Arhill Pty Ltd and others v General Terminal Company Pty Ltd and others

Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 LEGISLATION CITED: Industrial Relations Commission Rules Industrial and Commercial Training Act 1989

Arhill Pty Ltd and others v General Terminal Company Pty Ltd and others (1991) 23 NSWLR 545 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Bell and Berg v Macquarie Bank Limited and another [2001] NSWIRComm 82 Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93 CASES CITED: Workcover Authority of New South Wales v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2000] NSWIRComm 234

AWARDS: Clerical and Administrative Employees (State) Award 296 IG 619

APPLICANT: Mr J DeCelis, Employers First LEGAL REPRESENTATIVES: RESPONDENT: Mr H Mette, New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union

• 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 8 February 2005 Matter No IRC01/3613

Clerical and Administrative Employees (State) Award

Clerical and Administrative Employees (State) Award Application by the Federated Clerks' Union of Australia, New South Wales Branch for variation re clause 7 shiftwork DECISION ON NOTICE OF MOTION [2005] NSWIRComm 18

1 The Commission, on delegation from the Full Bench, has been moved by a Notice of Motion, filed on 31 January 2005 by a peak body of employers - Employers First - an applicant in important proceedings presently before a Full Bench of this Commission. The proceedings have been appropriately characterised and dealt with in a preliminary way as a Major Industrial Case (MIC).

2 The substantive proceedings are due to commence on 16 February 2005 and are to continue for a number of weeks. The proceedings arise from applications filed by Employers First and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ('the Union') (formerly the Federated Clerks' Union of Australia, New South Wales Branch) pursuant to ss10 and 17 of the Industrial Relations Act 1996 ('the Act').

3 The applications might be shortly stated as being concerned with the shiftwork, overtime, span of hours, meal allowance, casual and weekend work provisions in the Clerical and Administrative Employees (State) Award 296 IG 619 - a significant Award of this Commission. It is to be observed therefore, that the applications have a potentially wide ranging impact for many thousands of employees in the clerical industry across New South Wales.

4 The substance of the Notice of Motion seeks to have the Commission, pursuant to r94 of the Commission's Rules, set aside, in whole, a number of summonses for production served on various employer members of Employers First who are to give evidence in the substantive proceedings.

5 On the Notice of Motion, Employers First appeared in its own right and on behalf of its named members, in particular, Prestige International Inc, UPS Pty Ltd and IVF Australia Pty Ltd.

6 The Notice of Motion was listed for hearing on 4 February 2005 together with a complaint by the Union that some of the summonses had not been fully complied with. Mr J DeCelis appeared for Employers First (the applicant to the Notice of Motion) and Mr H Mette appeared for the Union (the respondent to the Notice of Motion).

7 Uncontested affidavit evidence was tendered by Mr DeCelis from: 1. Mr Daniel Paulsberg, Finance and Administration Manager (IVF Australia), 2. Mr Marcus Lamont, Human Resources Manager (UPS Pty Ltd), 3. Mr Axel Becker, Financial Controller (Prestige International Inc), 4. Mr Justin DeCelis, Divisional Manager - Employee Relations (Employers First).

8 At the outset, it is necessary to set out the issues which the parties have themselves identified as requiring determination by the Full Bench. These contentions were filed in earlier preliminary MIC proceedings as directed by Walton J, Vice-President.

9 The Union expressed the issues as follows: IRC 1413 of 2003 1) When examining the clause, including the history of the clause, whether the shift penalties in Clause 7 Shiftwork apply to employees employed to work regularly on Saturdays. 2) When examining the clause, including the history of the clause, whether an employee is required to work a 'shift' as defined in Clause 7, that is, an 'early morning shift', a 'night shift', an 'afternoon shift', a 'permanent night shift', when working on the weekend in order to be classified as a shiftworker. 3) When examining the clause, including the history of the clause, whether an employee is required to be employed as a 'seven day shiftworker' in order to be classified as a shiftworker at all, and so be entitled to payment of the penalty rates contained in Clause 7. 4) When examining the clause, including the history of the clause, whether an employee employed as a seven day shiftworker, that is regularly rostered to work on Sundays and Public Holidays, is merely entitled to an extra week's Annual Leave or whether this solely determines whether someone is able to be classified as a shift worker or not.

