Fair Work Act 2009

s.604 - Appeal of decisions

Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY LTD, Qantas Group

Applications for Orders requiring production of documents - Applications for Orders requiring persons to attend the Fair Work Commission.

[1] On 19 December 2017, Mr Ross Kennedy, the Applicant in unfair dismissal matter U2017/11691, lodged with the Fair Work Commission (the Commission) several interlocutory applications seeking orders for the production of documents in respect of his unfair dismissal application.

[2] In summary, Mr Kennedy sought orders against:

• the Respondent, Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS);

• Dr Kipling Walker;

• Recovery Partners;

• MJSP Management Consulting; and

• Allianz Insurance Australia.

[3] A conference was held before Deputy President Kovacic on 30 April 2018 to deal with the applications (Conference). Participants at the Conference included Mr Kennedy, and Mr Michael O'Neil (Qantas Group (Qantas)) and Mr Brett Hardy (QGS) for the Respondent.

[4] The morning session of the Conference was audio-recorded and the parties may access this. However, the equipment failed to record the afternoon session of the Conference.

[5] In his decision of 14 May 2018,[1] Deputy President Kovacic made several orders to produce in response to Mr Kennedy's applications, but declined to order the production of a number of documents (the Interim Decision).

[6] On 1 June 2018, Mr Kennedy lodged a Notice of Appeal against the Interim Decision in respect of decisions not to grant his requests for the production of certain documents (matter C2018/2983).

[7] The appeal is listed for hearing before this Full Bench on 12 July 2018. As part of this appeal, Mr Kennedy has lodged with the Commission four further interlocutory applications which can be summarised as follows:

1. an application dated 14 June 2018 under s.590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) for an order that Mr O'Neil and Mr Hardy produce:

(a) specified categories of documents exchanged between Qantas and Herbert Smith Freehills (HSF) in the period from 28 March 2018 to 30 April 2018 (Application 1a); and

(b) notes taken by Mr Hardy at the Conference (Application 1b, together 'Application 1');

2. applications dated 14 June 2018 under s.590(2)(a) of the Act for orders that Mr O'Neil and Ms Claudia Kernan of HSF attend the Commission hearing on 12 July 2018 to give evidence (Applications 2 and 3 respectively); and

3. an application dated 19 June 2018 under s.590(2)(c) of the Act for an order that Deputy President Kovacic produce his handwritten notes taken at the Conference (Application 4) (together, the Applications).

[8] Mr Kennedy has also made an informal request to the Full Bench for a copy of any notes taken by the Deputy President's Associate at the Conference.

[9] This decision concerns the Applications and the informal request noted above.

[10] Affected parties were afforded the opportunity to make written submissions in relation to the Applications and email submissions were received from the Respondent and Ms Kernan on 15 June 2018. The Respondent opposes the Commission granting any of the Applications on various grounds,[2] and Ms Kernan opposes the granting of Application 3 for '[m]any of the reasons ... reflected in Mr O'Neil's email.'[3]

[11] On 15 June 2018, Mr Kennedy sought the opportunity to respond to the Respondent's submissions. On 18 June 2018, the Commission requested Mr Kennedy to file his response by 5:00pm, 20 June 2018. No submissions were received from Mr Kennedy by that time.

[12] On 19 June 2018 Mr Kennedy wrote to the Commission requesting a separate hearing or conference in respect of the Applications. On the same day, the Commission advised Mr Kennedy that the Applications would be dealt with on the papers and that any other submissions in support of the Applications were to be filed by 4:00pm, 21 June 2018. No submissions were received from Mr Kennedy by that time.

[13] On 25 June 2018 Mr Kennedy filed three submissions in support of the Applications.[4] On 26 June 2018 Mr Kennedy filed submissions in response to the Respondent's submissions of 15 June 2018.[5]

[14] The Full Bench has read and considered all of the material in reaching its decision.

[15] The Applications are made under s.590 of the 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:

(a) by requiring a person to attend before the FWC;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC'.

