Construction, Forestry, Maritime, Mining and Energy Union v Os Mcap Pty Ltd

1. The respondent is to file and serve brief submissions concerning the orders for particulars proposed in the reasons for judgment by 4.30 pm on 14 October 2020.
2. The applicant is to file and serve brief submissions in response by 4.30 pm on 21 October 2020.
3. The respondent is to file and serve any brief submissions in reply by 4.30 pm on 23 October 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant has applied for orders requiring the respondent to give discovery of documents. The application is to be decided on the papers. 2 In the substantive proceeding, the applicant alleges that the respondent contravened ss 44 and 114 of the Fair Work Act 2009 (Cth) (the Act) by requiring a number of its employees at the Daunia Mine in Queensland to work on the public holidays of 25 and 26 December 2019 (the Christmas 2019 Public Holidays). The applicant also alleges that the respondent contravened s 45 of the Act and cl 27.4 of the Black Coal Mining Industry Award 2010 (the Award) by paying the employees their ordinary rates of pay for that work, rather than the higher rates prescribed under the Award. 3 The applicant's production workforce at the Daunia Mine consists of about 160 employees, and is split into four "crews". The Statement of Claim alleges that the respondent told two of the crews that all but eight employees on each shift would be required to work on the Christmas 2019 Public Holidays, that they would receive no additional monetary benefits and that there would be no negotiation. 4 In its Defence, the respondent admits that employees were required to work on the Christmas 2019 Public Holidays. I infer that there were about 60 to 70 such employees. The Defence admits that the employees were not paid any separate and identifiable payment, but asserts that they received an annualised salary designed to compensate employees for all hours of work falling within their roster patterns, including on public holidays, and which exceeded the rates payable under the Award. 5 The Defence alleges that the respondent made standing requests to all employees that they work on public holidays. Such requests are alleged to have been made through a standard form contract of employment; during their induction to the Daunia Mine; and through the Operations Services Production Agreement 2018 (the Enterprise Agreement). The Defence also alleges that the respondent made separate requests of all the employees who worked on the Christmas 2019 Public Holidays. 6 The Defence pleads that the requests to work on the Christmas 2019 Public Holidays were reasonable in circumstances including: that the respondent's business model and operational requirements required 24/7 operations; that the employees were aware of the requirement to work roster patterns for a 24/7 operation; that the employees were on standing notice of the request and requirement for them to work on public holidays; and that the respondent took into account the personal circumstances of particular employees. The Defence also pleads that the Award has no operation while the Enterprise Agreement is in force. 7 In its Reply, the applicant denies that the respondent requested the employees to attend for and perform work on the Christmas 2019 Public Holidays. It pleads that if there were requests, they were not reasonable requests. The Reply also asserts that the Enterprise Agreement was "not validly approved" by the Fair Work Commission, but does not explain why that is so. 8 Section 44 of the Act provides, relevantly: 44 Contravening the National Employment Standards (1) An employer must not contravene a provision of the National Employment Standards. … 9 Section 45 of the Act provides: 45 Contravening a modern award A person must not contravene a term of a modern award. 10 Section 114 of the Act provides: 114 Entitlement to be absent from employment on public holiday Employee entitled to be absent on public holiday (1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. Reasonable requests to work on public holidays (2) However, an employer may request an employee to work on a public holiday if the request is reasonable. (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if: (a) the request is not reasonable; or (b) the refusal is reasonable. (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account: (a) the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; (b) the employee's personal circumstances, including family responsibilities; (c) whether the employee could reasonably expect that the employer might request work on the public holiday; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; (e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork); (f) the amount of notice in advance of the public holiday given by the employer when making the request; (g) in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request; (h) any other relevant matter. 11 In the application for discovery, the applicant seeks discovery of the following categories of documents: 1. All documents necessary and sufficient to show: a. the identity of each OSPH Employee; b. the hours worked by each OSPH Employee on 25 and 26 December 2019; and c. the date of commencement of employment of each of the OSPH employees. 2. The pay slip for each OSPH Employee for the pay period which included 25 and 26 December 2019. 3. All documents evidencing any statements made concerning the OSPH Employees' attendance at work on 25 and 26 December 2019 by any person at the meetings referred to in paragraphs (12) and (13) of the defence filed on 20 March 2010 in this matter ("defence"). 