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[2020] FWC 6368
General information, not legal advice.
Fair Work Commission
2020-11-27
Original judgment source is linked above.
Section 236 - Application for a majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
Application for a majority support determination - production of documents - standing of applicant Union - Union rules - relevance - documents of commercial sensitivity - ostensible relevance - limited production to be made on conditions
[1] On 7 October 2020 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Union) applied to the Commission for orders that J Blackwood & Son Pty Ltd (Blackwoods or the Employer) produce documents (the production application) under section 590(2)(c) of the Fair Work Act 2009 (the FW Act) in advance of hearing the CFMMEU's application for a majority support determination made under section 236(1) of the FW Act (the substantive application).
[2] The production order is opposed by Blackwoods.
[3] The substantive application (including the production application) was allocated to Commissioner Hampton who conducted conferences of the parties on 11 September 2020 and 14 October 2020.
[4] Directions were issued on 11 September 2020 (amended 16 September 2020 and 15 October 2020) for filing materials on the substantive application and, separately, on the production application.
[5] Before the Commission are the following:
Submission on the substantive application (2 October 2020);
Submission on the production application (20 October 2020).
Submission on the substantive application (undated, filed 28 August 2020);
Submission on the substantive application (16 October 2020);
Submission on the production application (9 October 2020);
Further Submission on the production application (20 October 2020); and
Further Submission on the production application (22 October 2020).
[6] Both the CFMMEU and Blackwoods sought permission to be represented under section 596 of the FW Act.[1] Permission was granted on 15 October 2020.[2]
[7] On 15 October 2020 hearing of the substantive application scheduled for 20 October 2020 was vacated in light of the production application. The Commission advised the parties:[3]
"If a production order is made, the parties will be directed to consult about the process to be followed to enable any further objections, confidentiality order applications and the like to be dealt with by the Commission in a timely and procedurally fair manner. The process foreshadowed by the Commission during the recent conference will be provided to the parties at the time to act as basis for the discussions."
[8] On 23 October 2020 the matter (including the production application) was reallocated to me for hearing and determination. The parties were advised that the production application would be determined on the papers based on the aforementioned materials.[4]
[9] This decision concerns the production application.
[10] The CFMMEU's substantive application seeks a majority support determination concerning the Union's desire to negotiate a proposed enterprise agreement covering a group of persons employed by Blackwoods.
[11] The proposed enterprise agreement would be the first enterprise agreement to cover the group.
[12] The group as described in the CFMMEU's application is:
"only employees performing forklift driving and warehouse work and covered by the Storage Services and Wholesale Award 2020" (the Storage Services Award).
[13] Though not express on the face of the application, the CFMMEU submissions indicate that the described group is employed in a geographically distinct workplace being "the Regency Park Distribution Centre" operated by Blackwoods at Regency Park in Adelaide, South Australia.[5]
[14] The CFMMEU submit that the selected group of employees has been fairly chosen and that it is reasonable in all the circumstances to make the determination.
[15] In support of its application the CFMMEU has filed a confidential petition signed between 10 and 12 August 2020 which it claims is evidence that twenty-seven employees wish to commence bargaining with Blackwoods for an enterprise agreement. A redacted version of that petition has been provided to Blackwoods.
[16] On the substantive application, the CFMMEU submit that all requirements of section 237 of the FW Act have been met, and thus the Commission is required to make the determination sought.
[17] Blackwoods oppose the substantive application on multiple grounds. The Employer does not contest that the group of employees sought to be covered are currently employed under a modern award, that no enterprise agreement currently covers the group, nor that at least one employee in the group is a member of the CFMMEU.
[18] However, Blackwoods submit that the application should be dismissed because:
none of the employees in the group are eligible to be members of the CFMMEU and therefore the CFMMEU cannot be a bargaining representative of an employee who will be covered by the proposed agreement. The employer contends that as the Union has no standing to make an application under section 236, the application is not validly made (the eligibility issue);
the Commission cannot be satisfied that the majority of the relevant employees want to bargain due to alleged misrepresentations made by the Union in relation to the petition, and due to developments affecting the group since the petition was circulated; and
the Commission cannot be satisfied that the relevant group of employees has been fairly chosen.
