s.394 - Unfair dismissal

Application for order to produce - Application granted - Confidentiality Order

[1] On 28 January 2026, the United Workers' Union (UWU / the Respondent) made a request for orders to produce under s590(2)(c) of the Fair Work Act 2009. The UWU seeks production of messages from a joint WhatsApp Group entitled 'UWUSU Education' (the Group) between Ms Julie Pascoe, Mr Andrew Beitzel, Ms Sara Anne Gaske (the Applicants). The Applicants oppose the request for the order for production.

[2] The UWU initially applied for an order covering all messages from 1 January 2025 to 31 October 2025. The UWU submitted that the documents were sought as a key issue in the proceedings will be whether the applicants failed to follow directions of the Respondent regarding an enterprise bargaining campaign. The Respondent is aware that the Applicants and others were members of the Group and that they discussed matters including the UWU's directions to the Applicants and how they ought to be responded to. The UWU wrote to the applicants seeking the Group messages on 5 November 2025.

[3] The three Applicant's in the substantive matter submits that the application should be refused, or in the alternative that the scope of the order be greatly reduced, and/or that subject to further order, access to the document be restricted to the UWU's legal representatives. The Applicants provided that as well as the Applicants, the Group also contained another member of the team of the UWU Staff Union, and involved discussions relating to industrial activity, support for other members of the staff union not involved in the group which are protected.

• [4] The Applicants submitted that the Commission ought apply the principles articulated by Collier J in Tamawood Limited v Haibtare Developments Pty Ltd[1]:

(a) the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings. The adjectival relevance looks towards the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings;

(b) a subpoena cannot be used for the purposes of "fishing" or for the purpose of determining a preliminary question as to whether a party has a supportable claim;

(c) there must be a legitimate forensic purpose for the production of documents; and

(d) the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.

[5] The Applicants submit that the documents are not directly relevant to the issues which remain in dispute following the filing of evidence and submissions. The Applicants submit that there is a relatively small field of issues remaining in dispute following their concessions in evidence and arguments in their submissions in their outline of argument, and that the Group messages cannot assist in resolving these concerns.

[6] The Applicants emphasise that they do not deny that they jointly organised the delegates meeting of 9 September 2025 without the authority of their supervisors. The Applicants submit the standing issue in dispute is whether there was an obligation not to do so. The Applicants deny that the Team Reset Email of 5 September imposed any clear directions on them in respect of messaging and meetings with delegates. Further, the Applicants deny that there were any clear, lawful and reasonable directions regarding industrial strategy in relation to the bargain or messaging or that they in fact ignored or did not follow the Education Team's preferred messaging. The Applicants submit that measure of relevance in this context is what the Applicants did and said to delegates. As such, any messages which might disclose subjective feelings of the Applicants is not relevant to whether there were lawful and reasonable directions, whether the alleged conduct occurred or whether it constitutes a valid reason for dismissal.

• [7] The Applicants submit that the UWU cannot advance their arguments in these disputes from the documents which would be produced. This is especially so, given the scope of the request, which includes messages going as far back as January 2025, which messages could not plausibly be relevant to the impugned conduct in September 2025. The Applicants submit it appears that the Respondent's request does not have a genuine forensic purpose and rather seeks to establish further grounds for the dismissals after the fact.[2]

• [8] The Applicants also submit that the order would be oppressive in terms of its impact on the Applicants.[3]
• [9] The Applicants submit that the order would expose communications between UWUSU officials and the Applicants which constitute 'internal deliberations on industrial relations matters'.[4] With these together, the Applicants submit the order would be oppressive to be required to produce the Group chat in its entirety.

[10] The Applicants submit that if orders were to be made, they should be limited to being between 5 September 2025 and 20 October 2025, being the most prominent purported directions in dispute. They further submit that if orders be made access to the documents should be initially limited to the legal representatives of the Applicant until further order.

• [11] The Respondent, in preparing its submissions, revised its draft order for production to confine the Group chat period requested to 1 April to 20 October 2025. The Respondent placed emphasis on the principles as stated in Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd,[5] particularly "The test for relevance does not require that a party demonstrate direct relevance, rather, the documents must have some potential relevance." The Commission is also to conduct a balancing exercise,[6] applying procedural fairness.[7]

[12] The Respondent characterises the issues in dispute differently to the Applicants, stating in particular that the Applicants' submissions leave two live issues, firstly that the Applicants deny they received the directions, and secondly, they deny that they breached the directions.

