Fair Work Act 2009

s.739 - Application to deal with a dispute

RAIL COMMISSIONER TRAM OPERATIONS ENTERPRISE AGREEMENT 2018

Dispute under the terms of an enterprise agreement - whether investigation procedure underway accords with natural justice and procedural fairness - production order sought in relation to disputed materials - application not appropriate at this juncture - liberty to apply granted.

[1] This interlocutory decision concerns an application made by the Australian Rail, Tram and Bus Industry Union (ARTBIU) for a production order against the Rail Commissioner seeking the provision of certain documents. That application is opposed.

[2] The immediate context for the present application is that the Commission has issued directions leading to the hearing of a dispute under s.739 of the Fair Work Act 2009 (the Act) concerning the disciplinary procedures being conducted by the Rail Commissioner in relation to one of the ARTBIU's members.

[3] Shortly stated, the dispute concerns whether the disciplinary investigation being conducted accords with the principles of procedural fairness and natural justice referred to in clause 20.8 of the Rail Commissioner Tram Operations Enterprise Agreement 2018 (the Agreement). The investigation is substantially advanced with some findings made on behalf of the Rail Commissioner, but is not completed, and more recently, some additional allegations have been made concerning the member involved.

[4] Presently, the parties have provided different, but not incompatible, draft questions for determination by the Commission. The ARTBIU is seeking that the Rail Commissioner withdraw any findings or disciplinary outcomes (and refrain from further disciplinary action) arising from the original allegations made on 4 June 2018 and cease to further investigate the additional allegations made on 20 February 2019. The Rail Commissioner seeks a determination that it has complied with all its obligations under clause 20.8 of the Agreement in relation to allegations it made against the ARTBIU's member. The ARTBIU and Rail Commissioner are to file their materials in the substantive application on 21 May and 4 June 2019 respectively.

[5] I note that the Rail Commissioner has foreshadowed a jurisdictional objection, including potentially to the form of any determination that the Commission might consider. Nothing that follows should be taken as having formed any view about the jurisdiction of the Commission to ultimately hear and determine the substantive dispute.

1. The material sought and the justification for the order

[6] The material sought by the ARTBIU may be summarised as follows:

1. A copy of the Minute to Delegate (investigation report) for the allegations against (the employee) from the letter dated 4 June 2018 being allegations 1 to 3.

1. A copy of all evidence the Department of Planning, Transport and Infrastructure (DPTI)[1] gathered which lead to the Minutes to Delegate mentioned in Order 1 including, but not limited to:

1. notes taken when a statement or version of events was provided verbally

d. notes taken when a grievance was provided verbally

1. A copy of any evidence in addition to those in order 1 and 2 that the DPTI relies on in regards to allegations 4-9 if any.

[7] The ARTBIU contends that the production order should be made on the following grounds:

• The material sought is directly relevant to the dispute, may support the ARTBIU's case and the Commission should consider the documents in determining the substantive application;

• The dispute is about the investigation and process generally and the question as to whether the documents now sought should have already been disclosed to the employee concerned should not be conflated with the broader issues of natural justice;

• The employee concerned is out of the workplace on paid suspension and the documents are not confidential in nature or involving business sensitive information. The Rail Commissioner could manage the consequences of disclosure in the workplace; and

• The present application was not an abuse of process and should be granted.

[8] The Rail Commissioner objects to the production order being made and contends as follows:

• The application is premature as the parties have not yet filed their contentions and materials and there is no basis upon which the Commission could now form a view about whether it required access to the documents;

• The dispute itself is about (either wholly or largely) whether the documents now sought should have been provided;

• Some of the material now sought was provided to the employer in confidence as part of the investigation and the Rail Commissioner has contentions it proposes to advance in the substantive hearing about whether access to this and other material was necessary or appropriate in order to provide natural justice; and

• Granting the order would, in effect, grant the ARTBIU's application and deny the Rail Commissioner the opportunity to run the defence on that part of its case.