4. All documents evidencing any statements made to any of the OSPH Employees during their induction to the Daunia mine concerning working on public holidays as alleged at paragraph 21(b) of the defence. 5. All documents evidencing the business model and/or operational requirements referred to in paragraph 21(e)(i) of the defence, in so far as the business model and/or operational requirements gave rise to a requirement OSPH Employees to work at the Daunia mine on 25 and 26 December 2019. 6. All documents evidencing a "standing request" to OSPH Employees that they work 25 and 26 December 2019 as alleged in paragraph 21(e)(v) of the defence. 7. All documents evidencing the following matters referred to in paragraph 21(e)(vii) of the defence: a. any request by OS Employees that they not be required to work 25 and/or 26 December 2019; and b. any assessment of, or resolution of, such requests by the respondent. 8. All documents recording or evidencing any contract, agreement or arrangement between the respondent and any other person or entity which caused the respondent to require the OSPH Employees to attend work on 25 and 26 December 2019. 9. All documents recording, or evidencing: a. the identity of any person or persons who decided that the Daunia mine would operate at a level which required a full production workforce (or a close to full production workforce) on 25 and 26 December 2019; b. the date on which any decision was made that the Daunia mine would operate at a level which required a full production workforce (or a close to full production workforce) on 25 and 26 December 2019; c. the reason or reasons for any decision that the Daunia mine would operate at a level which required a full production workforce (or a close to full production workforce) on 25 and 26 December 2019; d. the matters taken into account in determining that the Daunia mine would operate at a level which required a full production workforce (or a close to full production workforce) on 25 and 26 December 2019; 10. All documents recording, or evidencing: a. the identity of any person or persons who decided that OS employees would be required to work on 25 and 26 December 2019; b. the date on which any decision that OS employees would be required to work on 25 and 26 December 2019 was made; c. the reason or reasons for the decision that OS employees would be required to work on 25 and 26 December 2019; d. the matters taken into account in determining that OS employees would be required to work on 25 and 26 December 2019; and e. any consideration by the decision makers referred to in subparagraph 10(a) above of alternatives to requiring the OS employees to work on 25 and 26 December 2019. In this Schedule: "Document" has the meaning given by the Dictionary to the Evidence Act 1995 (Cth). "Full production workforce" means the number of production workers employees that would ordinarily be rostered to work each shift at the Daunia mine. "OS Employees" are the production employees employed by the respondent as at 25 and/or 26 December 2020 who worked at the Daunia Mine. "OSPH Employees" are those OS Employees who worked at the Daunia Mine on 25 and/or 26 December 2020. 12 Discovery of documents is dealt with in Div 20.2 of the Federal Court Rules 2011 (Cth) (the Rules). 13 Rule 20.11 provides that, "A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". Rule 20.11 reflects the overarching purpose of civil practice and procedure provisions described in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 14 Rule 1.41 of the Rules provides that if a party makes an application, the Court may grant or refuse the order sought, or make a different order. Under s 37M(3) of the FCA Act, any power conferred under the Rules, "must be exercised or carried out, in the way that best promotes the overarching purpose". 15 Rule 20.12 of the Rules provides that a party must not give discovery unless the Court has made an order for discovery. 16 Rule 20.14 provides: 20.14 Standard discovery (1) If the Court orders a party to give standard discovery, the party must give discovery of documents: (a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and (b) of which, after a reasonable search, the party is aware; and (c) that are, or have been, in the party's control. (2) For paragraph (1)(a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party's own case; (c) the documents support another party's case; (d) the documents adversely affect another party's case. 17 The expression "control" is defined in the Dictionary for the Rules to mean, in relation to a document, "possession, custody or power". 18 In Power Infrastructure Pty Limited v Downer EDI Engineering Power Pty Limited (No 4) [2012] FCA 143, Katzmann J observed at [14] that discovery can be extremely valuable, but also extremely expensive. Her Honour considered that the clear purpose of Div 20.2 is to contain costs. Accordingly, the containment of costs is an important part of the context in which Div 20.2 limits the circumstances where discovery may be applied for and ordered. 19 In Taylor v Saloniklis [2013] FCA 679, Besanko J at [7] held that discovery is, "not automatic or even ordered as a matter of course and even if the Court was persuaded to make an order, the Court will fashion the order to suit the particular circumstances of the case". 20 In United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, Tamberlin J observed at [3]: On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. 