[16] Rules 53 and 54 of the Fair Work Commission Rules 2013 (Cth) respectively provide that a party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by issuing an order requiring a person to attend before the Commission or provide copies of documents or records.

[17] Section 590 is found in Subdivision B of Division 3 of Part 5-1 of the Act. Subdivision D of Division 3 of Part 5-1 is headed 'Decisions of the FWC'. Section 601 in that Subdivision relevantly provides:

'601 Writing and publication requirements for the FWC's decisions

(1) The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other than this Part;

(2) The FWC may give written reasons for any decision that it makes.'

[18] The Explanatory Memorandum to the Fair Work Bill 2008 says in relation to what is now s.601(2) of the Act:

'Subclause 601(2) provides that FWA may give written reasons for any decision that it makes. It is expected that FWA will provide written reasons for all decisions of significance. An example where a written reason may not be necessary is a procedural decision.' [6]

[19] As this decision is made under Part 5-1 of the Act, it is excluded from the requirement for written decisions contained in s.601(1). Moreover, as the Explanatory Memorandum indicates, written reasons may not be necessary in regard to procedural decisions such as this.

[20] However, while we are not required to issue a written decision, we consider it preferable to briefly set out our reasons in respect of each of the Applications, and the informal request. We will now address the Applications in turn.

[21] Application 1 requests the production of certain documents exchanged between Qantas and HSF as well as notes taken by Mr Hardy at the Conference.

[22] The principles applying to the issue of orders for production by the Commission under s.590(2)(c) of the Act are well established.

[23] The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings.[7] Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced.[8] The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.[9]

[24] Application 1a seeks all documents sent between named persons from Qantas and HSF between 28 March 2018 to 30 April 2018 'in respect to the Applicant's Unfair Dismissal Remedy including the Applicant's "Applications for Orders requiring a person to produce documents etc to the Fair Work Commission" ...' made in matter U2017/11691.

[25] The Application states that these documents will inform the Commission if Qantas 'has breached an Order made by the Fair Work Commission on 28 March 2018, and will further inform if the Applicant has been subject to prejudice and disadvantage in the case that QN [Qantas] has been non-compliant with the 28 March 2018 Order.'

[26] We understand the reference to the '28 March 2018 Order' to be to the Deputy President's decision of that date to refuse to grant permission under s.596(2) of the Act for QGS (not Qantas) to be represented by a lawyer in matter U2017/11691 (Representation Decision).[10]

[27] We do not propose to make the orders sought, having regard to the matters below.

[28] First, Application 1a is framed to cover documents in relation to Mr Kennedy's unfair dismissal application generally and is not confined to the documents that are the subject of this appeal.

[29] Second, to the extent that Application 1a relates to Mr Kennedy's requests for documents that are the subject of this appeal, the Application seems to be directed to exposing wrongdoing on the part of the Respondent and its legal representatives, rather than for the purpose of supporting the case to be advanced with regard to the matters under appeal.

[30] Mr Kennedy submits that:

'[i]t should be well-accepted that DP Kovacic's Decision of 28 March 2018 which refused the Respondent's Application for legal representation by HSF disallows QN [Qantas], QGS and Mr O'Neil from accessing the legal services and expertise of HSF from 28 March 2018 on the Applicant's Unfair Dismissal Remedy matter and related matters including the Applicant's 'Applications for Orders to produce documents' ... Compliance with Orders made by the FWC are integral to the proper administration of justice and the Applicant should not be disadvantaged in the case that QN [Qantas] and HSF have failed to follow DP Kovacic's Order.'[11]

[31] We note that evidence about such matters would constitute new evidence in the appeal. A Full Bench will normally deal with an appeal on the basis of the evidence in the proceedings which led to the decision subject to the appeal. However, the Act confers a discretion on a Full Bench hearing an appeal to admit further evidence and take into account any other information or evidence.[12] The principles established in Akins v National Australia Bank[13] are relevant to when the discretion to admit new evidence may be exercised. In that case the Court noted that while it is not possible to formulate a test which should be applied in every case, in general these three principles should be applied:

• it must be shown that the evidence could not have been obtained with reasonable diligence for use at the proceedings at first instance;

• the evidence must be such that there must be a high degree of probability that there would be a different decision; and

• the evidence must be credible.

