New South Wales Nurses and Midwives' Association v the Health Secretary on behalf of Western NSW Local Health District

Industrial Relations Commission (NSW)|2018-05-23

Teterycz [1997] NSWIRComm 159 Waind v Hill & National Employers' Mutual General Association Ltd [1978] 1 NSW LR 372 WorkCover Authority of NSW (Inspector Keelty) v The Crown in Right of the State of NSW (Police Service of NSW) (2000) 50 NSWLR 333 Texts Cited: NSW Health Managing Misconduct Policy Directive PD2014_042 Public Health System Nurses and Midwives' (State) Award 2017. Category: Procedural and other rulings Parties: New South Wales Nurses and Midwives' Association (applicant - respondent on the Motion)

The Health Secretary on behalf of Western NSW Local Health District (respondent - applicant on the Motion) Representation: Counsel: D Mahendra -applicant on the Motion M Gibian - respondent on the Motion

Proper name of the Respondent

The respondent named in the notification is the Western NSW Local Health District. The proper respondent is the Health Secretary on behalf of Western NSW Local Health District (the LHD or Respondent).

Background

The substantive matter before the Commission concerns a dispute notification filed pursuant to s130 of the Industrial Relations Act 1996 (the Act) by the New South Wales Nurses and Midwives' Association (the Association or Union) concerning certain work-related allegations against Ms Hannah Mines, a member of the Association.
Ms Mines is also Vice President of the Dubbo Base Hospital Branch of the Association.
The dispute notification filed on 18 January 2018, alleges in part that Ms Mines has been victimised following her active involvement in an industrial campaign "to improve nursing workloads and skill mix and work, health and safety at Dubbo Base Hospital".
Ms Mines suffers a medical condition that is exacerbated by working night shift. In that regard, the dispute notification cited the LHD's obligations under the NSW Health Policy and anti-discrimination legislation to accommodate employees with disabilities unless that arrangement causes an unjustifiable hardship to the employer.
The dispute notification also raises the Association's concern that the LHD has refused to provide it with a copy of the investigation report concerning the allegations against Ms Mines.
The Association alleges the LHD is in breach of the NSW Health Managing Misconduct Policy Directive PD2014_042 (the Policy Directive). A copy of the Policy Directive was provided to the Commission by the Association on 29 January 2018.
The relevant award is the Public Health System Nurses and Midwives' (State) Award 2017 (the Award).
In terms of remedy, the Association's dispute notification sought the following orders: 1. An Order that the LHD cease its victimisation of Ms Mines; 2. An Order that the LHD comply with its policy obligations set out in the Policy Directive; and 3. An Order that the LHD comply with clause 48 (vii) of the Award.
Directions for arbitration of the dispute in respect of the orders sought above were issued by the Commission on 26 February 2018. The Association contends that pursuant to the Policy Directive, the LHD is obliged to provide relevant employees with copies of materials considered by the decision-maker in determining an adverse finding against them, including a copy of the investigation report. The LHD has consistently refused the Association's request.
Clause 7.5.2 of the Policy Directive relevantly provides: 7.5.2 Seeking a response to adverse findings An adverse finding is a finding that is unfavourable to the staff member subject to a misconduct process, ie supports the allegation or apparent incident of misconduct. Adverse findings do not include inconclusive findings. Where the decision-maker is proposing to support an adverse finding against a staff member, the staff member must be so advised and given an opportunity to provide any additional information, or raise any concerns about an investigation process or the proposed findings to the attention of the decision-maker. In order to be able to provide a considered response, the staff member has a right to access relevant information that has been taken into consideration by the decision maker in making an adverse finding. The material should be sufficient to enable the staff member to understand fully any alleged misconduct, but need not include all information in the possession of the decision-maker, particularly where the interests of other members of staff may need to be protected or the material is not relevant to the findings. In certain circumstances (eg public interest disclosures, in respect of confidential information about third parties, or where there may be a potential risk to the wellbeing of the staff member or others) it may be appropriate to withhold some information. What information is withheld and for what reason should be appropriately recorded. A response from the staff member should be required within a reasonable time period (usually two calendar weeks unless otherwise agreed). Where the staff member's response provides additional information that has not been raised before and may materially affect the findings, the findings should be reviewed accordingly. In some instances further investigative action may need to take place. The staff member must also be provided with an opportunity to make submissions about any proposed disciplinary action. The response to proposed disciplinary action may be sought at the same time as the response to proposed adverse findings (after considering what may be appropriate action in line with Section 8). However, where the staff member's response affects the findings, the proposed action will need to be reviewed accordingly, and the staff member must be given an opportunity to respond to any revised proposed disciplinary action. (emphasis added)
Clause 48 (viii) of the Award concerns the "status quo": 48. DISPUTES … (vii) The status quo before the emergence of the issue must continue whilst these procedures are being followed. For this purpose 'status quo' means the work procedures and practices in place: (a) immediately before the issue arose; or (b) immediately before any change to those procedures or practices, which caused the issue to arise, was made. The Employer must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices.
The dispute was subject to compulsory proceedings before Commissioner Murphy on 6 February 2018. After hearing the parties, the Commissioner made the following Recommendation: That the decision maker in this matter, Ms Debbie Bickerton, General Manager, Dubbo Health Service, provide the notifier NSW Nurses and Midwives' Association, all of the material including documents and other communications which was considered by her in coming to the adverse findings against Ms Mines which are set out in the correspondence to Ms Mines from Ms Bickerton of 21 November 2017. Included in the material would be any investigation report or other document setting out the findings of the investigator, Ms Johnson and any statements or other communications provided to her from witnesses to the alleged incidents of committed by Ms Mines. Commissioner Murphy proceeded to issue a certificate of attempted conciliation pursuant to s 135(2) of the Act.
In correspondence dated 1 December 2017, the LHD advised Ms Mines that it was under no obligation to provide a copy of the investigation report. Rather, it was only obliged to provide materials sufficient to enable her to understand fully any alleged misconduct and need not include all of the information in the possession of the decision-maker.
The Association alleged that the LHD had breached clause 48 (vii) of the Award which concerns the operation of the "status quo". I note the meaning of "status quo" was dealt with exhaustively by Commissioner Constant in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2018] NSWIRComm 1079 and by the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025.