[19] In its materials, Blackwoods has included a confidential list of employees in the relevant group working at Regency Park. This discloses forty-three employees in the group.
[20] The CFMMEU sought eight categories of documents be produced by Blackwoods[6]:
"1. A copy of any document comprising or recording any extant contract or understanding between J. Blackwood & Son Pty Ltd (Blackwoods) and any other person or entity for the provision to Blackwoods of alteration, ornamentation, embroidery, embellishment or printing services in relation to any garments, workwear or apparel, including but not limited to a copy of any document comprising or recording any extant contract or understanding with the entities trading as:
2. A copy of any document describing or recording the tasks and duties to be performed by persons employed by Blackwoods in the in house design unit including but not limited to any job and persons specifications and position descriptions pertaining thereto;
3. A copy of any document comprising or recording any extant contract or understanding between Blackwoods and any other person or entity for the manufacture of garments, workwear or apparel including but not limited to the manufacture of garments, apparel or workwear sold under the "Workhorse" label;
4. A copy of any document describing or recording the tasks and duties to be performed by any person or persons employed by Blackwoods at Regency Park who liaise with providers of alteration, ornamentation, embroidery, embellishment or printing services in relation to any garments, workwear or apparel, including but not limited to any job and persons specifications and position descriptions pertaining thereto;
5. A copy of any document describing or recording the tasks and duties to be performed by the person or persons employed by Blackwoods who liaise with providers of alteration, ornamentation, embroidery, embellishment or printing services in relation to any garments, workwear or apparel including but not limited to any job and persons specifications and position descriptions pertaining thereto;
6. A copy of any document describing or recording the tasks and duties to be performed by Ms Aldi Pehar and any persons employed in the role of "embroidery coordinator" including but not limited to any job and persons specifications and position descriptions pertaining thereto;
7. Any document exchanged between Blackwoods and the "board of reference" as described in Schedule F of the Textile, Clothing, Footwear and Associated Industries Award 2010; and
8. A copy of any document recording, in respect of any request on the part of Blackwoods for the alteration, ornamentation, embroidery, embellishment or printing of garments, workwear or apparel on or after 1 October 2019:
b. the garments, workwear or apparel to be worked on; and / or
c. the number of garments, workwear or apparel of each type."
[21] Upon the employer filing its materials, the CFMMEU did not press production of categories 2, 5 and 6 (above). However, the CFMMEU sought (in addition to categories 1, 3, 4, 7 and 8 above) three further categories (which I describe as categories 9, 10 and 11):
"9. A copy of any document describing or recording the tasks and duties to be performed by any person or persons employed Blackwoods who directly report to Ms Pehar, including but not limited to the persons who occupy the role described as "Clothing Facilitators" in Ms Aldijana Pehar's Position Detail document, including but not limited to any job and persons specifications and position descriptions pertaining thereto;
10. A copy of any document detailing the proportions of Blackwood's revenue nationally derived from each of the categories of: (i) Footwear; (ii) Apparel; (iii) Workwear; and (iv) Personal protective equipment; and
11. A copy of any document detailing the proportions of Blackwood's revenue in South Australia derived from each of the categories of: (i) Footwear; (ii) Apparel; (iii) Workwear and (iv) Personal protective equipment."
