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[54]
[2025] FWCFB 77
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-04-15
Original judgment source is linked above.
s.604 - Appeal of decisions
Construction, Forestry and Maritime Employees Union
Appeal from order for production made by Commissioner Lim in Matter No. C2024/8398 - Documents required to be produced included commercial contracts - Whether order for production disproportionate or required production of irrelevant documents - Confidential and commercially sensitive documents - Whether error in exercise of discretion to order production of documents - Principles to be applied - Whether to grant permission to appeal with respect to a discretionary decision as to a matter of practice and procedure - No arguable error in exercise of discretion - Permission to appeal refused.
[1] This matter is an application for permission to appeal and, if permission is granted, an appeal concerning one part of an order for production made by a member of the Fair Work Commission (the Commission) under s 590(1) and (2)(c) of the Fair Work Act 2009 (Cth) (the Act). The order for production requires by OSM Australia Pty Ltd to produce copies of its contracts with clients to the Commission.
[2] OSM is a labour hire company which provides crewing services for clients in the maritime industry. It supplies workers, including in the classifications of chief integrated rating, integrated rating, chief cook, cook, chief caterer, caterer, chief steward and steward, to perform work on vessels throughout Australia. The employee subject of the present dispute is covered by an enterprise agreement known as the OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the Agreement).
[3] The CFMEU, which represents employees of OSM, has referred a dispute to the Commission under 10.1 of the Agreement. The dispute concerns a member of the CFMEU, Beau Harkness, who is employed by OSM. Mr Harkness is employed on a casual basis in the position of steward. The dispute notification records that, on 22 October 2024, Mr Harkness requested the conversion of his employment from casual to permanent under clause 12.4 of the Agreement and that OSM had rejected the request. The CFMEU maintains that Mr Harkness meets the requirements for conversion to permanent employment.
[4] The requirements for conversion from casual to permanent employment are found in clause 12.4 of the Agreement which relevantly provides:
(a) A Casual Employee who has worked regularly for the Employer for three (3) consecutive swings cycles in the previous twelve (12) month period may apply for permanent employment with the Employer. Subject to clause 12.4 (b), an Employee will be granted permanency and will commence as a permanent in the next pay cycle.
(b) If a Casual Employee makes a request for permanency under clause 12.4 (a), the Employer will grant the Casual Employee permanent employment unless converting the Casual Employee to permanent employment would result in redundancies occurring within the proceeding twelve (12) months.
[5] The dispute was allocated to Commissioner Lim. By letter dated 6 December 2024 addressed to the Commissioner's associate, OSM responded to the dispute notification. The correspondence described OSM's position in the following terms:
9. It is correct that the Respondent did not grant conversion to permanent employment to Mr Harkness.
10. The Respondent does not agree that there is sufficient ongoing work to justify conversion to permanent employment for Mr Harkness.
11. Clause 12.4(b) of the Agreement states that if a Casual Employee makes a request for permanency under clause 12.4 (a), the Employer will grant the Casual Employee permanent employment unless converting the Casual Employee to permanent employment would result in redundancies occurring within the proceeding twelve (12) months.
12. Based on the schedule of ongoing work, OSM's position after review, making Mr Harkness permanent would mean there is significant potential for his employment to be made redundant within the proceeding twelve months.
[6] The response annexed earlier correspondence, dated 31 October 2024, which notified Mr Harkness that his request for conversion to permanent employment had been refused. The correspondence gave the following reasons for the refusal of the request:
We have considered the matters you raised in your request and assessed against our upcoming work. The outcome is that the company has not granted your request for Casual conversion.
The decision is made as we are unable to commit to employment on an ongoing basis due to the nature of work that OSM has with its clients. For example, OSM contracts with clients are not on-going and depend largely on the scopes of work it obtains from the client (who in term cannot guarantee it has ongoing work for OSM).
Thank you for your request for conversion. We considered your suggestions but were not able to accommodate it at this time. This means your status as a Casual employee remains unchanged. OSM will continue to review its scopes of work and where there is any opportunity to create more Permanent employment opportunities in the future.
[7] As will be apparent from the correspondence, OSM determined that it was entitled to refuse the request because it was unable to commit to employment on an ongoing basis due to the nature of OSM's work for its clients, including that OSM's contracts with its clients are not ongoing and depend on the scope of works it obtains from its clients.
[8] On 9 January 2025, the CFMEU filed an application asking the Commissioner to issue an order for production under s 590(2)(c) of the Act. Section 590 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:
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; ...
[9] The reasons given by the CFMEU for seeking the documents described in the draft order attached to the application were as follows:
One of the questions for arbitration in the main matter is as follows:
Would converting Mr Harkness' employment from casual to permanent from the next pay cycle after 22 October 2024 result in redundancies within the proceeding twelve (12) months?