Notice to Produce

On 27 February 2018, the Association served a Notice to Produce on the LHD in the following terms: The Applicant requires you to produce, or make available for inspection, on or before 13 March 2018 the following documents for the purpose of evidence - 1. Originals or copies of all documents evidencing or recording or referring to statements made by staff members in relation to the allegations made against Hannah Mines as set out in the respondent's correspondence to Ms Mines during the period commencing by letter dated 27 October 2017 up to and including its letter dated 12 January 2018. 2. Originals or copies of all documents evidencing or recording or referring to the findings in relation to the allegations made against Hannah Mines during the period commencing in or around 27 October 2017 up to and including its letter dated 12 January 2018 including, but not limited to, an investigation report. 3. Originals or copies of all documents evidencing or recording or referring to the respondent's proposed action in relation to the allegations made against Hannah Mines as set out in the respondent's correspondence to Ms Mines dated 1 December 2017 and 12 January 2018. 4. Originals or copies of all documents evidencing or recording or referring to the respondent's proposed action in relation to the allegation made against Hannah Mines that she breached confidentiality as set out in the respondent's correspondence to Ms Mines dated 12 January 2018.
The LHD's solicitors wrote to the Association on 2 March 2018 in relation to the Notice to Produce in the following terms: The Notice to Produce is an abuse of process. It is seeking the very documents that are the subject of one of the questions the Association is seeking the Commission to make a determination on, being in essence: what material is the WNSWLHD required to disclose, or grant Ms Mines access to, in light of section 7.5.2 of the Managing Misconduct Policy Directive? Given the above, our client will not be complying with the Notice to Produce. Please confirm by no later than Friday, 9 March 2018 that the Association will withdraw the Notice. Finally, we consider the issuing of any Notice to Produce by the Association at this point in the matter to be premature.
By email dated 6 March 2018, the Association advised the LHD's solicitors that it intended to press compliance with the Notice to Produce.
By further email dated 14 March 2018, the LHD's solicitors informed the Association that its client would not be complying with the Notice and instructions had been received to file a Notice of Motion seeking an order from the Commission that the Notice to Produce be set aside. The Association was urged to withdraw the Notice so as to avoid both parties incurring costs.
The Association subsequently advised the LHD of its intention to press compliance with the Notice to Produce by email on 16 March 2018.

Notice of Motion

The Notice of Motion filed by the LHD on 10 April 2018 sort the following order: A. Orders that: 1. An order that the Applicant's Notice to Produce issued to the Respondent on 27 February 2018 (Notice to Produce) is set aside. 2. Such other orders as the Commission sees fit.
The Notice of Motion relied upon the following grounds and reasons: B. Grounds and reasons: 3. This is a matter in which the Applicant is currently seeking, as stated in its Form 4 Notification of an Industrial Dispute (Notification), orders that the Respondent: i. "cease its victimisation" of its member, Hannah Mines; ii. "comply with its obligations" as set out in the NSW Health Managing Misconduct Policy Directive (Policy Directive); and iii. comply with clause 48 (vii) of the Public Health System Nurses' & Midwives'(State) Award 2017 (Award). 4. The Respondent denies that it: i. has or is victimising Ms Mines; ii. has not complied with the Policy Directive; and iii. has not complied with clause 48 (vii) of the Award. 5. The Respondent seeks the orders in A above on the following grounds: a. the Notice of Motion is an abuse of process because: i. as a matter of jurisdiction, the Commission does not have power underss136 or 137 of the Industrial Relations Act 1996 (NSW) to order the Respondent (following any determination of the Notification) to provide the documents sought in the Notice to Produce, including the Respondent's investigation report; ii. requiring the Respondent to produce the documents in the Notice to Produce would, given (i) above, circumvent the limitations on the jurisdiction of the Commission in respect of the Notification. 6. In the alternative, the Respondent seeks the orders in A above on the ground that the Notice to Produce is an abuse of process for the following reasons: a. If the Commission does consider it has the power to make the order sought by the Applicant in paragraph (3)(ii) above, one question the Commission may need to determine is: what material is the Respondent required to disclose, or grant Ms Mines access to, in the light of section 7.5.2 of the Policy Directive? b. The documents sought in the Notice to Produce are the very documents the subject of that question. c. Requiring the Respondent to comply with the Notice to Poodduce would render nugatory the Commission making a determination on the question in paragraph 6(a) above. d. If the Applicant contends documents are relevant to the order it is seeking, as referred to in 3(i) above, the Notice to Produce is no more than a fishing expedition and in any case should be set aside for the above reasons.

The LHD

Counsel for the LHD submitted, inter alia, that the Association's submissions filed on 14 May 2018 "fundamentally change the relief the Union seeks in the substantive proceedings". Those submissions were filed on 17 April 2018.
Counsel submitted the Association now sought an order enforcing the victimisation provisions of the Act by ordering the LHD to rescind the adverse findings made in relation to Ms Mines in correspondence dated 7 December 2017 and 12 January 2018 and further order that it not implement the remedial action imposed.
The LHD submitted the Association also sought a determination that it had failed to comply with the Policy Directive by failing to provide Ms Mines or the Association with documentation and material relied upon in making the adverse findings against Ms Mines. Shortly stated, the LHD contends: 1. The Commission is not able to make orders with respect to victimisation in circumstances where "neither Ms Mines nor the Union have commenced proceedings under s 210 of the Act in respect of victimisation"; 2. To the extent there is any question as to the capacity of the Commission to interpret the Policy Directive, the Commission would conclude it is unable to do so; 3. It is clear that the Commission is able to deal with the substantive industrial dispute; and 4. The Commission lacks jurisdiction to grant the relief sought by the Association in relation to the dispute which has arisen between the Association and the LHD concerning the treatment of Ms Mines, a member of the Association. There is no power to order the LHD to comply with the Policy Directive.
In relation to its obligations under the Policy Directive, the LHD submitted it had complied with those obligations by providing sufficient information to Ms Mines so as to enable her to fully understand the allegations made against her.