[22] The CFMMEU seeks a production order on the grounds that:
the documents sought have ostensible relevance to the CFMMEU submission that the Union has standing to make the substantive application (that is, it has coverage of the relevant employees) having regard to the Union's vocational rules and its industry rules;
• the documents sought will "shed light on the industrial character of Blackwoods"[7];
• the "proper administration of justice requires that the CFMMEU is provided with the evidence it needs to prosecute its case"[8]. The witness statement filed by the Employer provides information enabling production of categories 2, 5 and 6 not to be pressed but does not otherwise obviate the need for production, and in some respects requires additional production;
[23] Blackwoods oppose the production application on the following grounds:
many of the categories sought are not relevant nor ostensibly relevant to the matters in issue given the manner in which the CFMMEU has described (both in terms of duties and geography) the group of employees it seeks to cover;
documents concerning work performed by contractors engaged by the Employer are not relevant as that is not work performed by Blackwoods or its employees;
where a category could be said to be relevant or ostensibly relevant, what is sought is too broadly framed or imprecisely described;
many of the documents sought are internal business records or commercial-in-confidence and are inappropriate to disclose to third parties, and may include personnel records of employees;
the burden of providing the documents is collectively, and with respect to some individual categories, burdensome and oppressive;
the production application is a fishing expedition. It is not the Employer's responsibility to provide evidence the Union needs to prosecute its case; and
the Union is in a position to require employer witnesses to be made available for cross examination and that should be sufficient should further relevant information be required.
[24] The Commission's power to order production is sourced from section 590 of the FW Act which relevantly provides:
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;"
[25] This power extends to third party discovery.
[26] It is a discretionary power which will generally be exercised "in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons."[9]
[27] The Commission has non-exhaustively identified the following considerations as relevant to the exercise of the discretion:[10]
- 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 privilege 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; and
[28] I now turn to consider each of the categories sought.
Category 1: A copy of any document comprising or recording any extant contract or understanding between J. Blackwood & Son Pty Ltd (Blackwoods) and any other person or entity for the provision to Blackwoods of alteration, ornamentation, embroidery, embellishment or printing services in relation to any garments, workwear or apparel, including but not limited to a copy of any document comprising or recording any extant contract or understanding with the entities trading as:
[29] This category seeks the production of commercial contracts with third parties which perform alteration or embellishment services on garments sold by Blackwoods. Specified are contracts with three third parties in particular.
[30] The Union submits these documents are relevant because the contracts would inform whether the substantial character of Blackwoods is in the textile, clothing and footwear industry, as the CFMMEU claims. It says it would also inform whether the workers sought to be covered are engaged "in or in connection with embroidery and alteration of garments, workwear or apparel".
[31] At the outset, it should be noted that the group of employees the Union seeks to be covered by the proposed enterprise agreement is not persons performing textile work such as embroidery or embellishment. Coverage is sought of "employees performing forklift driving and warehouse work and covered by the Storage Services and Wholesale Award 2020".
[32] In issue in the substantive proceedings is whether these forklift drivers and warehouse workers employed by Blackwoods at Regency Park are covered by the Union's rules; not whether textile workers working for third parties under commercial contracts are so covered.
[33] It is not readily apparent from the materials filed to date whether the CFMMEU intends to rely on an industry-based eligibility rule or solely on its vocational rules to assert standing.
[34] However, I accept the Union's submission that the industrial character of Blackwoods is ostensibly a matter in issue. Whilst it may be more relevant to questions of industry-based eligibility, it is not necessarily irrelevant to vocational considerations. I also accept that services a business may procure can inform a conclusion as to its substantial industrial character.
[35] Nonetheless, simply because the overall industrial character of a busines may inform a matter in issue. this does not render it reasonable to require production of all commercial contracts between that business and third parties. Relevance and even ostensible relevance needs to bear some sufficient connection between the matters in issue and the documents sought that would, in the interests of justice, enable the respective cases to be presented and decisions made on an informed basis, lest production orders become fishing expeditions or excessive and intrusive burdens.
[36] The Union submits that a sufficient connection exists because its rules provide coverage of persons who work "in or in connection with" textile services and that it will seek a finding that forklift and warehouse employees work "in connection with" the textile products the subject of these commercial contracts.
[37] Whether a forklift driver in a warehouse is employed "in connection with" the product that is warehoused (or worked on by contractors in the geographic vicinity of the warehouse) is not a matter requiring determination in these production proceedings. It is a disputed matter and one that may need to be determined in the substantive application.