IRC 3613 of 2001 5) The appropriate span of ordinary hours for work performed Monday to Friday. Whether that span should be extended at its end point of 6:00pm to 10:00pm. 6) The appropriate penalties to be paid for ordinary hours work performed on the weekends. 7) Whether the entitlement to a Meal Allowance should be changed. This is currently an entitlement if work ceases after 6:00pm and then again after 10:00pm. The proposed variation is that the entitlement would only be available if overtime worked was in excess of two hours without notice of having to work that overtime. 8) Whether the timing of the Meal Break should be changed to the extent that it does not have to be taken between 11:00am and 2:30pm, but can be taken whenever. 9) Whether the provision going to Sunday work should be removed. 10) Whether the span of hours for a casual employee should be changed from matching a full-time employee to those set out in the hours clause.

10 Employers First identified the issues by posing three questions: A. What penalty rates should apply to ordinary time work performed on Saturday and Sunday under the Clerical and Administrative Employees (State) Award?; B. Should ordinary hours be able to be worked between the hours of 6.00pm and 10.00pm under the Clerical and Administrative Employees (State) Award?; C. Should casual employees under the Clerical and Administrative Employees (State) Award be able to perform ordinary hours within the same span of hours as any other employee under the Award?

11 The Union's summonses for production, all in relatively identical terms, were filed on 17 January 2005 and seek the following material: 1. All documents, notes and records for the period January 1999 to January 2005 relating to all employees under the Clerical and Administrative Employees (State) Award (the "Award"), or under any form of employment agreement underpinned by or as substitute for the Award, which you as the employer are required to keep under s129 of Industrial Relations Act 1996 and Part 4, Division 2 Industrial Relations (General) Regulation 2001 , including the following information: (a) the name of the employer, (b) the Australian Business Number of the employer, (c) the name of the employee, (d) the classification of the employee under the relevant award, (e) whether the employee is employed full-time or part-time, (f) whether the employee is employed on a permanent basis, (g) if the employee is an apprentice or trainee within the meaning of the Industrial and Commercial Training Act 1989 - the date the person became such an apprentice or trainee, (h) the date on which the employee was first employed with the employer, (i) if the employee's employment is terminated - the date of termination, (j) the number of hours worked by the employee during each such period, (k) the number of hours worked by the employee during each day and the times of starting and ceasing work, (l) the rate of remuneration per week, day, hour or other period at which the employee is paid, (m) the gross amount of remuneration paid to the employee, showing the deductions made from that remuneration, (n) such other particulars as are necessary to show that the requirements of the relevant industrial instrument relating to remuneration paid and hours worked are being complied with, including whether an employee is claimed to be paid above the exemption rate in the award. 2. Copies of any employment agreements, whether made under the Award, the common law, or otherwise, relating to all employees engaged under the Clerical and Administrative Employees (State) Award, or under any form of employment agreement underpinned by or as substitute for the Award.

12 It will be readily apparent that what is sought by the Union are the employment records for clerical employees which are required to be kept by the employer for a period of six years, pursuant to the provisions of s129 of the Act and the Regulations.

13 Mr DeCelis (with whom Mr Mette agreed) correctly cited the relevant law and principles to be applied by the Commission when determining a notice of motion of this type.

14 A summons is liable to be set aside if it is too wide. A summons will be too wide if it seeks production of all documents relating to a particular subject matter without regard to the issues in the substantive proceedings.

15 A summons is oppressive if the documents sought are not likely to contain material relevant to the issues in the case: Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93

16 Relevance alone is insufficient. The test is whether the material sought is necessary for the disposition of the proceedings: Arhill Pty Ltd and others v General Terminal Company Pty Ltd and others (1991) 23 NSWLR 545

17 There must be a legitimate forensic purpose to obtain the documents and it must at least be on the cards that such documents will be relevant to the issues in the proceedings: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667; Workcover Authority of New South Wales v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2000] NSWIRComm 234.

18 The Commission must weigh the burden involved in complying with the summonses against the probitive value of the documents in question: Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93.

19 I propose to apply the above mentioned principles to the facts and circumstances presented in this case.

20 Due to the desirability of delivering early judgment in this matter (and the unavailability of transcript) it has not been possible to detail the full extent of both parties' oral submissions.

21 Mr DeCelis however, provided a written outline of submissions as follows: The summonses require: i. production of all documents notes and records covering a period of six years ii. in relation to every employee employed in a clerical capacity over that period iii. and includes, but is not limited to, all of the records relating to remuneration that the recipients are required to keep under the Industrial Relations Act and the associated Regulation. 2. The summonses seek production of documents which are not relevant to any fact in issue in the proceedings. 3. The summonses are too wide, lack any forensic purpose and are akin to a 'fishing expedition'. 4. The material sought is not necessary for the disposition of the proceedings. 5. Aspects of the summonses, in particular paragraphs 1(j) and 1(n) are vague and uncertain and not capable of being complied with. 6. The summonses require the production of voluminous material and place an onerous and oppressive obligation on the recipients. The costs and inconvenience that would be incurred by the recipients outweighs the probitive value of the documents sought. 7. The records sought are disproportionate to the narrow compass of the applications which are the subject of the substantive proceedings. 8. It is inconceivable that all of the records covering all of the clerical employees over a six year period could be relevant to the proceedings. Further, it is inconceivable that production of the documents is necessary for the disposition of the arbitral proceedings. ... 18. The summonses were not served in accordance with the Rules of the Commission. 19. The conduct money tendered is insufficient.

