T. Murray, Solicitor of Caxton Legal Centre for Ms Bree Dargan

Mr J. Dwyer of Counsel, instructed by Franklin Athanasellis Cullen Lawyers for the Respondent

[1] [2017] FCA 61.

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