[38] The test in production proceedings is not the merit of a particular proposition in issue but whether documents sought have relevance or ostensible relevance to a matter in issue that is not frivolously advanced, and that the documents should be produced in the interests of justice.
[39] In the substantive proceedings the Union's case requires determination of both matters of fact and the interpretation of its rules. Its contentions are not frivolously advanced. It is a central element to the Union's claim that its rules provide for both industry coverage and vocational coverage of the warehouse employees. The documents sought in this category bear on matters of fact ostensibly relevant to that question.
[40] I am satisfied as to ostensible relevance. I will make orders on category 1 documents.
[41] However the request is too broadly framed. At this stage, and to render the request reasonable, I will limit the order to contracts with the three contractors specified in the production application rather than cast the net wider. The request is also unlimited as to time frames and unlimited as to any connection with the Regency Park warehouse operations. An order will need to include reasonable limits in both respects.
[42] My provisional view is that it would be reasonable for the time constraint to be those contracts with any of the three contractors (only) in operation during the twelve month period prior to filing the substantive application (October 2019 to October 2020) and apply only with respect to contracts for services on goods that included goods distributed through the Regency Park warehouse.
Category 3: A copy of any document comprising or recording any extant contract or understanding between Blackwoods and any other person or entity for the manufacture of garments, workwear or apparel including but not limited to the manufacture of garments, apparel or workwear sold under the "Workhorse" label.
[43] This category seeks production of the Employer's contracts with third parties for the manufacture of garments including the 'Workhorse' label.
[44] The Union does not assert that Blackwoods is a manufacturer of garments or that warehouse employees are engaged in manufacturing. Rather, it submits that manufacturing contracts for the supply of textiles inform the industrial character of the Employer especially what the Union believes to be supply of an exclusive brand ('Workhorse').
[45] Whilst the type of manufactured product ordered, warehoused or sold may have ostensible relevance to assessing the industrial character of Blackwoods, I am not satisfied that contracts for the manufacture of garments have a sufficient connection to a relevant matter requiring determination. Manufacturing is an early stage in a supply chain and contracts for manufacturing themselves precede manufacturing. The matters requiring determination concern persons working in distribution, not source manufacturing. Some quality control aspects may intersect manufacturing and distribution, and an open question exists whether duties of that type are "in connection with" manufacturing textiles.
[46] To the extent that quality control matters or matters relating to brands or exclusive brands may have ostensible relevance, at this stage there is scope to obtain relevant evidence (if any) about contracts from oral evidence on the written statements filed.
[47] Should it become more readily apparent in the substantive proceedings that contracts or certain contracts relating to manufacturing have a sufficient connection to matters in issue and need to be produced in the interest of justice, a fresh application can be made at that time on the grounds then apparent.
[48] On the material currently before me, I do not make orders relating to category 3.
Category 4: A copy of any document describing or recording the tasks and duties to be performed by any person or persons employed by Blackwoods at Regency Park who liaise with providers of alteration, ornamentation, embroidery, embellishment or printing services in relation to any garments, workwear or apparel, including but not limited to any job and persons specifications and position descriptions pertaining thereto.
[49] This category seeks documents (including job descriptions) of persons employed by Blackwoods at Regency Park who liaise with providers of garment alteration services.
[50] This category is associated with categories 5 and 6 which are not pressed. Categories 5 and 6 concern the role of a co-ordinator whereas category 4 would appear to concern job descriptions and related documents concerning the employment of persons working with or under the co-ordinator.
[51] Although I recognise Blackwood's submission that the co-ordination of alteration services and persons working with the co-ordinator are (or were) located nearby but (it is said) physically distinct from the warehouse, I am satisfied that some documents in this category have ostensible relevance to the question whether the warehouse employees work "in connection with" this work (either geographically or in a relevant operational manner).
[52] Having found that contracts for the performance of alteration work may have ostensible relevance to this question, it follows that persons employed by Blackwoods associated with co-ordinating the provision of those services may also have ostensible relevance.