Reasons in support of setting aside the Notice to Produce

A key issue in the substantive dispute is whether the LHD is required to provide the Association and Ms Mines with a copy of the investigation report in order to comply with the Policy Directive. The scope of documents sought in the Notice to Produce "are the very documents that are the subject of that question".
The LHD argued the Notice to Produce represents an attempt by the Association to circumvent the limitations on the Commission's jurisdiction in respect of the substantive relief sought. The objective of serving the Notice to Produce is to obtain a copy of the investigation report which the LHD has consistently refused to provide. That course of action pressed by the Association constitutes an abuse of process: … the documents that are being sought by the Association via the substantive dispute are one and the same as a documents that are being sought by the Notice to Produce. So in essence what the Notice to Produce will do is render a large part of this dispute futile because the Association will be able to obtain, in substance, the relief it seeks in the substantive matter. … … what the Union seeks to do via the Notice to Produce is circumvent the limitations on the Commission's jurisdiction by seeking production of a document that the Respondent says is not required to provide and in circumstances where is provision to the Union is the very subject matter of the dispute between the parties.
In correspondence dated 22 November 2017 and set out in Annexure D to the dispute notification, the Association sought a copy of the investigation report so as to enable Ms Mines to respond to the allegations that had been substantiated or partly substantiated against her.
The LHD contends that it is not required to provide an investigation report to the Association in order to comply with obligations under the Policy Directive. The LHD further contends that the Commission does not have power to order the LHD to provide the investigation report to the Association pursuant to ss 136 or 137 in the substantive proceedings.
The LHD further submitted that it was wrong for the Association to assert that the contents of the investigation report would have apparent relevance to the issues that arise in these proceedings. It is also difficult to envisage how the investigation report "will have any relevance to an issue in dispute between the parties": At best, the Union is engaging in a "fishing expedition" in order to ascertain whether the contents of investigation report will assist its case".
Against the backdrop of the Association's reframed case, the LHD contended that the investigation report together with the other material sought in the Notice to Produce has no relevance to the issues the Commission is required to determine. In that regard, the LHD submitted that the Commission should not, as a matter of procedural fairness, allow the Association to invoke the power set out in s 213 of the Act in circumstances where: 1. no application has been filed concerning the alleged victimisation of Ms Miles; 2. the Association has been given sufficient opportunity to articulate the relief it seeks on at least two prior occasions and has only now, in the context of the Notice of Motion proceedings and after both parties have filed their evidence and submissions in relation to the substantive matter, sought to rely on s 210 of the Act; 3. the matter has been conducted on the basis of the relief that has been articulated by the Association and it would be unfair to impose ss 210 - 213 on the LHD at this late stage particularly given the presumption created by s 210(2) of the Act; 4. despite its reliance on s 210 of the Act, the Association has not properly identified the contravention that it relies on to make the application; and in any event 5. the Association has not identified how the contents of the investigation report are likely to shed light on whether or not Ms Mines was victimised because she belongs to the Association. At best, the Association is "fishing for information" that it hopes will assist its case rather than seeking the investigation report for any legitimate forensic purpose.
The LHD also submitted that the asserted issue as to whether the findings made against Ms Mines and the remedial action proposed were, in any event, reasonable and justified does not arise on the issues to be determined by the Commission in respect of its compliance with the Award or the Policy Directive.
Moreover, whether the findings made and the remedial action proposed were reasonable and justified does not require the production of the investigation report: … even if this asserted issue did in fact arise, it would be a matter for the Commission to determine what the factual matrix was based on the evidence before it rather than relying on the contents of a factual report investigation (all of which would be hearsay in any event).
The LHD submitted that the Association has alleged it acted "unfairly" against Ms Mines. However, the determination of that particular issue together with the substantive issue concerning whether the LHD acted in breach of the Policy Directive does not require the production of the investigation report on the following grounds: 1. the primary dispute is whether or not the LHD provided sufficient information to Ms Mines to enable her to understand fully the alleged misconduct; and 2. it is the LHD's case that it is not required to provide a copy of the investigation report in order to meet its obligations under the Policy Directive. The LHD further contended that production of the investigation report "will not assist the Commission in anyway whatsoever": The real issues before the Commission, putting aside the claim for victimisation under s 210 of the Industrial Relations Act, is whether or not sufficient information was provided to Ms Mines, to enable her to fully understand the allegations put against her and if not, whether or not the respondent has failed to comply with the policy directive and secondly, whether or not the respondent has complied with cl 48 (vii) of the award. Now neither of those issues require the Commission to look at an investigation report that sets out the factual matrix of what occurred because realistically, if that factual matrix is relevant then the Commission is going to decide that for itself (and) not rely on some hearsay report as to what actually occurred.

Compliance with clause 48(vii) of the Award

The LHD contended the issue as to whether or not it had complied with clause 48 of the Award does not require production of the investigation report. Further, the Award defines "status quo" to include the work procedures and practices in place immediately before the issue arose. It does not prevent the progression of a matter in accordance with the work procedures and practices in place immediately before the issue arose.
The Association sought to invoke the status quo provisions under clause 48 on 5 December 2017. The LHD provided Ms Mines with its decision concerning the alleged misconduct and proposed remedial action on 7 December 2017. The Association subsequently alleged the LHD had breached the status quo. In response, the LHD contends the Association has misconstrued the obligations imposed under clause 48.

The Association

Counsel for the Association submitted the LHD had adopted an unusual and somewhat extraordinary position in refusing to provide the Commission or the Association itself with a copy of the investigation report and other documents it relied upon in making adverse findings and proposing remedial action with respect to Ms Mines, a Vice President of the Dubbo Base Hospital Branch of the Association.
Ms Mines commenced work at the Hospital in 2012 and became a delegate of the Association in 2015. She was elected Vice President of the Branch in 2016. During the course of 2017, Ms Mines was involved in an industrial campaign concerning workload and other health and safety issues that involved media appearances together with meetings with the local Member of the LHD moved Ms Mines to a position in the surgical unit which was in conflict with a medical restriction exacerbated by working night shift. In October 2017, Ms Mines commenced working in the palliative care unit of the Hospital and within a few weeks of that move, a number of unjustified disciplinary allegations were formally put to her.
The General Manager of the Dubbo Health Service, Ms Bickerton, wrote to Ms Mines on 21 November 2017 setting out certain findings against her following an investigation of the allegations. The Association wrote to Ms Bickerton on 22 November 2017 seeking a copy of the investigation report.
In correspondence dated 1 December 2017, Ms Bickerton afforded Ms Mines the opportunity to provide further information and additional comments in relation to the allegations prior to any final determination being made. That correspondence also informed Ms Mines that the LHD was under no obligation to provide her with a copy of the investigation report. Notwithstanding that refusal, Ms Bickerton was provided an overview of the relevant information that was taken into account in determining the investigation findings.
The Association wrote to Ms Bickerton on 5 December 2017 and stated: It is the position of the Association that our member is entitled to be provided the investigation findings and that (sic) particulars of the evidence used to support the allegations against our member. The Association also advised that it proposed to invoke the "status quo" provisions of the Award and Ms Mines would not be providing a response to the investigation findings "until the matter is resolved consistent with the procedures set out in clause 48".
In further correspondence dated 7 December 2017, Ms Bickerton informed Ms Mines that in her opinion, she had complied with the Association's request and in that regard, Ms Bickerton stated sufficient information concerning allegations had been provided so as to enable a response to be made. Ms Bickerton proceeded to set out a number of findings made following the investigation. Details of the proposed non--disciplinary remedial action contemplated by the LHD were also conveyed to Ms Mines.
The Association contended it had not reframed its case as characterised by the LHD. The dispute notification squarely raised whether the LHD had complied with the Policy Directive with respect to managing allegations of misconduct. Moreover, paragraph 1 under the "Contentions" section of the dispute notification clearly raised the issue of victimisation: it is the Association's contention that Dubbo Base Hospital's Director of Nursing, Jenny Johnson and its General Manager, Debbie Bickerton, are victimising Ms Mines because of her industrial activities. The dispute notification also sought an order that the LHD cease its victimisation of Ms Mines.
The Association submitted that the dispute notification raises issues as to whether Ms Mines was being victimised, whether there are grounds to establish the adverse findings that have been made against her and whether she was afforded procedural fairness given the failure of the LHD to comply with the Policy Directive. Moreover, although the dispute application frames the relief sought in terms of certain "orders", the Association sought the following relief: 1. An order enforcing the victimisation provisions of the Act by ordering that the LHD rescind the adverse findings made in relation to Ms Mines in the letters dated 7 December 2017 and 12 January 2018 and ordering that the LHD not implement the remedial action imposed in those letters; 2. In any event, a direction or recommendation that the LHD rescind the adverse findings made in relation to Ms Mines in the letters dated 7 December 2017 and 12 January 2018 and not implement the remedial action imposed in those letters; and 3. A determination that the LHD failed to comply with the Policy Directive by failing to provide Ms Mines or the Association with documentation and material relied upon in making adverse findings against Ms Mines.

