Fair Work Act 2009

s.225 - Enterprise agreement

Application for termination of the MSS Security Victorian Enterprise Agreement 2011 - s.590(2)(c) of the Fair Work Act 2009 - application for an order for production of documents.

[1] On 6 July 2016 the Fair Work Commission (Commission) received an application (the Application) from Mr Joshua Findley (Applicant) under s.225 of the Fair Work Act 2009 (Cth) (the FW Act) for termination of the MSS Security Victorian Enterprise Agreement 2011 (the Agreement) after its nominal expiry date.

[2] The employer covered by the Agreement, MSS Security Pty Ltd t/a MSS Security (MSS), objects to the application, as does United Voice.

[3] On 11 May 2017, Mr Findley made an application for an order for production of documents (Form F52) under section 590(2)(c) of the FW Act. United Voice advised that they did not oppose the making of the proposed order and did not seek to make submissions. MSS objected to the order and filed submissions on 30 June 2017.

[4] The Parties agreed that I would deal with this application on the papers.

[5] Mr Findley's Form F52 sought production of the following documents:

"1. The contract services agreement between MSS Security and Deakin University.

2. Any document (electronic or otherwise) that mentions a payment or benefit of any kind from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates, sent or received between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included.

3. All financial records, bank statements and receipts that show payment from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included."

[6] Mr Findley submitted that the power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts.[1]

[7] Mr Findley submitted that the document requested at paragraph 1 of the Form F52 would demonstrate the significant loss in profit MSS would face should the Commission grant his application to terminate the Agreement. He submitted that MSS have won contracts by submitting low bids at the expense of their employees and are opposing the termination of the Agreement because they will lose profit if they have to pay employees minimum wage.[2]

[8] He submitted that this document would assist the Commission to have a solid understanding of the agreements that MSS have with their contractors, and therefore better understand the views of MSS provided in accordance with s.226(b)(i) of the Act.[3]

[9] Mr Findley submitted that this is a relevant consideration to his substantive application and referred to the decision in Pinarello Blues Pty Ltd as Trustee for Judds Discretionary Trust T/A Yankalilla Hotel[4] (Pinarello) in which the Commission stated:

"[98] I respectfully adopt the approach of VP Watson in ERA that the section 226(b) requirement to take into account the views and circumstances of the parties involves far more than the expression of their views in support or opposition to termination. It should involve a consideration of the reasons for their views and the validity of their concerns."

[10] Mr Findley submitted that the Commission only needed to see this small example to get a solid grasp on MSS's alleged companywide underpayment scheme.[5] He submitted that he could have made an application requesting the production of contracts between MSS and all of their clients, however has chosen just one to give the Commission an idea of the significant loss of profit MSS will suffer should the Application be granted.[6]

[11] Mr Findley submitted that this document contains pricing related information and that specific costing information would be clearly apparent in any contract between a company and their client.[7]

[12] In relation to the documents requested in paragraphs 2 and 3 of the Form F52, Mr Findley submitted that they would demonstrate that United Voice was in receipt of corrupting benefits from MSS, explaining their objections to the application.[8]

[13] Mr Findley submitted that, with reference to Pinarello, the Commission should be aware of the reasons that United Voice are not supporting his application to terminate the agreement. He submitted that it is important that the Commission have available evidence of corrupting benefits being provided to United Voice to develop an understanding for the reasons for their views.[9]

[14] Mr Findley also made submissions regarding the Royal Commission into Trade Union Governance and Corruption and submitted that if a Royal Commission has determined that corrupting benefits are so damaging they should attract a criminal penalty then they should at least be a consideration in this application.[10]

[15] Mr Findley submitted that his Form F52 was not a fishing expedition, stating that his submissions have shown a reasonable belief that such documents exist through the dramatic change of stance of United Voice between the application for the approval of the Agreement and their stance on his current application to terminate the Agreement. He submitted these documents would demonstrate that United Voice have ulterior motives.[11]

[16] Mr Findley submitted that MSS had failed to find any argument whatsoever that documents of corrupting payments are not relevant.[12]

[17] MSS filed their submissions approximately 4 hours and 45 minutes after the time specified in the directions. Due to the late filing, Mr Findley objected to MSS' submissions being accepted.[13]

[18] I have considered Mr Findley's objection however in the interests of procedural fairness I have accepted the submissions of MSS and they have formed part of my consideration in this matter.