[9] In the alternative, the Rail Commissioner posited that the Commission could receive and consider the material, without its provision to the ARTBIU, in determining the substantive application. I note that the Rail Commissioner did not suggest this course of action for the purposes of determining the production order application and whether any documents produced should be disclosed (as may often done in disputed production matters). The ARTBIU opposed any such course of action.

[10] In general terms, the Commission has power under s.590(2)(c) of the Act to inform itself in relation to any matter before it in such manner as it considers appropriate. This includes requiring production of copies of documents and records that may also establish evidence to support or challenge a party's case and the power is expressed in broad terms.[2] The making of such an order is discretionary, requiring consideration of all of the relevant circumstances including:

• Apparent (not necessarily direct) relevance to the issues in dispute;
• Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
• Whether the documents are being sought for a collateral or improper purpose;
• Whether questions of legal professional privileged or confidentiality arise;
• The implications for the party concerned including the cost, inconvenience and delay associated with compliance;

• Whether compliance would reveal internal deliberations as to industrial strategy or policy;[3] and
• The potential impact of production upon any contentions to be determined in the matter.[4]

[11] The above are not exhaustive and any one of these factors are not generally determinative in their own right. Further, to the extent that some of these considerations might militate against an order being made, the Commission might in appropriate cases utilise confidentiality orders under s.593 and s.594 of the Act, allow documents to be provided in a redacted form, and/or regulate access to the documents produced, subject to natural justice considerations.

[12] In this matter, the parties are yet to provide their substantive materials and any jurisdictional challenge has not been clarified. However, based upon the questions submitted and my understanding of the matter from earlier proceedings, one of the central issues in dispute as it applies to the initial allegations and findings, is whether the Rail Commissioner has denied the employee concerned natural justice by not providing access to the material now sought. There are other issues; however this is likely to remain one of the central contentions. Importantly for present purposes, given the scope of the dispute and the present status of the investigation, the Commission is not being required to directly determine the substantive merit of any outcome, but rather, the fairness of the current processes.

[13] Accordingly, the material sought is relevant to the matter in the sense contemplated by the authorities and the outcome of the substantive matter does not solely rest on the fairness or otherwise of the provision of that material to the employee concerned as part of the investigation process. However, production of the material, and its provision to the ARTBIU via this application, which is in effect what is being sought, would displace, and render largely irrelevant, one of the major elements to be determined in the substantive proceedings.

[14] The Rail Commissioner is entitled to run its case as to why access to the material now sought is not required in order to provide natural justice and procedural fairness to the employee concerned in the context of this investigation and the requirements that bear upon it. The potential outcomes of the substantive application include those sought by the ARTBIU, a finding that the materials now sought should be provided as part of a revised investigation process (along with other processes), or the determination that no intervention by the Commission is required.

[15] In that light, to grant the production order application at this point in the form as now sought by the ARTBIU would, in effect, predetermine one of the critical elements that are to be resolved in the substantive matter.

[16] For reasons set out above, I am not persuaded that I should grant the production order application at this juncture.

[17] I will grant liberty to the ARTBIU to reapply as the positions of the parties in this matter become clear. However, any such application will need to address the considerations set out above.

[18] Further, I note that as part of the deliberation of the substantive matter, and subject to subsequently forming a view about the fairness of the investigation process, the Commission itself might determine that the materials sought in the production order application should be taken into account. Production of the material in that context would need to be revisited. However, at this point, it is premature to make such an assessment.

[19] The production order application now before the Commission will not be granted.

M Diamond for the Australian Rail, Tram and Bus Industry Union.

S Bakewell with M Eleftheriou (with permission) of EMA Consulting with D Nikoloski and G Sprott of DPTI for the Rail Commissioner.

[1] DPTI provides administration services to the Rail Commissioner.

[2] Clermont Coal Pty Ltd and others v Troy Brown and others [2015] FWCFB 2460 at [21].

[3] See Clermont Coal Pty Ltd and others v Troy Brown and others [2015] FWCFB 2460 at [23] for the caution to be taken in applying this consideration. This is not relevant in this matter.

[4] See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756 including in particular Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892.

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