[53] However, the category as sought is too broadly framed and is not time limited. I do not consider it reasonable or necessary to require production of employment contracts or extracts of a particular employee's terms of employment. My provisional view is that only the generic position descriptions of persons employed by Blackwoods who liaised with providers of alteration services of garments that were warehoused at Regency Park between October 2019 and October 2020 should be the subject of the production order.
Category 7: any document exchanged between Blackwoods and the "board of reference" as described in Schedule F of the Textile, Clothing, Footwear and Associated Industries Award 2010 (the Textile Award)
[54] This category concerns regulatory correspondence required of Blackwoods by the Textile Award. As noted, it is not the Textile Award which covers those persons the subject of the Union's substantive application. That is the Storage Services Award. Nonetheless, the Union submits that this regulatory correspondence is relevant because it may disclose suppliers of textile products, and this is relevant to a matter in issue: the industrial character of Blackwoods.
[55] There is some ostensible relevance of this category. Nor is disclosure of regulatory correspondence of the same ilk or sensitivity as disclosure of contracts with manufacturers or suppliers.
[56] Being satisfied of ostensible relevance, I will include this category in the production order.
Category 8: A copy of any document recording, in respect of any request on the part of Blackwoods for the alteration, ornamentation, embroidery, embellishment or printing of garments, workwear or apparel on or after 1 October 2019:
b. the garments, workwear or apparel to be worked on; and / or
c. the number of garments, workwear or apparel of each type."
[57] This category can be loosely described as documents in the nature of work orders for the alteration of garments since 1 October 2019 (including the type of work and number of garments).
[58] Having concluded that contracts for the provision of such alteration services (with reasonable limits) has ostensible relevance and should be produced, it follows that orders for work arising from those contracts also have ostensible relevance.
[59] However, what may be of lesser if not peripheral relevance are the quantities and types of garments the subject of work orders. However, I recognise that the CFMMEU case places certain emphasis on an in-house brand label and that the phrase "in connection with" on which it relies may bear some relationship to quantum of throughput into distribution activities.
[60] For these reasons I will include work orders for alteration but on a more restricted basis. A more restricted time period is reasonable. My provisional view is that only the twelve month period prior to filing the substantive application (October 2019 to October 2020) should be the subject of a production order.
[61] A direct connection to altered product that has passed through the Regency Park warehousing operations in this period is also necessary to establish sufficient connection to matters in issue. Further, as orders are likely to refer to commercially sensitive matters (including pricing) confidentiality, reasonable redaction and restricted use conditions will need to apply.
[62] Further, so as to guard against production of this category becoming an excessive burden on Blackwoods, in the first instance, I will only require production of a representative sample of work orders for the relevant period (accompanied by a statutory declaration that the documents produced are a representative sample). Documents already produced by Blackwoods as attachments to its filed witness statement (IMH-10) are a reasonable guide as to the type of work orders that may need to be produced as part of a representative sample. Should the representative sample produced not be sufficient, the Union would have its rights reserved to make a fresh application for further or better production.
Category 9: A copy of any document describing or recording the tasks and duties to be performed by any person or persons employed Blackwoods who directly report to Ms Pehar, including but not limited to the persons who occupy the role described as "Clothing Facilitators" in Ms Aldijana Pehar's Position Detail document, including but not limited to any job and persons specifications and position descriptions pertaining thereto.
[63] This category appears to be directed at the production of the position description of a clothing facilitator(s) who reports to the clothing co-ordinator.
[64] To the extent that the job description of a "clothing facilitator" reporting to the co-ordinator has ostensible relevance, it is likely to be included in category 4 documents.
[65] Should it not be so included, I will order production of the position description of the "clothing facilitator" for the reasons and on the terms specified for category 4 documents.
Categories 10: A copy of any document detailing the proportions of Blackwood's revenue nationally derived from each of the categories of: (i) Footwear; (ii) Apparel; (iii) Workwear; and (iv) Personal protective equipment; and
Category 11: A copy of any document detailing the proportions of Blackwood's revenue in South Australia derived from each of the categories of: (i) Footwear; (ii) Apparel; (iii) Workwear and (iv) Personal protective equipment.