Capacity of Commission to make orders with respect to victimisation

The victimisation of Ms Mines is not a new or fundamental change to the Association's case. Victimisation was clearly raised in the contentions and the orders sought in the dispute notification.
Contrary to the LHD's contention that the Commission is unable to make the orders sought with respect to victimisation in circumstances where "neither Ms Mines nor the Union have commenced proceedings under s 210 of the IR Act in respect of victimisation", the Association submitted that in dispute proceedings, s 136(1)(d) enables the Commission to make "any other kind of order it is authorised to make".
The Association submitted s136(1)(d) of the Act "facilitates the Commission, in dispute proceedings, making orders under any other provision of the Act, including orders under s213" where the Commission is satisfied it is necessary to enforce the victimisation provisions: Police Association v NSW Police (No 3) (2005) 144 IR 150 at [57] - [59]; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047 at [328] - [329]. Accordingly, the LHD's case is based on a technicality. The dispute notification clearly raises the issue of victimisation.

Capacity of Commission to interpret Policy Directive

The Association submitted there was no impediment to the Commission interpreting the Policy Directive which is mandatory on all public health organisations including the LHD. The Policy Directive is a "condition of subsidies" to Local Health Districts imposed under s127 of the Health Services Act 1997.

Does an "industrial matter" arise?

The Association sought to rely on the line of authority outlined in Re Dispute - Upper Hunter County Council (No 2) [1973] AR (NSW) 759; Re Coachmakers,&c, Rail (State) Award (1983) 5 IR 255; Monk v Dow Corning Australia Pty Ltd [1984] AR (NSW) 291; Monaro County Council v Electrical Trades Union of Australia, NSW Branch (1985) 14 IR 138; Re Crown Employees Land Officer (Department of Lands) Award (1992) 40 IR 120; and FMSCEU v Energy Australia (1999) 90 IR 311 to support the proposition that the Commission is able to deal with an industrial dispute and that an "industrial matter" arises in circumstances of a dispute as to the treatment of an individual employee.

Legitimate Forensic Purpose

The Notice to Produce does not lack legitimate forensic purpose. The question in relation to the exercise of the discretion to require production and permit inspection of the documents sought is whether they have "apparent relevance" to the issues arising in the proceedings: Waind v Hill & National Employers' Mutual General Association Ltd [1978] 1 NSW LR 372 at 385; WorkCover Authority of NSW (Inspector Keelty) v The Crown in Right of the State of NSW (Police Service of NSW) (2000) 50 NSWLR 333 at [29]; Coombs v Patrick Stevedores Holdings Pty Ltd (2001) 103 IR 417 at [52].
In circumstances where an objection is taken, the party issuing Notice must be able to show that it is at least "on the cards" that the documents sought will assist that party's case: Attorney General v Stuart (1994) 34 NSWLR 667 at 681; Crown Employees (Department of Corrective Services - Protection of Conditions of Employment) Award [2009] NSWIRComm 71 at [14]. Moreover, the documents sought must have the potential to "throw light on the issues": Portal Software v Bodsworth [2005] NSWSC 1115 at [25]; Becke v Commissioner of Police [2009] NSWIRComm 134 at [13] - [18]. These cases support the proposition that in circumstances where serious allegations of misconduct have been made, it is procedurally fair that the employee concerned is entitled to be given access to the source documents so as to enable that employee to answer those allegations.
The Association submitted it had raised three issues in the context of the dispute proceedings and whether there is a legitimate forensic purpose must be assessed by reference to the following issues: 1. whether the findings made and the action taken against Ms Mines involved victimisation; 2. whether the findings made and proposed action were, in any event, reasonable and justified; and 3. whether the LHD acted unfairly against Ms Mines and in breach of the Policy Directive
The Association also noted that the Commission has a role in resolving an industrial dispute which goes beyond mere inter partes litigation. The industrial dispute raises issues as to the true basis upon which the respondent made findings and proposed remedial action against Ms Mines and whether those findings and the remedial action contemplated "were properly arrived at".
Clearly, the investigation report and the other documents relied upon by the LHD are essential documents for the resolution of the dispute. In that regard, it is difficult to envisage how the Commission can resolve the dispute without the respondent producing the material upon which its decision-makers relied upon. The Association has a legitimate forensic purpose for seeking the production of the documents relied upon by the LHD in its investigation and there is no basis to set the Notice to Produce aside. In that regard, it sought to rely upon the decisions of the Commission in Becke and Commissioner of Police [2009] NSWIRComm 134 and Chapple v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1013.

Abuse of Process

The LHD has alleged that the Notice to Produce involves an abuse of process as the documents sought would render nugatory the determination of the dispute, whether it had complied with the Policy Directive.
The Association also dismissed the proposition that compliance with the Notice to Produce would render nugatory the determination of whether the LHD had complied with the Policy Directive. Rather, the Notice to Produce seeks to ensure the production of documents to facilitate the appropriate resolution and disposition of the proceedings by the Commission.
The documents sought by the Association are relevant to the issues in the dispute proceedings and are both necessary and appropriate for the fair resolution of the dispute. The Commission has the capacity to order the production of documents which are relevant to the determination of whether or not victimisation has occurred.
Clause 7.5.2 of the Policy Directive relevantly states that a staff member has "a right to access relevant information that has been taken into consideration by the decision maker in making an adverse finding". Absent the investigation report and the other documents sought in the Notice to Produce, the disciplinary processes are unfair.
The Association submitted the LHD has alleged that the materials sought in the Notice to Produce are irrelevant to the determination of the dispute because the question before the Commission would in any case be whether or not the allegations are substantiated on the evidence before the Commission.
The Association further asserted that the materials sought were necessary "to allow the proper testing of the evidence and the resolution of issues before the Commission, the Association and Ms Mines". Both the Association and Ms Mines would be denied procedural fairness if they were unable to properly test the assertions made in the respondent's material.
The full investigation report is required to enable the Association and Ms Mines to determine whether or not the materials so far provided to Ms Mines enable her "to fully understand any alleged conduct". Absent the investigation report, the Association and the Commission is unable to properly test the allegations.