[13] The Respondent submits the Applicant should order production, following addressing five questions:

(a) Has the Respondent established grounds for a belief that a document or class of document exists, and that such a document or class of documents may be or have been in the possession, custody or power of the Applicants?

(b) Are the documents sought identified with sufficient particularity?

(c) Do the documents sought have apparent relevance to the issues in the proceedings?

(d) Are the documents being sought to support the Respondent's existing case?

(e) Does the balancing exercise favour the production of the documents being sought?

[14] The Respondent submits that there is very low chance the order would be oppressive as it is uncontroversial the Applicants' have access to the documents and have already confirmed they have been compiled but not provided to the Respondent. The Respondent also notes the documents are sufficiently particularised, and the dispute is to what scope is relevant.

[15] The Respondent submits the Commission should conclude that the test of apparent relevance is met. In the WhatsApp Group the Applicants discussed, inter alia, the Directions and how they ought to be responded to. Significantly, this is not disputed by the Applicants. The Commission should conclude that because the messages set out discussion about the Directions they are relevant to the live issues. As such, production of the messages will assist the Commission in determining the live issues.

[16] Further, the Respondent submits Commission should conclude that the documents are being sought to support the Respondent's case that the Direction was given by the Respondent to each of the Applicants and that each of the Applicants failed to comply with the Directions. The balancing exercise favours the grant of the order of production. The Respondent asserts the Applicants fail to proffer a cogent reason as to why the Commission should reject the application.

[17] The Respondent asserts that the Applicants' submission that the documents are not relevant to the actual issues in dispute should be rejected. In the Group Chat the Applicants discussed, inter alia, the Directions and how they ought to be responded to by the Applicants. The documents are relevant to both live issues.

[18] The Respondent rejects the Applicants' assertion that ordering production would be oppressive in the meaning considered in the precedents. The Respondent says it does not place any burden on the Applicants as they documents have already been compiled. The complaint that they are 'private' is not a consideration. Further, the UWUSU has already concluded its enterprise bargaining from the period, and it would not affect the UWUSU as there are no extant bargaining or industrial disputes that would be subject to the implied undertaking.

[19] Finally, the Respondent's submission is there is no justification for the documents produced to be limited to only the access of the Respondent's legal representatives.

[20] Having considered the submissions I am satisfied the messages may be relevant to facts in issue, including whether the Respondent gave directions, the nature of the Applicants understanding of what directions may have been given and their views in relation to such matters. Messages in relation to those matters are relevant and live issues and the assistance the Commission may receive in ordering the production of the messages favours granting the application for production.

[21] The Applicants have expressed concern in relation to the time for which the order is sought. I note the Respondent has amended the period for which it seeks the production of messages. I am satisfied the now proposed period from April 2025 is appropriate.

[22] I am satisfied given the messages were exchanged in a private chat group and the chat group appears to have included persons that are not a party to the proceedings, that it is appropriate, at this stage, to confine the disclosure of the messages to the Respondents legal representatives. The matter can be revisited on application.

[23] I order in accordance with power under section 594 of the Fair Work Act 2009 that the group chat messages that are to be produced as required by the order to produce as described in the order that will be issued separately and concurrently with this decision, are to be produced only to the Commission and the legal representatives of the Respondent, and not disclosed to others, until further order.

[1] [2009] FCA 364.

[2] Faulkner v BHP Coal Pty Ltd [2014] FWA 5134.

[3] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Acciona M&E Pty Ltd T/A Acciona Mechanical & Electrical [2024] FWC 2780; Faulkner v BHP Coal Pty Ltd [2014] FWA 5134.

[4] Clerks (Alcoa of Australia - Other Than Mining and Refining) Consolidated Award 1985 [1988] AIRC 391.

[5] [2024] FWC 479.

[6] Clerks (Alcoa of Australia - Other Than Mining and Refining) Consolidated Award 1985 [1988] AIRC 391.

[7] Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCA 54; (2011) 192 FCR 78 at [28].

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