[66] These categories concern documents detailing proportions of revenue attributable to sales of certain product categories, nationally (category 10) and in South Australia (category 11).
[67] I am not satisfied that documents relating to sales revenue should be provided at this stage.
[68] Firstly, at paragraph [10] of the witness statement filed by the employer reference is made to a proportion of revenue from apparel and footwear sales. This suggests there may be some evidentiary relevance of this subject matter. However, paragraph [10] is expressed as part of an "overview" of national operations. It appears not to be directed at a specific matter in issue. The witness can be required for cross examination, and his evidence (including this claim if pressed) can be tested by cross examination. Whilst I accept the CFMMEU submission that production of documents in this category would enable that evidence to be fully tested, I am not currently satisfied that there is a sufficient connection between sales data sought and matters in issue such that the interests of justice require material of this nature to be produced at this stage. A more direct connection between a specific matter in issue and the sales data sought would need to be established before a production order in these categories would be reasonable.
[69] Secondly, the category sought is imprecisely expressed. It could include any or all sales or revenue documents, including sensitive internal material made available to directors, owners or senior management for the purpose of budgeting, strategic planning or the like. An order in such broad or imprecise terms would not be reasonable, even were I satisfied of ostensible relevance requiring production in the interests of justice.
[70] I will not at this stage make orders with respect to categories 10 or 11.
[71] I have indicated that a production order will be made with respect to categories 1, 4, 7, 8 and 9,
[72] I have indicated that the terms on which documents in these categories are sought are too broadly or imprecisely framed. I have indicated provisional views on the limits which should apply.
[73] I have also expressed a provisional view on the appropriate time frame for documents relevant to certain categories, being the twelve-month period October 2019 to October 2020.
[74] I also indicate that the order should restrict the use of produced documents to these proceedings only. Categories 1 and 8 clearly refer to documents of a commercially sensitive nature. The order will permit content of a commercially sensitive nature and not of ostensible relevance to be redacted, provided the utility of the document(s) in these proceedings is not compromised. The order will require a copy of these documents be produced to the legal advisers of the applicant Union and only to those officials directly concerned with instructing on the application and that they not be distributed, further copied or communicated more widely to members or other persons without leave of the Commission, and that all copies be returned to the employer or destroyed at the conclusion of these proceedings.
[75] I direct that the parties confer within seven days on the provisional views I have expressed with the view to reaching an agreed position (insofar as possible) on the terms of an order consistent with this decision. I also direct that the parties confer on what would be a reasonable period of time for the employer to produce the relevant documents. I further direct the applicant Union to file a draft production order consistent with this decision within fourteen days.
[76] I will re-list the matter for consideration of the draft order and for directions more generally on 17 December 2020 at 4.15pm (ACDT).
Construction, Forestry, Maritime, Mining and Energy Union - 20 October 2020
J. Blackwood & Son Pty Ltd T/A Blackwoods - 9, 20 and 22 October 2020
[1] CFMMEU Submissions on Representation 22 September 2020; Blackwoods Notice 8 October 2020
[2] Email 'Chambers - Hampton C' 15 October 2020 10.48am
[4] Email 'Chambers - Anderson DP' 23 October 2020 2.38pm
[5] CFMMEU Submissions 2 October 2020 paragraph 44
[6] Categories not pressed in strike-through
[7] CFMMEU Submissions 20 October 2020 at 11
[9] The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1984] HCA 9; (1984) 159 CLR 163 at [12]
[10] Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756 at [13]; see also Esso Australia Pty Ltd v Australian Workers Union, Australian Manufacturing Workers Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWCFB 2200
[11] 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
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Maritime, Mining and Energy Union
J. Blackwood & Son Pty Ltd T/A Blackwoods [2020] FWC 6368
(1984) 159 CLR 163