Compliance with clause 48(vii) of the Award

The written submissions filed by the Association on 29 March 2018 stated it sought an order that the LHD complies with clause 48 (vii) of the Award.
The Association opposed any order for costs.

LHD reply

In reply, the LHD reconfirmed its position that the Commission does not have the power to order compliance with the Policy Directive. Moreover, the LHD contended that the Association had misread the Policy Directive in terms of what it requires.
The Commission clearly does not need "to examine all of the material that was before the decision-maker" in order to determine whether or not the LHD has complied with the Policy Directive. Rather, the Commission is required to determine whether or not the material that has been provided to Ms Mines in relation to the allegations "was sufficient to enable the staff member to understand fully any alleged misconduct".
The LHD submitted clause 7.5.2 of the Policy Directive provides discretion to the decision-maker not to provide all the information that may be available. The decision-maker is required to provide sufficient information so as to enable the staff member to understand fully any alleged misconduct. Relevantly, clause 7.5.2 also states: The material … need not include all information in the possession of the decision-maker, particularly where the interests of other members of staff may need to be protected or the material is not relevant to the findings. Accordingly, the materials that were not provided to Ms Mines are an irrelevant consideration. The Commission is therefore required to determine whether it has the power to order compliance with the Policy Directive and subsequently, whether or not the information and materials provided to Ms Mines were sufficient for her to understand fully the alleged conduct.
In relation to its contention that the relief sought in the Notice to Produce represents an abuse of process, the LHD submitted: In circumstances where the final relief being sought is production of documents, which is part of the final relief being sought by the Association, and the Commission doesn't in fact have power to make that order, then seeking to obtain that relief via a procedural process does constitute an abuse of process, because what they're seeking to do is circumvent limitations on the Commission's jurisdiction in respect of the very final relief that they seek, via a procedural process. And we say that constitutes an abuse of process.
The Association has made various submissions concerning the decision-maker's decision making process in an attempt to make those documents relevant to the issues that the Commission has to decide. However, given the relief being sought, there is no requirement for the Commission to engage in a fact-finding process in respect of the alleged misconduct because that is not the case being advanced by the Association.
The LHD submitted that in respect of the victimisation allegation, the Association contends Ms Mines has been victimised because she has not been provided with documents in accordance with the Policy Directive and there has been no compliance with clause 48 of the Award. Those matters do not require the Commission to engage in a fact-finding process in respect of the misconduct allegations. At best, the Association is engaging in a "fishing expedition" in order to determine whether the contents of the investigation report will assist its case. The Association has failed to identify how the contents of the investigation report are likely to shed light on whether or not Ms Mines was victimised because she belongs to a trade union.
The Association is not conducting this matter under the victimisation provisions of the Act. In the event the Association was conducting the matter under s 210 of the Act, Ms Mines would need to establish that she was treated differently to other employees involved in similar situations because of her Union activities. However, such a case by way of evidence has not been advanced by the Association.
In relation to the Association's objective to now engage s 213 of the Act, there was no mention of this proposal in the dispute notification nor was it contained in the outline of submissions filed in accordance with the Directions for arbitration of the dispute made on 26 February 2018 where Ms Mines and the Association were given the opportunity to clarify precisely what relief they were seeking: And we're being told section 213 now been engaged, which, as I said, fundamentally alters the way in which this case is now being run. It puts the onus on the respondent to demonstrate why Ms Mines was not treated any differently to any other staff member in respect of the process that was followed.
Ultimately, the determination of whether the LHD acted in breach of the Policy Directive does not require the production of the investigation report because the primary factual dispute is whether or not sufficient information was provided to Ms Mines to enable her to fully understand alleged misconduct. Further, the LHD is also not required to provide a copy of the investigation report in order to meet its obligations under the Policy Directive.
The LHD submitted the current matter is not an unfair dismissal case where an applicant challenges a particular disciplinary process. This matter concerns a dispute notification made pursuant to s130 of the Act where fairness concerning the outcome is not an issue for the Commission.
The dispute also concerns compliance with a policy directive and compliance with an award provision. Neither requires the Commission to make a determination about what occurred. Moreover, the dispute does not involve an administrative review of a decision-maker's decision such that the Commission is required to embark upon a process to examine what material was relied on by the decision-maker and whether that decision was valid or fair.

Consideration

The Association asserts that compliance with the Notice to Produce will provide Ms Mines with the investigation report and other related documents that are necessary for the fair disposition of the matter.
The primary test of whether a summons or an element of a summons is permissible is whether the documents summonsed are necessary for the disposition of the proceedings. The test is whether the evidence sought is not only relevant but necessary for the fair disposition of the proceedings: Arhil Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 556.
In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681, Hunt CJ observed: The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least 'on the cards' that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so.
In these proceedings, the Association bears the onus of demonstrating that the documents sought in the Notice to Produce are necessary and have a legitimate forensic purpose. For its part, the LHD contends that the Association has not discharged that onus.
The LHD further asserts that it is not required to provide a copy of the investigation report in order to comply with its obligations under the Policy Directive. Critically, the LHD also asserts the Commission does not have the power to order the LHD to provide the investigation report pursuant to ss 136 - 137 in the substantive proceedings.
During the course of proceedings, the parties referred the Commission to various authorities on the principles to be applied concerning application of s 136 of the Act. I have considered those authorities.

What material is the LHD required to disclose, or grant Ms Mines access to, in order to comply with section 7.5.2 of the Policy Directive?