22 In oral submissions, Mr DeCelis put that the Union's contentions in the substantive proceedings relate solely to the interpretation of Clause 7 - Shiftwork. It was difficult to see how the name, classification, date of commencement or date of termination of each clerical employee could possibly be relevant. Moreover, if one considers that the Commission will be exercising its arbitral function in respect to prospective rights, then employment records over the last six years must be irrelevant.

23 Mr DeCelis submitted that one might speculate that the Union's summonses served to cause inconvenience to the employer witnesses in the case or for some other collateral purpose. Mr DeCelis added that in a case of limited scope the Union cannot say "give us everything you have got about clerical employees." It is inconceivable that such material could be relevant.

24 Mr DeCelis detailed the oppressive nature of the obligation imposed on employers by reference to the affidavits of Mr Lamont and Mr Paulsberg. In calculating the obligation on Mr Lamont's company, 60,000 pages of documents would need to be copied, involving at least two persons working several days to collate the documents. Printing costs at 25 cents per page would run into many thousands of dollars.

25 Mr DeCelis also questioned whether proper service had been affected on the companies served with the summonses. He referred to the requirements under r93 of the Commission's Rules.

26 Mr Mette strongly resisted the Notice of Motion and rejected the suggestion that they had been served for some collateral purpose. He submitted that the employers to whom the summons had been directed, have had ample time (two weeks) to comply with the summonses and there was no suggestion that the material sought wasn't readily available. Moreover, Mr Mette said that some employers had complied with the summonses, (although not all of these had complied in full).

27 Mr Mette observed that the employers had detailed in their affidavits filed in the substantive proceedings, various matters going to the employment conditions of clerical employees whom they employ. It was entirely appropriate that the Union should be in a position, Mr Mette said, to properly test this evidence by examining the employers' complete records.

28 Mr Mette agreed that the summonses had been crafted on the basis of the documents required to be kept by the employers, pursuant to the Act and Regulations. The documents would clearly show the manner in which employees have been engaged and remunerated. Mr Mette put that the content of the documents disclose a relevant line of cross examination and have forensic purpose. It was not a "fishing expedition" or a "scatter gun" approach.

29 Mr Mette referred to the evidence in the substantive proceedings from Prestige International. That evidence deals with the number of employees engaged, how they are engaged and the history of the operation and how it has changed. The documents sought will shed further light on this evidence.

30 Mr Mette referred to the affidavit of UPS in the substantive proceedings which went to the nature of employment and even whether the state award applied. That matter would be clarified by the relevant documents.

31 Mr Mette conceded that the summonses might be restricted in their scope such as to reduce the six years of records being sought. See Bell and Berg v Macquarie Bank Limited and Another [2001] NSWIRComm 82.

32 Mr Mette disputed that the applications were of limited scope. They affect a large number of employees across New South Wales. Current and past practices will be very relevant to the disposition of the substantive proceedings.

33 Mr Mette said that it was too late to now run an argument that the summonses had not been properly served. Such a complaint should have been made long ago.

34 In reply, Mr DeCelis said the information about rates of pay can be adduced from the witnesses in the witness box or from inquiries to Employers First. This is very different to asking for everything in the employer's possession.

35 Mr DeCelis noted that Mr Mette had conceded that some of the material might not be particularly important for the proceedings. Mr DeCelis emphasised that what is sought in the arbitral proceedings is whether the existing conditions in the Award are fair and reasonable now and prospectively. Records going back six years won't help that argument at all.

36 Mr DeCelis put that there was no dispute between the parties as to what employees do, but rather what they are paid when they do. Further proof will not advance this issue.

37 Mr DeCelis rejected the suggestion of a dispute about UPS's award respondency. The Union had incorrectly identified an entirely different entity to that which Mr Lamont is employed by.

38 Mr DeCelis agreed with Mr Mette, that this was a very important case and it was in the public interest for all parties to bring as much evidence as they consider relevant to advance their respective cases. However, Mr DeCelis said that seeking undisputed material which doesn't advance the Union's case, cannot assist the fair disposition of the proceedings.