[32] We are not persuaded on the basis of Mr Kennedy's submissions that the documents sought have apparent relevance to the issues before this Full Bench; nor do we consider that there is 'a high degree of probability that there would be a different decision' in view of such evidence.

[33] The conduct of the Respondent does not appear to us to be materially relevant to the appeal or to any real controversy in the appeal. The matter before us is to determine Mr Kennedy's application to appeal the Interim Decision in respect of decisions by Deputy President Kovacic not to grant his requests for the production of certain documents. It is not directed to the conduct of the Respondent.

[34] In the circumstances, we do not propose to make the order sought with respect to Application 1a. However, if the point Mr Kennedy wishes to establish is whether or not lawyers were involved in the preparation of the Respondent's objections to the orders to produce in U2017/11691, and he satisfies us that this is relevant, he could seek to call Mr O'Neil in the appeal hearing to put that question to him.

[35] Moreover, it is open to Mr Kennedy to make further applications for orders to produce at any time in the course of his unfair dismissal proceedings, including once the parties' respective outlines of submissions and evidentiary material have been filed.[14] The question of the relevance of such material to the matter before the Commission - Mr Kennedy's unfair dismissal application - would be considered at the time of any such application.

[36] In view of this decision, it is not necessary for us to decide the other issues raised by the parties, namely:

• whether the documents in question are subject to legal professional privilege; or

• the legal effect of the Representation Decision (other than to observe that the Deputy President's correspondence of 18 June 2018[15] relates to matter U2017/11691 only and the views expressed therein are not binding on this Full Bench. Should a party seek to be represented in this appeal, this will be determined by the Full Bench).

[37] Application 1b seeks the production of notes taken by Mr Hardy at the Conference. The request is made on the grounds that this 'will inform the Fair Work Commission of statements made by DP Kovacic in relation to the refusal by DP Kovacic of the Applicant's "Applications for Orders to produce documents", and will seek to overcome prejudice and disadvantage that flowed to the Applicant from the afternoon session of the 30 April 2018 Conference not being recorded.'

[38] It is unfortunate that no audio-recording is available to either party in relation to the afternoon session of the Conference.

[39] Mr Kennedy has suggested that the absence of an audio-recording of the full Conference has caused prejudice and disadvantage to him.

[40] Mr Kennedy submits that the documents are required for him to demonstrate to the Full Bench that Deputy President Kovacic made 'a significant error' in making the Interim Decision 'that precluded the Applicant with procedural fairness on his "Applications for Orders to produce documents", and that '[t]he documents are also required for the Applicant to be used to identify the statements that DP Kovacic made and relied upon to refuse the Applicant's "Applications for Orders to produce documents".'[16]

[41] Mr Kennedy submits that he was denied procedural fairness by the Deputy President in the conduct of the Conference, including because he was not provided with a reasonable opportunity to review and give a considered response to:

• the Respondent's 'dense' 76-page document entitled 'QGS Objections to Amended Orders to produce', filed after commencement of the Conference; or

• the position taken by the Deputy President during the afternoon session of the Conference, 'that the request for bullying documents would fail on relevance after you [he] had quickly read Dr Walker's report'.[17]

[42] The Full Bench makes the following observations:

• Neither of the parties has access to an audio-recording of the afternoon session of the Conference, not simply Mr Kennedy.

• Mr Kennedy was present at the Conference and was in a position to hear and make notes regarding comments made by the Deputy President at the Conference.