The LHD asserts that it is not required to provide the investigation report to the Association in order to comply with its obligations under the Policy Directive.
Clause 7.5.2 of the Policy Directive states the following: 7.5.2 Seeking a response to adverse findings An adverse finding is a finding that is unfavourable to the staff member subject to a misconduct process, ie supports the allegation or apparent incident of misconduct. Adverse findings do not include inconclusive findings. Where the decision-maker is proposing to support an adverse finding against a staff member, the staff member must be so advised and given an opportunity to provide any additional information, or raise any concerns about an investigation process or the proposed findings to the attention of the decision-maker. In order to be able to provide a considered response, the staff member has a right to access relevant information that has been taken into consideration by the decision-maker in making an adverse finding. The material should be sufficient to enable the staff member to understand fully any alleged misconduct, but need not include all information in the possession of the decision-maker, particularly where the interests of other members of staff may need to be protected or the material is not relevant to the findings. …
Clause 7.5.2 of the policy directive needs to be read as a whole. It is clear that the plain and ordinary meaning of the phrase "need not include all information in the possession of the decision-maker…" contained in clause 7.5.2 of the Policy Directive imposes an absolute discretion upon the decision-maker to independently determine whether to provide or not provide a copy of any investigation report or associated documents to a staff member subject to an adverse finding following investigation into alleged misconduct. That phrase cannot be interpreted otherwise so as to impose a mandatory obligation on the LHD as asserted by the Association of behalf of Ms Mines.
Clause 7.5.2 of the Policy Directive simply imposes an obligation upon the LHD to provide materials relevant to the allegations so as to "enable the staff member to understand fully any alleged misconduct".
Ms Mines was provided with an outline of the allegations in correspondence dated 27 October 2017. Ms Mines provided a response on 3 November 2017. Following an investigation, certain findings in relation to the allegations were provided to Ms Mines in correspondence dated 21 November 2017. That correspondence set out the details of each allegation together with the grounds upon which the particular allegation was substantiated in part or in whole.
A response to the allegations was subsequently sought within 14 days. Shortly thereafter, the Association made a written request seeking a copy of the investigation report together with the information relied upon to substantiate the allegations for consideration prior to Ms Mines providing her response.
The LHD wrote to Ms Mines on 1 December 2017 to advise that it was under no obligation to provide a copy of the investigation report: Our organisation is under no obligation to provide a copy of the investigation report. However, I will provide you with an overview of relevant information that was taken into consideration to determine the proposed findings as follows …
The Association wrote the LHD on 5 December 2017 stating in part: It is the position of the Association that our member is entitled to be provided the investigation findings and that (sic) particulars of the evidence used to support the allegations against our member.
In further correspondence dated 7 December 2017, Ms Bickerton for the LHD advised Ms Mines that it had complied with the Association's request: In my view I have complied with the Association's request and you have in fact been provided with sufficient information to provide further comment in relation to the proposed findings. In the letter dated 21 November 2017, you were advised that the investigation into allegations against you had been finalised and details of the proposed findings were presented to you for further comment. More specific detail was then provided in the letter dated 1 December 2017 to you, which clearly identifies how the evidence resulted in the substantiation or partial substantiation of the allegations raised.
The Association wrote to Ms Bickerton on 12 December 2017 stating in part its view that the information provided by the LHD on 1 December 2017 "failed to provide any meaningful detail of the basis for the adverse findings against Ms Mines".
In correspondence dated 21 December 2017, the Association provided the names of staff that Ms Mines considered could support her version of events in relation to the specific allegations contained in the LHD's correspondence dated 1 December 2017.
The LHD wrote to Ms Mines again on 12 January 2018 and acknowledged the fact that she had proposed a number of potential witnesses who may be able to assist her case. The LHD also set out the investigation findings and informed Ms Mines that where necessary: … Further interviews have been undertaken and information provided by witnesses has been considered. The LHD also advised Ms Mines that it had decided to impose non-disciplinary remedial action.
I have carefully read all of the LHD's correspondence which sets out the various allegations put against Ms Mines. In my view, the allegation outlines given to Ms Mines provided adequate details and particulars so as to enable a reasonable person "to understand fully any alleged misconduct" put against them.
Ms Mines was afforded procedural fairness. The allegations as variously set out by the LHD were set out in clear and unequivocal language. That said, it is my view that the LHD has complied with the obligations imposed by the Policy Directive. The Association's interpretation of clause 7.5.2 of the Policy Directive is mistaken.
The plain and ordinary meaning of the words and phrases set out in clause 7.5.2 are clear. The Policy Directive simply imposes an obligation upon the LHD to provide materials relevant to the allegations so as to "enable the staff member to understand fully any alleged misconduct". There is no need to further interpret the Policy Directive as pressed by the Association.
Section 164(1)(b) of the Act gives the Commission power to compel production and inspection of documents subject to the Commission establishing the legitimate forensic purpose for which access to the documents is sought.
The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms: 11. The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case…'"
In establishing relevance, therefore, the first step for an applicant is to identify the issues to which the documents are relevant. The second step is then for the applicant to satisfy the Court or Commission that it is 'on the cards' that the documents sought will materially assist their case.
However, given the nature of the material provided to Ms Mines in the above correspondence, it is difficult to comprehend precisely how a copy of the investigation report would assist her to respond to the allegations or support the proposition that she has been victimised. In that regard, there is support for the proposition that the Association has engaged in a "fishing" expedition".
Moreover, on the material before the Commission, I am not comfortably satisfied that the Association has identified and articulated how possession of the investigation report and other materials sought would support the victimisation allegations. In the absence of certainty, the Notice is speculative and as such, must lack legitimate forensic purpose.
In Alister v R (1984) 154 CLR 4, 1984] HCA 85, it was determined that fishing expeditions "can never be allowed". It is not legitimate to subpoena documents if the party issuing the subpoena is trying to obtain documents in order to determine whether or not they may assist that party's case: Baladjam at [18] citing Attorney-General for (NSW) v Chidgey [2008] NSWCCA 65 at [64], [68] and [81]-[86]. I consider this matter is such a case. It follows I have determined that the LHD has complied with its obligations under the Policy Directive.

Does the Commission have power to order compliance with the Policy Directive?

The dispute notification sought an order that the LHD comply with the obligations set out in the Policy Directive. Sections 136 and 137 provide:

136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Note: Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126). 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note: See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals).