By obtaining copies of the documents sought, the FWC will be better equipped to answer the above question. Further, the Respondent relies heavily on their client contracts and limited upcoming work as being a primary factor in prevention of permanent employment for Mr Harkness, however, have not provided any evidence to the FWC to affirm their position.
[10] On 15 January 2025, OSM responded to the application. The OSM opposed the order for production in whole. Among other things, OSM said:
The Respondent opposes the application for an order for production of OSM contracts it has with its clients that cover the period commencing 22 October 2024 to 1 December 2025. Concerns include (but aren't limited to):
[11] On 22 January 2025, the Commissioner conducted a conference in relation to the order for production application.
[12] On 23 January 2025, the Commissioner issued an order for production which identified three categories of documents. Paragraph [1] was as follows:
[1] Copies of OSM contracts it has with its clients that cover the period commencing 22 October 2024 to 22 October 2025.
[13] Paragraph [4] of the order for production permitted certain redactions to be made to documents produced in the following terms:
[4] The above documents may be redacted to remove any confidential or commercially sensitive information. However, any reference to any of the below matters must not be redacted:
(b) Classifications that will be engaged for any relevant scope/s of work;
[14] On 30 January 2025, OSM applied for the Commissioner to vary the order for production and replace paragraph [1] with a different form of order as follows:
[1] Copies of OSM documentation which are not confidential or commercially sensitive that relate to the reasons for refusing Mr Harkness request for casual conversion, specifically:
(a) internal documentation relating to forecasted work for the position of Stewards;
(b) job advertisements and expressions of interest for the position of Stewards; and
(c) publicly available information pertaining to project scope tender awards indicating the anticipated duration of engagement of vessels.
[15] The Commissioner conducted a conference on 6 February 2025 in relation to the application to vary the order. On the same day, the Commissioner issued an amended order for production which extended the time for compliance with the order to 20 February 2025 but otherwise left the order in the same terms.
[16] OSM filed a notice of appeal on 20 February 2025. OSM seeks to appeal only with respect to paragraph [1] of the order for production. For the reasons that follow, permission to appeal should be refused.
[17] OSM relies on a single ground of appeal. OSM contends that the Commissioner "failed to apply the correct legal test when determining the appropriate scope of paragraph 1". The notice of appeal asserts that this alleged error was a material because the order in paragraph [1]:
(a) was broader than was reasonably necessary given the nature of the issue in dispute between the parties;
(b) requires the provision of commercially sensitive and confidential material which was not relevant to the dispute between the parties;
(c) requires the provision of commercially sensitive and confidential material to a union with whom OSM has a complex industrial relationship;
(d) therefore would create irreparable prejudice to OSM.
[18] OSM's submissions elaborated on this ground. In short, OSM submits that paragraph [1] of the order for production requires the production of documents beyond what could conceivably be relevant to the dispute and documents containing confidential and commercially sensitive information such that prejudice will be caused to its commercial interests if the documents are disclosed.
[19] The CFMEU submits that OSM's contracts are central to the dispute because the contracts will cast light on upcoming work which is scheduled and the question of whether converting Mr Harkness to permanent employment is likely to result in redundancies for the purposes of clause 12.4(b) of the Agreement. The CFMEU sought to rely on a witness statement of George Gakis, Assistant State Secretary of the Western Australian Branch of the Maritime Union of Australia Division of the CFMEU, on the appeal. The witness statement provides some background to the dispute as well as the position that the CFMEU intends to advance in the proceedings. The witness statement of Mr Gakis was admitted, without objection, as further evidence on appeal for the purposes of s 607(2) of the Act.
[20] The ordinary position under s 604(1) of the Act is that a person aggrieved by a decision of the Commission may only appeal with permission. However, when dealing with a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is acting as a private arbitrator. The nature function to be undertaken by the Commission is determined by the agreement of the parties, including the availability and nature of any appeal. The parties may agree that there will be a right of appeal or remove or modify the requirements ordinarily applicable to an appeal under s 604 of the Act, including the need for permission to appeal to be obtained.[1]
[21] In this case, no party suggested that the Agreement modified the requirement imposed by s 604(1) of the Act to seek permission to appeal. In that respect, clause 10.4 of the Agreement provides:
10.4 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause, but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC.
[22] We agree that the notation that a decision of a single member of the Commission "can be appealed to a Full Bench" is to be understood as a reference to, and as adopting, the mechanism for appeal available under the Act, including the requirement to seek permission under s 604(1). Where permission to appeal is required, s 604(2) provides that the Commission must grant permission if it is satisfied it is in the public interest to do so. Otherwise, the Commission has a general discretion as to whether to grant permission to appeal.