21 It is convenient to begin by considering the respondent's submissions. The respondent accepts that the documents in Categories 1 to 7 sought by the applicant are relevant to the proceeding. However, its principal contention is that the evidence should be filed and served before discovery, and that consideration can be given thereafter to what discovery may be necessary. 22 The respondent contends that the affidavit evidence it proposes to file will identify the matters in Category 1, including which employees worked on the Christmas 2019 Public Holidays, the hours they worked and when they commenced their employment. It is submitted that the documents in Category 2 are not necessary at this stage as the annualised salary of the employees is known to the applicant, such that the amount the employees were paid for the Christmas 2019 Public Holidays can readily be identified. 23 The respondent submits that Categories 4, 6 and 7 relate to factual pleadings made by the respondent in the Defence. The respondent states that it intends to prove these facts and if documents evidencing those facts exist, it can be assumed that the respondent will rely upon them. The respondent submits that Category 5 is similar. The respondent submits that it will be necessary for it to prove its allegation that its business model and operational requirements require 24/7 operations. It also submits that Category 5 is ambiguous and too broad. 24 The respondent submits that Categories 8 to 10 are not directly relevant to the issues, or are insufficiently relevant to warrant their discovery. 25 The respondent submits that the exchange of evidence will limit the issues in dispute and limit, and probably eliminate, the need for any discovery. The respondent relies upon the judgment of Perram J in Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 1) [2014] FCA 765. 26 The applicant submits that discovery is necessary because the respondent's case concerning the reasonableness of its requests to work on the Christmas 2019 Public Holidays is unclear and the respondent has declined to provide particulars. The applicant argues that the respondent's submission that discovery is not presently necessary wrongly assumes that the documents will only assist the Defence. The applicant submits that the documents will also assist it to present its evidence in an efficient manner, particularly to address the assertions of reasonableness in the Defence. It relies upon the judgment of McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 6) [2019] FCA 1711. 27 I accept that each category of the documents sought is likely to produce documents that are directly relevant to the issues in the proceeding. However, there are also other matters that are relevant to whether an order for discovery should be made, and the form of any such order. These matters include the width of the discovery sought and the likely cost and inconvenience of producing the documents. The impact of the timing of discovery upon these matters is also relevant. 28 In Anchorage Capital Partners, Perram J held: 20 The Australian Company sought discovery in relation to 10 specified categories. At this stage the pleadings have not closed and no evidence has been proffered by either party. Ordinarily, discovery would not be ordered this early in the case. The process of delivering first pleadings and then evidence has the practical effect of reducing the issues between the parties. More generally, there is tendency for the issues in dispute between parties to reduce the longer a case is on foot (although this is not an invariable principle - some cases, like bad wine, just get worse). Postponing discovery is, therefore, usually likely to reduce the ambit of discovery. 21 For that reason, it is regarded in many quarters as sensible to require parties to put on their evidence before seeking discovery. Whilst this will generally be the correct approach it cannot be a universal one. There will be some cases where it is unfair to require evidence to be put on before discovery takes place. One case of that kind is where a defendant has unique knowledge of the extent of its own misconduct… 22 There can be no hard and fast rules about this; just the presence of a general disinclination to order discovery before evidence. 29 In Buurabalayji Thalanyji Aboriginal Corporation, McKerracher J distinguished Anchorage Capital Partners. His Honour held: 21 It is not the lay or expert evidence which defines the scope of discovery. Rather, it is the pleadings which define the issues in dispute and, therefore, whether a document is discoverable or not. In Anchorage Capital, Perram J stood over generally an application for discovery on the understanding that it would be restored when certain evidence had been filed. However, that was in a context where the pleadings had not yet closed. This case is very different, where the pleadings have long since been closed. 22 If discovery is provided after the filing of evidence, it is likely that parts of the evidence filed would be rendered less useful or unnecessary, whilst other discovered documents will not be addressed in evidence when they ought to be. Orders for evidence after discovery will afford the parties the best opportunity to adduce their evidence completely, which will be of greater utility at trial than evidence which has been filed prior to discovery being given. 23 In this case, the detailed pleadings (that is, the cross-claims) more than sufficiently set out the issues in dispute and provide the framework for discovery. 