The Dictionary to the Act defines industrial action in the following terms: "industrial action" means a strike by employees or a lock-out by an employer, and includes: (a) a practice relating to the performance of work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of work, or (b) a ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work, that is adopted in connection with an industrial dispute, or (c) any failure or refusal in connection with an industrial dispute to attend for work or to perform work, but does not include any action taken by employees with the agreement of their employer or any action taken by employers with the agreement of their employees.
In the context of an industrial dispute, s 136(1)(d) is a facilitative provision which allows the Commission to make orders that the Commission is authorised to make under the Act. In that regard, orders such as those providing reinstatement of a dismissed employee under s 89, reinstatement of an injured employee under s 94 or enforcement under s 213: Police Association v NSW Police (No 3) [2005] NSWIRComm 243.
In addition to the contention that it is not required to provide the Association with a copy of the investigation report in order to comply with the Policy Directive, the LHD also contends the Commission does not have the power to order the production of the investigation report to the Association pursuant to s 136 or s 137 of the Act in the substantive proceedings. Against that backdrop, the Association's request seeking a copy of the investigation report, first rejected as early as 1 December 2017, represents an abuse of process.
It was the LHD's case that no remedy falls under s 137 of the Act as no industrial action was being taken by the Association in connection with this particular dispute.
In Notification under section 130 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union of a dispute with the Sydney City Council and others [2003] NSWIRComm 223, Boland J considered the Union's contention that the Sydney City Council (the Council) was engaged in industrial action against the Union and its members.
It was further contended by the Union that s 137(1)(a) of the Act provided the Commission with power to make dispute orders, including interim dispute orders, in the form set out in its application. In the alternative, the Union submitted that orders were available under s 136(1)(d) or, in the further alternative, the Commission could make directions under s 136(1)(a) or take action under s 136(2).
The industrial dispute before the Commission concerned the Council's alleged refusal to protect conditions of employment for employees transferring from Leichhardt and South Sydney Councils consequent upon the provisions of the Local Government Amendment (Amalgamations & Boundary Changes) Act 1999 and a Proclamation made under the Local Government Act 1993.
The Council opposed the Union's application on jurisdictional grounds and pressed that the Commission had no power to make the orders sought under s 136 or s 137 of the Act or any other provision of the Act. In support of that proposition, the Council submitted that as there was no industrial action, no orders were available under s 137. Moreover, the nature of the orders sought by the Union were not orders of the kind authorised by s 136(1)(d).
The Council further argued that it would be fruitless for the Commission to make "any further recommendations" pursuant to s 136(1)(a) and submitted that s 136(2) of the Act referred to actions and not orders that the Commission might take.
On 10 July 2003, the Union filed an application for seeking the following orders: 1) The Council of the City of Sydney together with employees and agents of the Council be restrained from changing the terms and conditions of employment of employees transferring to the Council of the City of Sydney from South Sydney and Leichhardt Councils including the practice of job and finish. 2) That the Council of the City of Sydney together with the employees and agents of the Council cease the docking of transferred employees' wages where job and finish arrangements are worked. 3) That the Council of the City of Sydney together with employees and agents of the Council cease to give unlawful and unreasonable directions to employees concerning the performance of duties falling outside current job and finish arrangements, including: a. Directions requiring employees transferred from South Sydney Council to tip a second garbage load; b. Directions requiring employees to wash trucks at the conclusion of their garbage runs; c. Directions requiring employees to attend to additional "dumps" beyond those ordinarily attended to during the employees' garbage runs; d. The requirement for employees to alter shift commencement times from 5.30am to 6.00am; e. The requirement for employees to remain on duty until 2.30pm. f. The requirement for employees to take unpaid meal breaks. g. The requirement for employees to make up sulo bins and other miscellaneous duties at the conclusion of the employees' runs. 4) That the Council of the City of Sydney together with employees and agents of the Council be restrained from restructuring the garbage runs for transferred employees and maintain the existing trucks, plant and equipment within the existing garbage runs. 5) The abovementioned orders be made against the Council of the City of Sydney together with its employees and agents including General Manager Robert Domm, Manager Employee Relations Christopher Saunders, Director Living City Services Gary Harding, Manager Waste and Cleansing Services Les Simons, Waste Services Coordinator Peter Cheney, Team Leader John Mousley, Dave McDonald and Peter Calarco. 6) These orders remain in force until 8 May 2006. 7) The Union makes application for interim orders to be effective immediately pending a full hearing.
His Honour ultimately refused the application to make the orders sought by the Union and at [16]-[17] and [19]-{20} stated: 16 Even if the City Council's actions could be considered to be industrial action, the orders sought by the USU are not orders that might be made under s 137 of the Act. In shorthand terms, the orders sought were in the following terms: Order 1: An order restraining the Council, etc., from changing terms and conditions of employment. Order 2: An order that the Council, etc., cease docking wages. Order 3: An order that the Council, etc., cease giving unlawful and unreasonable directions to employees. Order 4: An order restraining the Council, etc., from restructuring garbage runs. Order 5: That the orders be made against the Council and certain specified persons. Order 6: That the orders remain in force until 8 May 2006. Order 7: That the Commission make interim orders. 17 With the exception of Orders 5 and 6, which may be regarded as merely incidental or ancillary, none of the orders sought are orders of the kind specified in s 137. See Transport Workers' Union of Australia, New South Wales Branch and Chubb Security Services Ltd [2001] NSWIRComm 248. See also Notification under s 130 by the NSW Department of Community Services of a dispute with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales re work bans [200] (sic) NSWIRComm 66 regarding interim orders. … 19 The Commission as constituted has no power to make the orders of an injunctive nature sought by the USU pursuant to s 136(1)(d) of the Act. As to the alternative of making a recommendation under s 136(1)(a), the City Council has already demonstrated that it is not prepared to comply with such a recommendation. Consequently, I do not propose to indulge in the futility of making a further recommendation and see it rejected. (emphasis added) 20 The application by the USU for orders in this matter is refused.
I consider the nature of the orders sought in these particular proceedings is not dissimilar to the kind of orders sought by the City Council and ultimately declined by Boland J.
The LHD further submitted that it would be perverse for the Commission to make an order requiring compliance with the Association's interpretation of the Policy Directive in circumstances where such a Policy Directive is "merely an expression of policy that has no legally binding force".
The question whether a policy directive had legally binding force was considered by the Full Bench in Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111. At [46] - [48], Boland J, in a separate judgment, considered whether a policy directive had legally binding force: 46. There was no evidence that the Policy Directive was made pursuant to s 116A (1) of the Health Services Act . Its purpose in being promulgated was to act as a condition of subsidy for public health organisations. As s 127(5) of the Health Services Act provided, if the condition was breached the Director-General could make such recommendations to the Minister as the Director-General thought fit concerning any action to be taken against the public health organisation concerned or any officer or employee of the organisation. There is no indication that any decision or action in contravention of the Policy would be ultra vires or otherwise invalid. It does not seem to me in those circumstances, that the Policy Directive had statutory force. 47. It may be noted that in contrast with the version of the Health Services Act that applied at the relevant time, the current Act provides in s 122: The Director-General has the following functions under this Act: ... (f1) to give directions to statutory health organisations, including (subject to section 121E (3)) directions relating to the employment of NSW Health Service senior executives, ... 48. In my opinion, the Policy Directive is merely an expression of policy that has no legally binding force. In those circumstances, the contract between the employer and the employees is not affected by any inconsistency with a statutory provision. {emphasis added).
It is mandatory that the LHD applies the terms of the Policy Directive in full. However, as set out above, there is no obligation to provide a copy of the investigation report to employees or their Union. As I also determined above, I consider the LHD has provided material "sufficient to enable the staff member to understand fully any alleged misconduct".
Notwithstanding its mandatory nature, I agree with the findings of the Full Bench that a policy directive "is merely an expression of policy that has no legally binding force". I have considered all material advanced by the parties and determined the Commission does not have the power to make the orders sought by the Association pursuant to s136(1)(d).

Has the LHD victimised Ms Mines?