[23] This appeal concerns a discretionary decision of an interlocutory nature to order a person to produce documents under s 590(1) and (2)(c) of the Act for the purpose of informing the Commission in relation to proceedings before it. Courts and tribunals have consistently said that caution is to be exercised before leave (or permission) to appeal is granted with respect to decisions concerning matters of practice and procedure. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177, for example, Gibbs CJ, Aickin, Wilson and Brennan JJ cited with approval the statement of Sir Frederick Jordon in Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 where his Honour said:[2]
... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice ...
[24] The approach of the courts was recently summarised by the New South Wales Court of Appeal in State of New South Wales v Meredith [2024] NSWCA 287:[3]
In brief, leave to appeal will ordinarily not be granted from a decision involving a matter of practice and procedure unless the application raises an issue of principle or the applicant can demonstrate that a significant injustice is likely to result if leave is not granted. The fundamental reason for this approach is that "unless appellate courts exercise restraint in interfering with decisions of trial judges on matters of practice and procedure, the result will be excessive delays, expense and uncertainty in the conduct of litigation" (see Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19]). As Bell P observed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [6] an "application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces the high hurdles which have been referred to consistently by this Court".
[25] The Commission has similarly said that appeals against interlocutory procedural decisions of a discretionary nature are to be deprecated and will rarely be the subject of a grant of permission to appeal.[4]
[26] The reasons for the reluctance of courts and tribunals to grant permission or leave to appeal from discretionary decisions on matters of practice and procedure are not difficult to discern. Interlocutory appeals will almost always delay the resolution of proceedings, cause additional cost and vexation for the parties and occupy more of the time and resources of the court or tribunal concerned. The Commission, in particular, is required to perform its functions in a manner that is, among other things, "fair and just" and "quick, informal and avoids unnecessary technicalities".[5] Compliance with that instruction will often favour refusal of permission to appeal with respect to an appeal from a procedural decision.
[27] That position is not, of course, absolute. There will be instances in which it is appropriate for permission to appeal to be granted with respect to an interlocutory decision of a procedural nature. The question in any case will be whether the Commission is satisfied it is in the public interest to grant permission to appeal for the purposes of s 604(2) of the Act or that there are otherwise grounds justifying permission to appeal under s 604(1).[6] Permission to appeal might be justified where the procedural decision subject of the appeal raises issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable.[7]
[28] We are not satisfied it is in the public interest to grant permission to appeal in this matter, or that there is any other reason why permission to appeal should be granted. As we have observed, OSM seeks permission to appeal only with respect to paragraph [1] of the order for production which requires production of copies of OSM's contracts with its clients. For the reasons that follow, the grounds of appeal do not raise any issue of general principle or public importance or an arguable case of appealable error in the decision of the Commissioner to issue the order for production.
[29] First, the sole ground of appeal alleges that the Commissioner failed to apply the "correct legal test" when determining the scope of paragraph [1] of the order for production. In that respect, OSM refers to authority which suggests that the exercise of the power under s 590(2)(c) of the Act to require a person to provide copies of documents or records, or to produce any other information to the Commission, will be guided by the principles adopted by courts in civil proceedings when issuing subpoenas.[8] OSM emphasises the significance of relevance and particularity to the exercise of the discretion as to whether to require the production of documents in connection with Commission proceedings.
[30] The Commission has commonly said that, in exercising the discretion to require the production of documents or information, it will have regard to and be guided by the approach of the courts in civil proceedings when compelling a person to produce documents, records or other things.[9] However, having regard to or deriving guidance from the principles applied by the courts in other contexts does not suggest that those principles represent rules which are required to be followed. Ultimately, the exercise of the power under s 590(1) and (2)(c) to require a person to provide documents or records, or other information, turns on an assessment of whether the Commission considers that an appropriate method of informing itself in relation to a matter before it. In Woodside v The Australian Workers' Union [2022] FWCFB 168, for example, the Full Bench said:
[25] Second, contrary to Woodside's submissions, its appeal does not raise any genuine issue of jurisdiction. The power conferred by s 590(2)(c) to require the production of documents to the Commission is entirely discretionary in nature and is unfettered by any requirement to take any particular matter into account. Section 590(2)(c) itself is an incident of the Commission's general power under s 590(1) to inform itself in relation to any matter before it in such manner as it considers appropriate. It is well established that, in the exercise of the discretion, the Commission will be guided by the practice followed by courts in civil proceedings when issuing subpoenas, which includes the application of the test of apparent relevance. However, this proposition cannot be elevated to the level of a jurisdictional prerequisite. The particular context of this matter whereby Woodside sought the production of documents to its lawyers brought different considerations into play, such that we consider it was open for the Deputy President to take into account issues of privacy and necessity having regard to the overriding criterion of appropriateness in s 590(1).
