MNC on first page changed from ' [2025] FWC 3184' to '[2025] FWC 3312'

Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 2555 of Commissioner P Ryan on 29 August 2025 in matter number C2024/9196 - Application for Order for Production - apparent relevance in context of appeal proceedings - legitimate forensic purpose - admissibility of new evidence on appeal - relevance to matters in dispute on appeal - interpretation of enterprise agreement - evidence of conduct under the agreement - no apparent relevance to matters in dispute on appeal - application dismissed.

• [1] On 28 April 2025 Ms Mary Ann Watson referred a dispute to the Fair Work Commission about the terms of the enterprise agreement that covered her employment with Feros Care Limited. On 29 August 2025 Commissioner Ryan determined the unresolved matters in dispute in a published decision. Ms Watson has appealed the Commissioner's decision. In the appeal proceedings Ms Watson has applied for an Order for Production and I have declined her request. This decision contains my reasons for declining to make an Order for Production.

• [2] The Feros Care, NSWNMA, QNMU and HSU Enterprise Agreement 2017 - 2020 (Agreement) applied to Ms Watson's employment. Clause 20.2 of the Agreement confers certain entitlements to travel allowances and includes the words:

"... The payment will be based on the most direct available route between work locations, excluding travel to and from the employee's home to the first place of work and return to home at the end of his or her duties..."

• [3] Ms Watson is or was employed as a casual Community Support Worker and provided direct in-home aged care support services to clients of Feros Care in Regional NSW. Ms Watson argued before the Commissioner that the travel allowance in clause 20.2 applied to travel from her home to her first place of work and applied to travel from the last place of work to Ms Watson's home.

• [4] In his published decision (see Watson v Feros Care Limited [2025] FWC 2555) the Commissioner rejected this interpretation and found, amongst other things at [22]:

"... on any reading the words in clauses 20.2(b) and 20.2(e) of the Agreement are abundantly clear and there is no ambiguity. Those clauses make clear that travel between an employee's home and their first place of work and travel between the employee's last place of work and their home is excluded travel and does not attract payment of the Vehicle Allowance".

• [5] Prior to the hearing of her appeal Ms Watson has asked the Commission to make an order that Feros Care produce documents in the following categories:

"1. Rosters - Client Helen Stewart (Mullumbimby):

All roster records (draft or final) identifying the Appellant's broken shifts for [a named client] from 1 October 2018 to 1 December 2021, showing:

(a) start and finish times of each part;

(b) unpaid intervals between parts; and

(c) rostered location(s).

2. The records may be provided as PDF or CSV exports, or as screenshots if exports are unavailable, indexed by date.

3. Reasonable redaction of unrelated client identifiers is permitted, provided that [the named client] remains identifiable together with the corresponding date, time, and location details.

4. The Appellant further requests that the Respondent identify the rostering and payroll systems used during the period in question, and confirm whether any travel blocks or waiting-time allowances were applied."

• [6] Amongst other submissions Ms Watson said that the Order for Production should be made because:

(a) the request is proportionate and confined to issues central to the appeal, and its production will materially assist the Full Bench in determining whether Feros Care's rostering and payment practices complied with the applicable industrial instruments;

(b) the rosters go directly to Grounds 1 and 3: they evidence the broken-shift practice (two-part shifts with long gaps and re-attendance at the same client) and its economic effect;

(c) the Appellant is self-represented. At first instance she was unfamiliar with the formal process for seeking production of rosters and, had she been aware, would have sought them earlier to support her case. Prior to the cessation of employment she was denied portal access, which prevented her from retrieving roster data herself. She has acted promptly once the issue and process became clear;

(d) the rosters show the practice and economic effect that the decision below failed to weigh

(e) the rosters are probative of the very facts to which cl.20.2 is applied in broken-shift scenarios. They assist the Commission to assess whether the approach below gave proper weight to material considerations (practice; paid 'wait') consistent with a purposive construction. They do not invite a rehearing on quantum;

(f) if documents obtained under the order were sought to be tendered as evidence in the appeal, the documents would not be "new" evidence because they would merely "clarify and corroborate" evidence that was before the Commissioner;

(g) the documents would demonstrate the industrial context in which the terms of clause 20.2 should have been considered by the Commissioner; and

(h) the documents sought could not have been obtained with reasonable diligence for use at the hearing before the Commissioner because Ms Watson represented herself at that hearing and did not know that she could ask for an Order for Production.

• [7] The power conferred by s 590(2)(c) is a broad discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The power should be exercised in accordance with the principles applied by the courts in civil proceedings when issuing subpoenas and the documents sought must have apparent relevance to the issues in dispute in the proceedings.

• [8] The following passage from the Full Court's decision in Wong v Sklavos [2014] FCAFC 120, (2014) 319 ALR 378 is often cited in relation to whether documents sought have apparent relevance to the issues in dispute:

"Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38]."

• [9] Ordinarily an appellant will not be allowed to lead further evidence unless, in the interests of justice, they can show that the further evidence would have produced a different result if it had been available at the original hearing (per CDJ v VAJ [1998] HCA 76 at [111], 197 CLR 172 at 202).