[19] MSS submitted that no order should be made for the production of documents. They submitted that the documents were not relevant to any issue in the substantive proceedings and that there is no legitimate forensic purpose for the production of these documents.[14]

[20] They submitted that Mr Findley's submissions were largely both legally and factually misconceived and had failed to provide a proper basis for the Commission to issue the orders sought.[15]

[21] In relation to the document requested at paragraph 1 of the Form F52, they submitted that MSS's profits could not be determined based on one agreement with one client, and that the document does not contain the necessary financial information for the Commission to determine MSS's profit.[16]

[22] They further submitted that this document is not relevant to Mr Findley's allegations of underpayment of MSS employees as it does not govern the pay and conditions of employment of MSS employees. Instead, they submitted that it simply sets out the commercial terms and conditions for the supply of services by MSS to Deakin University.[17]

[23] MSS submitted that Mr Findley had already been provided with a redacted copy of the document requested in (1) as part of his proceedings in the Federal Circuit Court. They submitted that consider that Mr Findley is seeking production of this document in these proceedings because he was denied access to an unredacted version by the Court.[18]

[24] In relation to the documents requested in paragraphs 2 and 3 of the Form F52, MSS submitted that Mr Findley was making scandalous and false allegations regarding corrupt payments made by MSS to United Voice.[19]

[25] They submitted that this allegation and the production of these same documents was dealt with by the Commission in great detail in Application by MSS Security Pty Ltd[20]. They submit that Mr Findley's order was granted, with amendments to the original wording of the orders to address the oppressive scope they would otherwise have, and no documents were produced pursuant to the order.[21]

[26] They submit that, given that the Commission has extensively dealt with this issue previously, Mr Findley has not provided any substantial or compelling reason for the Commission to re-examine this issue.[22]

[27] Section 590 of the Act provides as follows:

(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;"

[28] Mr Findley in support of his application for an order for production of documents has made submissions with regards to the relevance of each of the documents sought. The test of relevance utilised by the courts has been applied in a number of decisions in the Commission.[23] The test is whether the documents sought have an apparent relevance to the issues in proceedings.

[29] MSS submit that the reasons of relevance Mr Findley relies on are factually misconceived and that documents sought by Mr Findley are not relevant to the substantive matter. MSS submit that Mr Findley has sought production of documents which have already been denied to him by Justice McNab of the Federal Circuit Court as the information was not relevant to any issue between the parties in those proceeding. MSS submit that Mr Findley has sufficient information to prosecute his current application.

[30] The substantive application has been made under s.225 of the Act. The circumstances in which the Commission must terminate an enterprise agreement are set out in s.226. The legislative matters to be considered in the merits of the application relate to issues relevant to the employer, the employees and an employee organisation covered by the agreement as set out below;

"225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(c) an employee organisation covered by the agreement."

"226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them."

[31] With regards to the documents sought by Mr Findley in paragraph 1, I am not satisfied that a single contract of services of the Respondent would be able to be extrapolated out to provide an accurate reflection of the organisations total profit and losses for any financial year. I am not satisfied Mr Findley has established that this document is relevant to the matters I have to consider.

[32] Further, given the matters I have to consider, a comparison of the terms and conditions of the award and the agreement would be more than sufficient to demonstrate any financial benefit or detriment that the employees and MSS would experience if the agreement were to be terminated.

[33] The second set of documents Mr Findley has sought have been objected to by MSS on the basis that the claims of Mr Findley are not only false but also scandalous. Those documents were sought and dealt with in proceedings before Commissioner Cribb in Application by MSS Security Pty Ltd[24]. MSS submit that, as he was not satisfied with the outcome of the order issued in those proceedings, Mr Findley is attempting to use these proceeding to have a "second bite at the cherry".[25]

[34] Mr Findley submits that the second set of documents he has requested are relevant as they will demonstrate the real reason why United Voice are opposing his application. Mr Findley submits that United Voice are receiving corrupting benefits from MSS and therefore would oppose the termination of the agreement.

[35] Mr Findley's submissions are predicated on the assumption that the terms of the agreement are so much less beneficial than the terms of the award that there could be no reason, other than corruption, for an employee organisation to oppose his application. As it stands the Commission does not currently have before it the submissions from United Voice on the substantive matter.

[36] I am not persuaded by Mr Findley's submission and I am not prepared to issue the orders in their current form. I am of the view that the documents sought are not relevant to the matters I am required to consider under section 226 of the Act.

[37] I am of the view that a comparison between the terms and conditions of the award and the agreement, together with submissions from the employees, employer and employee organisation, will be more than sufficient to enable me to determine this application.

[38] Having considered the documents requested to be produced as set out in the Form F52 and the submissions of the parties, I am not prepared to issue the order sought by Mr Findley at this time.

[1] Applicant's submissions re: Form F52, [6]; Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756

[2] Form F52; Applicant's submissions re: Form F52, [15]

[3] Form F52; Applicant's submissions re: Form F52, [14]

[4] [2015] FWCA 7698

[5] Applicant's submissions re: Form F52, [32]

[6] Applicant's reply submissions re: Form F52, [15]

[9] Applicant's submissions re: Form F52, [18]

[12] Applicant's reply submissions re: Form F52, [20]

[14] MSS submissions re: Applicant's Form F52, [6][a] - [b]

[20] [2016] FWC 8154

[21] MSS submissions re: Applicant's Form F52, [17] - [18]

[23] Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd v Brown; Dew; Mason; Holmes; Mason; and Sabbo [2015] FWCFB 2460

[24] [2016] FWC 8154

[25] MSS submission re: Applicant's Form F52, [16]-[20]

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