• In the appeal proceedings (assuming that the Full Bench is satisfied as to its relevance), Mr Kennedy may himself give evidence of what was said in the Conference or about the conduct of the Conference that he considers evidences procedural unfairness to him. Where such evidence is contested by the Respondent, the Respondent could lead its own evidence and this could be dealt with in the usual way by the Full Bench.

[43] In view of these matters, it is not clear to us the basis on which Mr Kennedy asserts that access to any notes taken by Mr Hardy would assist us in considering the grounds of appeal.

[44] We also find it difficult to envisage circumstances where it might be appropriate for the Commission to compel a party to provide access to their personal notes of a conference or hearing to the other party, in a contested matter. We agree with the Respondent's submission that it would not be appropriate for Mr Kennedy to be given access to Mr Hardy's notes taken at the Conference, and accordingly, decline to exercise our discretion to require the production of documents falling within Application 1b.

[45] Applications 2 and 3 respectively seek the attendance of Mr O'Neil of Qantas and Ms Kernan of HSF at the Commission hearing on 12 July 2018, to give evidence.

[46] In deciding whether or not to issue an order to attend under s.590(2)(a) of the Act, the Commission will consider whether attendance at the hearing by the person to whom the order will apply will assist in the resolution of the matter before it.

[47] Both Applications provide for Mr O'Neil and Ms Kernan to give evidence as to any 'unreasonable communications' between HSF and Qantas, to purportedly inform the Commission as to whether Mr Kennedy has been subject to prejudice and disadvantage in the case that QGS (rather than Qantas) has 'been non-compliant with the 28 March 2018 Order by accessing the legal services and expertise of HSF.' Mr Kennedy's submissions in support of the Applications mirror his submissions in relation to Application 1a.

[48] Mr O'Neil's attendance is also sought to provide evidence about statements made by Deputy President Kovacic at the Conference.

[49] Both Mr O'Neil and Ms Kernan have objected to the issuing of the orders. Mr O'Neil has also advised that as he will already be in attendance at the hearing, the proposed order is unnecessary.

[50] We decline to exercise our discretion to make the orders sought in circumstances where Mr O'Neil has confirmed that he will be in attendance at the hearing.

[51] As noted at paragraph [34], if one of the points Mr Kennedy wishes to establish is whether or not lawyers were involved in the preparation of the Respondent's objections to the orders to produce in U2017/11691, and he satisfies us that this is relevant, he could seek to call Mr O'Neil in the appeal hearing to put that question to him. It is not necessary for Ms Kernan to separately be ordered to attend for this purpose.

[52] In addition, and again subject to the Full Bench being satisfied as to the relevance of any such evidence, Mr Kennedy could seek to call Mr O'Neil to give evidence about statements made by Deputy President Kovacic at the Conference.

[53] Accordingly, we decline to exercise our discretion to make the orders sought by Applications 2 and 3.

[54] Application 4 is for Deputy President Kovacic to be ordered to produce any handwritten notes taken by him at the Conference.

[55] Application 4 provides that the documents are sought as the Deputy President's Conference notes will inform the Commission of specific statements made by him in relation to his refusal to grant in full Mr Kennedy's applications for orders to produce documents in matter U2017/11691, and 'will seek to overcome prejudice and disadvantage that may have flowed to the Applicant from the afternoon session of the Conference not being recorded. The documents are also required to be included in the Applicant's Appeal Book.' Mr Kennedy's submissions in support of Application 1b are also made in support of Application 4.

[56] There are two documents that fall within the scope of Application 4:

• a version of the Respondent's submissions in relation to each of Mr Kennedy's applications for production of documents in matter U2017/11691 annotated by the Deputy President; and

• a short handwritten note made by the Deputy President (together, the DP Notes).

[57] The DP Notes are internal working documents taken by a decision-maker that were created as part of the deliberative process.

[58] The DP Notes are immune from production because of the protection and immunity conferred by s.580 of the Act upon Members of the Commission.

[59] Section 580, entitled 'Protection of FWC Members', provides:

'An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.'