• [10] The discretion to admit further evidence using the facility of s.607(2) is guided by the principles set out in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Akins):

"Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."

• [11] Previous decisions of the Commission have referred to the principles in Akins: Soorley v The Trustee for the Gunnebah Operating Trust t/a Gunnebah Retreat [2025] FWCFB 102 at [29], Max Vincent v Roof Safe Pty Limited [2023] FWCFB 182 at [27], Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists) [2022] FWCFB 39 at [17], Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11] and C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21].

• [12] As the Full Bench in Humphries v Australian Capital Territory (As Represented By The Chief Minister, Treasury And Economic Development Directorate) [2024] FWCFB 402 (Humphries) observed:

"... it is rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met .... the fact that the Commission has discretion to receive new evidence in an appeal is not an open invitation for an appellant, armed with the benefit of hindsight, to advance a different case on appeal, to cure deficiencies in the case at first instance."

• [13] Applications for an Order for Production in appeal proceedings must be assessed in this context. An appellant seeking an Order for Production will need to establish that it is "on the cards" that the documents sought will be admitted into evidence on appeal in the interests of justice. It is for an appellant to establish that the documents could not have been obtained with reasonable diligence for use at the original hearing and that there is a high degree of probability that the documents will lead to a different result on appeal.

• [14] If the documents sought cannot be admitted on appeal, or are not likely to be admitted on appeal in the interests of justice, then they are not likely to have an apparent relevance to the issues in dispute on appeal.

• [15] Contrary to Ms Watson's argument, the documents sought would be new documents in the appeal because they are not (1) documents currently in Ms Watson's possession or (2) documents that were in evidence in the earlier proceedings.

• [16] The original dispute referred to the Commission concerned the interpretation of clause 20.2 of the Agreement. The appeal is only concerned with the interpretation of clause 20.2 of the Agreement and whether Commissioner Ryan correctly applied well-recognised interpretation principles.

• [17] The documents sought by Ms Watson do not have any apparent relevance to matters in dispute on appeal.

• [18] The Commissioner referred to the principles collated by the Full Bench in AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114], [2017] FWCFB 3005; (2017) 268 IR 285 at 310, ("Berri"). In Berri the Full Bench summarised the interpretation principles relating to use of evidence of the surrounding circumstances:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose

1. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
2. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
3. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
4. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
5. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
6. Evidence of objective background facts will include:
   1. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
   2. notorious facts of which knowledge is to be presumed; and
   3. evidence of matters in common contemplation and constituting a common assumption.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

• [19] Commissioner Ryan found that the terms of clause 20.2 were not ambiguous and, applying the principles in Berri, he did not consider any surrounding circumstances to interpret the provision.

• [20] In any event the documents sought in the order are not the kinds of evidence referred to in Berri because any such documents post-date the making of the Agreement. The Agreement commenced on 22 January 2018. Ms Watson commenced employment in October 2018 and seeks production of documents covering 1 October 2018 to 1 December 2021. All of the documents sought pertain to events after the Agreement was made.

• [21] At best the documents could only be evidence of conduct after the Agreement was made. In Berri at the Full Bench said at [105]-[107]:

"The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

'... will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.'

In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding - a settled interpretation accepted by the parties.

We also note that in Spunwill Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd :

'In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.'

• [22] On any reading of the Commissioner's decision and Ms Watson's submissions, documents that fall within the stated categories will not evidence post-Agreement conduct that could reveal a clear and mutual subjective intention as to what the Agreement originally meant. To the contrary, Ms Watson said that the documents would be relevant to determining whether Feros Care's rostering and payment practices complied with the Agreement. That is, Ms Watson claims that Feros Care's conduct after the Agreement was made did not comply with the requirements of the Agreement. As such, evidence of Feros Care's conduct under the Agreement could not fit within the narrow band of relevant or admissible evidence referred to in Berri above.

• [23] In her submissions Ms Watson suggested that the documents sought would support what she says are the industrial realities of travel entitlements under the Agreement and that the documents corroborate other documents already in evidence.

• [24] I have significant doubts that the so-called industrial realities relied upon by Ms Watson are relevant to the interpretation of clause 20.2. As the Commissioner observed at [19] "the materials filed by the Applicant largely went to the fairness of the Vehicle Allowance and Travel Policy rather than addressing the agreed questions." If Ms Watson's argument is that the ordinary meaning of clause 20.2 is unfair because it does not take into account the industrial realities, the appeal is unlikely to succeed. Even if Ms Watson can establish that the industrial realities are relevant, the new documents sought are not likely to lead to a different result (per the principles in Akin) if there was already material of the same nature before the Commissioner.

• [25] Finally, if the documents had any apparent relevance in the original proceedings they could have been obtained by Ms Watson through reasonable diligence. Ms Watson represented herself in the original proceedings and could have applied for an Order for Production during those proceedings. As the Full Bench in Humphries makes clear, the appeal process is not an opportunity for an unsuccessful litigant to try to cure the deficiencies of their case at first instance.

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