The Association has sought an order under s136(1)(d) of the Act enforcing the victimisation provisions contained in s213 by ordering the LHD to rescind the adverse findings made in relation to Ms Mines in correspondence dated 7 December 2017 and 12 January 2018. In addition, the Association also seeks an order that the LHD not implement the remedial action proposed in that correspondence.
The Association has sought to rely upon a reference to victimisation set out in the contentions listed in the dispute notification. However, no application for an enforcement order pursuant to s 213 of the Act has been made.
Section 213(3) of the Act relevantly provides that a victimisation application must be made within 21 days after the contravention. However, the Commission has discretion to accept an application made out of time in certain circumstances.
It would appear that a question for determination by the Commission being pressed here by the Association through the orders sought (and the Notice to Produce) is relevantly whether or not the LHD's decision to withdraw a letter of offer for a particular position was made because Ms Mines was a member or an official of the Association or an elected representative of employees as set out in s 210(1)(a) amounts to victimisation contrary to s 210 of the Act. A further ground for the withdrawal of the letter of offer may arise under s 210(1)(i) if workplace health and safety complaints formed part of the Association's nursing workloads industrial campaign during March - July 2017.
Section 210 relevantly provides that once an employee (or prospective employee) has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation set out in s 210(1) of the Act, it is then presumed that the relevant employee or prospective employee was victimised unless that presumption is rebutted by the employer or industrial organisation as provided by s 210(2). The requirement of the employer to rebut the presumption is a reason for the 21 day time limit.
In arbitration, rebuttal would require the LHD to provide evidence that on the balance of probability, Ms Mines' activities as a delegate and official of the Association and/or her work, health and safety activities were not "a substantial and operative cause of the detrimental action" in the form of withdrawal of letter of offer, the making of adverse findings through the investigation process and the proposed remedial action.
The word "victimise" is not defined in the Act. In Public Service Association of New South Wales v Teterycz [1997] NSWIRComm 159, the Full Bench considered the meaning of the term "victimisation": ...the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment".
There is no direct evidence or testimony from Ms Mines before the Commission in these proceedings outlining in any detail the particulars related to the alleged victimisation. Nor is there any direct evidence or testimony from the LHD, Ms Bickerton or other decision maker to rebut the presumption contained in s 210(2) of the Act. Absent that direct evidence and a valid application under s 213, the contention that Ms Mines has been victimised is at best speculative.
The decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 dealt with the general protections provisions of the Fair Work Act 2009 (Cth). At [45], French CJ and Crennan J considered the statutory presumption contained in s 361 of that Act and stated: This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s.361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
Of course, the LHD is simply unable "to displace the statutory presumption" in my view when confronted with the scant reference to victimisation set out in the dispute notification. Moreover, it would also be procedurally unfair to force the LHD to satisfy the Commission that on the civil standard of proof, Ms Mines' conduct "was not a substantial and operative cause of the detrimental action" in the absence of a valid application made pursuant to s 213 of the Act where the particulars concerning the claim are clearly identified and articulated.
Broad allegations put by the Association in its case outline and submissions lack particularity. Moreover, there is no evidence before the Commission to support the proposition that Ms Mines has been treated differently to other employees because of her Association activities.
The operation of s136 of the Act is invoked by the present industrial dispute before the Commission. Section 136 provides that the Commission may make a recommendation, give directions or make another order of a kind that the Commission is authorised to make under the Act. In that regard, the authorities support the proposition that "any other order the Commission is authorised to make" means an order of the kind specifically set out in the Act.
I do not consider Parliament intended s136 to be used to "order an employer not to carry out a threat to victimise an employee or not to make any further such threat" in circumstances where victimisation is clearly dealt with by the comprehensive and express code contained in ss 210-213.
In circumstances where the Association has not relied on ss 210-213 of the Act at any stage of the proceedings until now, it should not now be permitted to rely on the victimisation provisions given the time limitations involved in such proceedings and, the fundamental manner in which it changes the current dispute proceedings including, for example, the presumption that exists under s 210(2) in proceedings that would not otherwise apply in the context of a s 130 dispute.
I have carefully considered the submissions of the parties with respect to the allegations concerning victimisation. On an analysis of that material, there is no direct evidence that the LHD has victimised Ms Mines as alleged by the Association. There are no grounds currently before the Commission to support the orders sought by the Association in relation to victimisation.

Conclusion

The Association is seeking the exercise of the Commission's coercive powers to compel the LHD to comply with the Notice to Produce.
Section 164(1)(b) of the Act provides the Commission power to compel production and inspection of documents subject to the Commission establishing the legitimate forensic purpose for which access to the documents is sought. It must be 'on the cards' that the documents will materially assist in the case.
The Association asserts the Notice to Produce has legitimate forensic purpose in relation to the contested issues in the substantive proceedings. It further asserts the investigation report and other documents sought in the Notice to Produce are necessary for Ms Mines to defend the allegations and quash the proposed remedial action. A summons or notice to produce which does not serve a legitimate forensic purpose is liable to be set aside.
A summons or notice must not be drafted using unnecessarily wide or general terms. Rather, it must specify, with reasonable particularity, the documents to be produced. They are not the vehicle for "fishing" for evidence or documents. In this matter, the Association must be able to show that it is at least "on the cards" that the documents sought will materially assist Ms Mines' case.
The Notice to Produce calls for the "Originals or copies of all documents evidencing or recording or referring to" with respect to four classes of materials sought. On one view, it does not state with reasonable particularity the documents which are to be produced.
The LHD has challenged the Notice to Produce on a number of grounds including it lacks legitimate forensic purpose and represents an abuse of process in the circumstances of this particular case where the investigation report and the other materials sought are: …the subject of one of the questions the Association is seeking the Commission make a determination on, being in essence: what material is the WNSWLHD required to disclose, or grant Ms Mines access to, in the light of section 7.5.2 of the Managing Misconduct Policy Directive?
Where abuse of process and a lack of legitimate forensic purpose is claimed, the onus falls on the issuing party to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. There are two aspects to the requirement that a notice to produce must be issued for a legitimate forensic purpose: 1. First, it insufficient for a party seeking production to merely establish that the documents sought are, or may be relevant. Simply because a document is relevant does not mean it necessary for the fair disposal of a particular matter. The party seeking production is not entitled to have access to such documents simply to see whether the documents assist their case; and 2. Second, the Court or Commission must have some concrete ground for believing that the documents sought will materially assist the case of the party issuing the summons or notice to produce which takes the case beyond a mere fishing expedition. It is neither permissible nor legitimate to use a summons or notice to produce for the purpose of discovery.
In conclusion and having considered all the materials advanced by the parties, I have determined the Association has failed to demonstrate that it is "on the cards" that the documents sought in the Notice to Produce will materially assist Ms Mines. The Association has also failed to demonstrate a legitimate forensic purpose for the forced production of those materials. It follows that I have also determined the investigation report and other documents sought by the Association are neither relevant nor necessary for the fair disposition of proceedings. Ms Mines has, consistent with clause 7.5.2 of the Policy Directive, been provided with sufficient relevant information to respond to the allegations and proposed remedial action as enunciated above in Arhil.

Orders

In consideration of the reasons set out above and all the material before the Commission, I make the following orders: 1. The proper respondent is the Health Secretary on behalf of Western NSW Local Health District; 2. The notice of motion filed by the LHD on 10 April 2018 is granted; 3. The Notice to Produce served on the LHD by the Association and dated 27 February 2018 is set aside; and 4. Costs of the motion are reserved. J D Stanton Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2019

[1997] NSWIRComm 159

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (2)

Cases Cited (26)

Cited By (2)