[60] The Explanatory Memorandum accompanying the Fair Work Bill 2008 states in respect of the immunity:

'FWA is an independent statutory agency. To enhance the independence of FWA Members and provide them with freedom to make decisions, clause 580 provides that an FWA Member has the same protection and immunity as a Justice of the High Court in performing his or her functions or exercising his or her powers, including immunity from suit and immunity against the disclosure of certain information.' [18]

[61] In respect of the scope of the 'protection and immunity' accorded to a Justice of the High Court, it is well-established that the 'protection or immunity extends to protection from compulsory disclosure of any aspect of the decision-making process'.[19]

[62] The DP Notes are documents that would tend to disclose an aspect of Deputy President Kovacic's decision-making process. The DP Notes were produced during the Deputy President's deliberative process about whether or not to grant the orders for production sought by Mr Kennedy in matter U2017/11691. Accordingly, we decline to make the order sought.

[63] However as noted in paragraph [42], subject to the Full Bench being satisfied as to its relevance, Mr Kennedy may himself give evidence in the appeal hearing of what was said in the Conference or about the conduct of the Conference that he considers evidences procedural unfairness to him.

[64] In addition, Mr Kennedy has made an informal request to the Full Bench for a copy of any notes taken by Deputy President Kovacic's Associate at the Conference.

[65] There is one document that falls within the scope of this request (Associate notes). The Associate notes are informal working notes taken during the Conference, which comprise notes of personal 'follow-up' activities and notes prepared to assist the Deputy President in his decision-making process. The Associate notes do not form part of the tribunal record.

[66] We do not propose to grant access to the Associate notes, as:

• we are not satisfied that the notes of personal 'follow-up' activities meets the threshold test of relevance to the matter before us; and

• any internal working notes taken to assist the Deputy President in his decision-making process would be hearsay evidence and of limited probative value. As noted at paragraphs [42] and [63], such evidence may be given by Mr Kennedy.

[67] For the reasons given, we do not propose to make the orders sought by Mr Kennedy in this matter.

[1] [2018] FWC 2689.

[2] Respondent's submissions in reply, 15 June 2018.

[3] Submissions in reply of Ms C Kernan, 15 June 2018.

[4] Outlines of Submissions in support of two of the Applications for orders for the production of documents to the Fair Work Commission, 25 June 2018 [Applications 1b and 4, and Application 1a]; and Outline of Submissions in support of the two Applications for orders requiring a person to attend before the Fair Work Commission, 25 June 2018 [Applications 2 and 3].

[5] Submissions in reply of Mr R Kennedy, 26 June 2018.

[6] Commonwealth House of Representatives, Explanatory Memorandum, Fair Work Bill 2008, [2310].

[7] Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19].

[8] Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19].

[9] Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6].

[10] [2018] FWC 1818.

[11] Mr Kennedy's Outline of Submissions, 25 June 2018 [Application 1a], Grounds of Application at [1] and [8].

[13]Akins v National Australia Bank [1994] 34 NSWLR 155 at 160, and see JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963, and Abigroup Contractors Pty Ltd v Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan [2012] FWAFB 8453.

[14] See also the Interim Decision at [20].

[15] Attached to Mr Kennedy's Outline of Submissions, 25 June 2018 [Applications 2 and 3].

[16] Mr Kennedy's Outline of Submissions, 25 June 2018 [Applications 1b and 4], Grounds of Application at [1] and [2].

[17] Mr Kennedy's Outline of Submissions, 25 June 2018 [Applications 1b and 4], Background to be relied upon at [33], reproducing his email to Deputy President Kovacic of 3 May 2018.

[18] Commonwealth House of Representatives, Explanatory Memorandum, Fair Work Bill 2008, [2254].

[19] See Herijanto v Refugee Review Tribunal (No.2) (2000) 170 ALR 575, 576 [4]; Winters v Fogarty [2017] FCA 51.

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