24 In my view, notwithstanding what was said in obiter in Anchorage Capital (at [21]), the usual adversarial process is for discovery to be given before the filing of evidence, particularly where the inquiry is limited in scope, as it plainly is in this case. But as Anchorage Capital shows, it is always a matter of selecting the procedure to suit the case. 30 These cases neatly describe the conflicting considerations concerning the timing of discovery in a case where the evidence-in-chief is to be given by way of affidavit. Once the issues in the case are defined by the pleadings, orders for discovery may assist the parties to prepare their affidavits; and there are considerable advantages in the parties being able to do so comprehensively, rather than in a piecemeal fashion. On the other hand, the exchange of affidavits before discovery may result in reduction of the issues in dispute and may thereby minimise or obviate the need for discovery. Discovery before the exchange of evidence may ultimately prove to have been at least partly unnecessary, while discovery after the exchange of evidence may necessitate the preparation of further evidence. Whichever course is taken, there is always the possibility of inefficiency and unnecessary costs being incurred. However, what is common to the judgments in Anchorage Capital Partners and Buurabalayji Thalanyji Aboriginal Corporation is their Honours' emphasis upon the necessity for the appropriate procedure to be tailored to the particular circumstances of the particular case. 31 In this case, the factual issues are relatively confined, but the categories of discovery sought by the applicant are relatively broad. The principal factual issues appear to be: (a) the identities of the employees who worked on the Christmas 2019 Public Holidays; (b) their rates of pay for those shifts; (c) what was said by representatives of the respondent to the employees about any requirement to work on those days; (d) whether the respondent "requested" the employees to work on those shifts, including whether standing requests of the kinds pleaded by the respondent were made; (e) the existence of the circumstances pleaded by the respondent to demonstrate that its requests were reasonable, and whether the requests were reasonable in the circumstances. 32 The respondent accepts that it has an evidentiary onus in respect of its allegation that it made requests that the employees work on the Christmas 2019 Public Holidays, and that such requests were reasonable. The applicant has not disputed that it has the onus of proving the remainder of the factual issues. 33 The framing of the categories of discovery sought by the applicant is, in some respects, wider than required by the limited scope of some of the issues. For example, in Category 1, it is unclear what is meant by "necessary and sufficient", and that description potentially covers a wide range of documents. The range of documents in Categories 8, 9 and 10 seem very broad, while their discovery may ultimately provide little practical benefit given that a number of them can be expected to be annexed by the respondent to affidavits. 34 Another factor is that there appear to be about 60 to 70 employees involved. Therefore, Categories 1, 2, 6 and 8 may require discovery of 60 to 70 or so separate sets of documents in respect of those employees. 35 I consider that the objects of r 20.11 of the Rules are best met by allowing a limited form of discovery at this stage. In broad terms, I propose to order discovery in respect of issues upon which the applicant bears an evidentiary onus, and to decline to order discovery at this stage in respect of issues upon which the respondent bears the onus. 36 As the respondent accepts, it will be necessary for it to produce affidavits demonstrating the requests it made and the basis upon which it asserts that its requests were reasonable. I envisage the applicant then being given an opportunity to consider whether it wishes to seek any further discovery, before being required to file its affidavits in reply. 37 I propose to make an order for discovery in respect of Category 3. I will also order discovery under Category 4, as it seems relatively confined, and any documents produced may be usefully addressed in the applicant's evidence. 38 I do not propose to order discovery of documents in Category 2 at this stage. It seems unnecessary, and potentially intrudes upon the privacy of employees more than is necessary in circumstances where it is not clear that they have all agreed to their interests being represented by the applicant. 39 I do not propose to order discovery of the documents in Categories 5, 6, 7, 8, 9 and 10 at this stage. 40 The documents in Category 1 may be best dealt with by requiring the respondent to provide particulars, rather than discovery, at this stage. The issues involved in respect of that category are limited and appear unlikely to be controversial. That course would assist to limit costs. 41 Further, I am considering an order that the respondent provide further particulars of each "request" and "standing request" referred to in paras 21(a)-(d) of the Defence and of the allegations in paras 21(e)(i) and 21(e)(iii)-(viii) of the Defence. The applicant is entitled to be provided with an adequate understanding of these aspects of the Defence without having to wait for the exchange of the evidence, and that understanding may be more efficiently facilitated through particulars than discovery. 42 The orders for particulars I am contemplating are: