Fair Work Act 2009

s.229 - Application for a bargaining order

Australian Rail, Tram and Bus Industry Union, Australian Municipal, Administrative, Clerical and Services Union, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, The Association Of Professional Engineers, Scientists And Managers, Australia

Application for orders for the production of documents - application made in context of substantive proceeding involving application for bargaining orders - alleged abuse of process - overlap in material sought by the application and relief in substantive proceeding - relevance - oppression

• [1] An application for an order for the production of documents has been made by the Australian Rail, Tram and Bus Industry and others (Applicants) under s.590(2)(c) of the Fair Work Act 2009 (Cth) (Act). The application has been made in the context of a proceeding (Substantive Proceeding) in which the Applicants are seeking that bargaining orders be made against Sydney Trains and NSW Trains (Respondents) pursuant to s.229 of the Act. The proposed orders for production are directed to the Respondents and are opposed by them.

• [2] The application was made on 18 March 2025. The matter was determined on the basis of written submissions provided by the parties. The Substantive Proceeding is listed for hearing over two days commencing on 24 March 2025.

• [3] Although I am not required by the Act to provide a decision in writing in relation to a decision under Part 5-1 of the Act,[1] I think it is appropriate in the circumstances to do so and to provide brief written reasons for that decision. For the reasons that follow, I have decided that the application for an order for production should be refused.

• [4] In their application for an order, the Applicants seek the production of documents 'recording, identifying or constituting' certain things referred to in various paragraphs of a witness statement filed by the Respondents in the Substantive Proceeding (witness statement).

• [5] In the Substantive Proceeding, the Applicants seek that bargaining orders be made on the basis that, amongst other things, the Fair Work Commission can be satisfied that the Respondents have not met the good faith bargaining requirements[2] set out in s.228 of the Act during the course of negotiations for a new enterprise agreement. The Applicants allege that the breaches of the good faith bargaining requirements by the Respondents have included refusals to attend and participate in meetings, refusals to disclose relevant information and failures to give reasons for responses to union proposals.

• [6] The bargaining orders sought by the Applicants in the Substantive Proceeding include orders that the Respondents produce a memorandum which includes certain information as to the status of claims that have been made in the course of the negotiations[3] and that the Respondents provide 'information requested by the Unions with respect to productivity and savings measures.'[4]

• [7] The Respondents resisted the making of the orders for production on the basis that the Applicants' purpose in seeking the documents is to obtain access to the information sought by way of final orders in the Substantive Proceeding, without having to be first successful on the merits. They said that such an approach involved an abuse of process. The Respondents referred to the similarity between the documents within the scope of the proposed order for production and the information sought by the making of bargaining orders in the Substantive Proceeding, and in particular at Item 3 of Schedule B of the application in that matter. In my view there is significant overlap in the material and there is substance in the objection.

• [8] Item 5 of the bargaining orders sought in the Substantive Proceeding is in broad terms. It provides as follows:

Within 7 days, the Rail Entities will provide information requested by the Unions with respect to productivity and savings measures, including that relating to the Digital Systems Project.

• [9] Item 3 of the documents sought in the draft order refers to documents recording etc., 'the potential savings identified through mutual gains bargaining referred to at [23] (of the witness statement) and any associated costings.' Item 7 of the draft order refers to 'costings and associated analysis supporting the conclusions as to the cost of 'the Conditions' and the productivity gains referred to at [48]' of the witness statement. Documents related to 'costings' are also sought at items 5 and 6 of the draft order. Putting to one side the scope of the information that might ultimately be sought by the Unions under Item 5 of the proposed bargaining orders if they were made, there is on the face of that part of the proposed order a clear overlap with the information now sought in the draft orders for production. Both refer to documents associated with savings and productivity measures. The documents sought and referred to above are a subset of the documents that are comprehended by the range of material that may be sought by the Unions under Item 5 of the bargaining orders. To the extent that the documents sought relating to costings are relevant to the calculation of savings measures, those documents may also overlap with the information sought in the substantive proceedings.

• [10] The request for documents recording etc., 'delegations' referred to at [17] of the witness statement[5] appears to be directed to the delegation of authority to persons to participate in the bargaining process. This is similar to the information sought in item 2 of the proposed bargaining orders which provides that the Respondents are to provide a memorandum identifying the persons with a decision-making role and the scope of their decision-making responsibility. The request for documents relating to instructions provided to the witness[6] would also likely relate to or include the identity of persons and their role in decision-making which is the information sought by order 2 in the Substantive Proceeding.

• [11] The Applicants pointed out that Item 3 at least of Schedule B in the Substantive Proceeding did not require the production of any documents. That may be true in the sense that Item 3 (and Item 5) require not the production of an existing document but the provision of certain information by way of memorandum or other means. However, I do not think that the distinction detracts from the fundamental problem posed by the making of the proposed order given the nature of the relief that is sought in the Substantive Proceeding.

• [12] The Applicants describe the Respondents' submission as an overstatement of the true position, that is 'that the documents produced under the order for production may include information of the kind which the CRU contends that Trains should have, but has not, disclosed during bargaining; and which the CRU contends Trains should be required to disclose.' They submitted that, put that way, the proposition might be accepted but that it did not follow that the application for an order was an abuse of process as contended for by the Respondents.

• [13] Section 590 provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such a manner as it considers appropriate, including by requiring a person to provide documents, records or other information. I am conscious of the need to take into account the assistance that the requesting parties may derive from the production of the documents. However, I am of the view that it would not be an appropriate use of the Commission's powers to compel the production of material which bears such a similarity to the information which is sought to be obtained by the making of bargaining orders in the Substantive Proceeding. To do so would deprive the Respondents of the opportunity to put their case in full as to whether there has been any failure to meet the good faith bargaining requirements and consequently whether any bargaining order should be made at all requiring the provision of information.

• [14] The grounds advanced in support of the application for orders say that the documents sought are relevant to issues including the following:

3.'the identity of the true decision makers in relation to the bargaining';

4. the Respondents' alleged 'failure to disclose relevant information which it had'; and

5. the Respondents' alleged 'inability or unwillingness to disclose the criteria which determined whether the [A]pplicants' claims or any of them would be accepted or rejected'

• [15] The Respondents accepted that the assessment of relevance was to be 'approached at a relatively high level' and referred to tests, such as apparent[7] relevance, which have been adopted in the Commission. They nonetheless challenged the asserted relevance of the documents sought. They pointed out that for the Applicants to succeed in the Substantive Proceeding they would need to demonstrate a failure by the Respondents to meet one or more of the requirements in s.228(1). They submitted that none of the material sought would assist in the determination by the Commission as to whether those alleged failures had occurred.

• [16] By way of example the Respondents submitted that it was not the identity per se of the true decision-makers for the Respondents that was relevant, but, even on the Applicants' own case,[8] it was the failure to identify that was the relevant issue. Again, I think there is force in that submission. It is the alleged failure to disclose or provide information which is at the centre of the application in the Substantive Proceeding rather than the content of any information itself. Those are matters which can be tested and determined in the course of the Substantive Proceeding.

• [17] Finally, the breadth of the order sought tells against the making of order. If made in the form sought, the order would require the production of any document which 'records or identifies' any of the eight listed categories. Even though the scope of the documentation sought is qualified by reference to the material in the witness statement, it extends to any document recording or identifying those things, including for example, broad concepts such as the "limit of the funding envelope available". The task of searching for, identifying and producing material of that kind would be extremely burdensome, if not oppressive. I also accept that Item 8 in the proposed order suffers from the defect identified by the Respondents, namely that the word 'confirmed' is used in two places in the paragraph of the witness statement referred to and it is unclear which of those uses Item 8 is directed to.

• [18] The application for orders for the production of documents is refused.

[1] Section 601(1)(a).

[2] Section 230(1) and(3)(a)(i).

[3] Items 3 and 4 of Schedule B to the application in the Substantive Proceedings

[7] See Clermont Coal Pty Ltd v. Brown [2015] FWCFB 2460.

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