39 Mr DeCelis put that the material sought in the summonses fell into three categories. Either it was: (a) not in issue in the proceedings; e.g. the employer's name and ABN, or (b) not relevant to the issues in the substantive proceedings; e.g. the name, classification and date of commencement of every clerical employee employed over the last six years, or (c) so vague and imprecise such as to be unable to be complied with; e.g. the number of hours worked, " during each such period " without reference to any period.

40 In my view, Mr DeCelis' arguments were most persuasive. Moreover, Mr Mette properly conceded that some of the material sought may not be important to the case. Mr Mette was unable to provide any definitive grounds as to why the material sought was relevant to the substantive proceedings. It is not enough to simply "ask for everything" in the hope that what might be provided will disclose something which would otherwise not come to light. This, to my mind, is the classic definition of a "fishing expedition."

41 Further, it is not sufficient to put that simply because the material is available, it should be provided. There must be some specificity about the material required and a positive demonstration of its link and forensic importance to the proceedings. In my view, this onus was not able to be discharged by the Union.

42 In addition, I have reviewed the authorities referred to me by reference to the material sought and the issues the parties themselves have identified which will be before the Full Bench. Having done so, I am comfortably satisfied that the summonsed material is not relevant to the fair disposition of the substantive proceedings and is otherwise oppressive and onerous on the named employers. Further, I have not been satisfied that the material sought has any legitimate forensic purpose.

43 The affidavit evidence of Messrs Lamont, Paulsberg and Becker referred to the voluminous amount of material, and the enormous cost, time, and resources which would be expended in order to comply with the summonses; particularly extending over a period of six years. Mr DeCelis described this burden as oppressive and onerous and disproportionate to the narrow compass of the applications before the Commission. I would agree.

44 The burden for the employers was well demonstrated, for example, by the evidence of Mr Lamont from UPS in which he deposed: In order to source, identify and collate the records, it is necessary to: (i) Retrieve the timesheets from our current records and from archives for each relevant employee. The timesheets record one week to a page. Upon an estimate of approximately 120 clerical employees being employed each week across the six year period, the number of timesheets equates to 37,440 pages. (ii) Retrieve the relevant electronic records from the payroll system, which involves printing out the Payroll Register for each employee. The Payroll Register is a fortnightly record, based on the timesheets, which is generated with each pay period. Given that each fortnightly Payroll Register entry prints out one entry per page, upon an estimate of 120 clerical employees being employed each week across the six year period, the number of Payroll Register Records equates to 18,720 pages. (iii) Retrieve letters of offer or employment contracts from each of the personnel files of the 300-400 employees who have worked in a clerical/administrative capacity over the six year period.

45 Mr Mette did not contest the magnitude of the task or Mr DeCelis' estimate of costs running to many thousands of dollars in time and printing. Even if I had not found the material to be irrelevant, the burden of complying with the summonses is far outweighed by any probitive value of the material sought. Put another way, the test of balancing the probitive value of the material against the burden of providing it, falls in favour of the applicant to the notice of motion.

46 I would raise one further issue which I believe does not assist the Union's position. The summonses were not directed, as it were, to third parties. All of the summonses were to employers whose management will be giving evidence in the substantive proceedings. Indeed, as I understand it, some of the Union's own witnesses will be employees of these companies.

47 Having this in mind, it seems perfectly sensible for the Union to elicit the same matters, which it says are relevant, from its own witnesses or during the cross examination of the employer's witnesses. In other words, to the extent that such information is available and relevant, the evidence would not be lost or unobtainable and can be properly tested.

48 In conclusion, it seems to me that all that might be achieved from the material sought in the summonses, is confirmation of what the parties have already agreed upon and acknowledged. That is, there are differing interpretations applied by various employers in respect to the shiftwork, weekend work and overtime provisions in the Award. I agree with Mr DeCelis that the issue is not what the employees do, or have done. This is not contested. Rather, the issue is what they are paid when they perform the work in question. In these circumstances, I do not apprehend how the material sought will objectively advance the respective parties' cases beyond the status quo of what is already known and acknowledged.

49 For the aforementioned reasons, I would grant the Notice of Motion filed by Employers First on 31 January 2005. The Commission orders that the summonses filed by the Union on 17 January 2005 to employers named in Part C of the Notice of Motion be set aside in whole, save for any material which may have already been provided to the Union as of today's date.

AMENDMENTS HISTORY: 16/02/2005 - There was a word contained within the judgment that should not have been included. - Paragraph(s) nineteen (19). 16/02/2005 - There was a word contained within the judgment that should not have been included. - Paragraph(s) nineteen (19).

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