[31] There can be no doubt that the Commissioner considered whether it was appropriate to require the production of OSM's contracts in the context of the proceedings at first instance and, in so doing, considered the relevance of the documents to the matters at issue in the dispute. For example, the Commissioner said in transcript on 22 January 2025:[10]
THE COMMISSIONER: All right, in which case, I am satisfied that the production of these documents is relevant to the dispute. I appreciate, Mr Hudson, that there may be some historical practices or positions regarding casuals versus permanents. That has not come up in the context of this dispute. This dispute relates to Mr Harkness' application for conversation to permanency. The respondent says that they can't grant him permanency because it would result in redundancies within the preceding 12 months based on their schedule of work, in which case the schedule of work needs to be looked at.
[32] At the further conference held on 6 February 2025, the Commissioner said:[11]
THE COMMISSIONER: - - - on this but I do repeat what I said at the last mention which was that given the nature of the dispute, the cause, the correspondence that's been exchanged between the parties and the questions for determination, it really does seem that the heart of the dispute is what is the upcoming work and to that end, the contracts of work do seem to be of particular relevance.
[33] There was no error in the test applied by the Commissioner. OSM's correspondence notifying Mr Harkness' of its refusal of his request to convert to permanent employment specifically referred to the nature and terms of its contracts. The contracts are potentially relevant to the dispute.
[34] Second, OSM suggests that paragraph [1] of the order for production is "disproportionate". We understand it to mean by this that the order for production captures documents that could not be relevant to the dispute. In particular, OSM contends that the contracts it is required to produce include contracts under which employees perform work who are not covered by the Agreement but are rather covered by other enterprise agreements. It further contends that the order for production would require the production of contracts for the crewing of vessels that do not require a steward, being the position held by Mr Harkness. Those contracts, it says, could not be relevant to the request to convert Mr Harkness to permanent employment.
[35] The CFMEU submits that the dispute is not so limited. It says the question posed by clause 12.4(b) is simply whether converting Mr Harkness to permanent employment would result in redundancies in the following 12 months. It says that this question does not require consideration only of the position of employees covered by the Agreement or to vessels on which a steward is engaged. The CFMEU submits that Mr Harkness could also be deployed as a caterer or a chief steward and that cook positions may be relevant. Those submissions may be contested at the hearing of the substantive dispute. We do not know. However, whether the documents sought have apparent relevance must be assessed by reference to the matters at issue between the parties. Given the manner in which the CFMEU proposes to advance its case, OSM's contracts in relation to vessels generally are potentially relevant to the dispute. It was open to the Commissioner to conclude that it was appropriate for the Commission to inform itself by requiring the production of documents falling within paragraph [1].
[36] Third, OSM submits that paragraph [1] of the order for production requires the production of its commercial contracts with clients and that those contracts contain sensitive commercial and company information which is not in the public domain. It says that it operates in a competitive market and that its contractual terms and commercial arrangements must be kept strictly confidential. It says that disclosure of the terms of its contracts to third parties will prejudice its commercial position and damage its reputation and ability to obtain future contracts. OSM also says that production of its commercial contracts to the CFMEU, with whom it says it has a "complex industrial relationship", will cause it prejudice by disclosing its strategic position.
[37] The fact that documents contain commercial sensitive or other confidential information is not ordinarily a ground for declining to require the production of documents to the Commission if otherwise relevant to matters at issue in proceedings. The sensitivity of information contained in a document might conceivably be relevant to whether it is appropriate to require its production or whether it would be unduly burdensome to do so. However, documents containing commercially sensitive information will frequently be relevant in proceedings before the Commission. Information which is personally sensitive for individual employees is also, not uncommonly, required to be produced to the Commission. Concerns about the confidentiality or commercial sensitivity of information contained in documents produced to the Commission are ordinarily dealt with by orders being sought under ss 593 and/or 594 of the Act prohibiting publication of, or restricting access to, the documents that are produced or admitted into evidence.
[38] The Commissioner was conscious of OSM's concerns in relation to the commercial sensitivity of its contracts. Paragraph [4] of the order for production permitted OSM to redact confidential or commercially sensitive information other than identified information that is relevant to the resolution of the dispute. The Commissioner expressed willingness to assist in addressing concerns about confidentiality of the contracts by facilitating appropriate procedures for access. The CFMEU indicated that it would give undertakings to maintain the confidentiality of the documents produced. OSM has not, as yet, sought any orders limiting the publication of, or access to, any documents produced to the Commission. If documents are produced, that is an option open to it. In our view, the commercial sensitivity of OSM's contracts did not require the Commissioner to refuse to issue an order for production and there is no arguable error in the decision of the Commissioner to do so.
[39] For these reasons, the Full Bench orders that permission to appeal is refused.
H Millar, of counsel, instructed by Mills Oakley for the appellant.
[1] Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146; (2009) 178 IR 275 at [13]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWCFB 396 at [16].
[2] Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323.
[3] New South Wales Court of Appeal in State of New South Wales v Meredith [2024] NSWCA 287 at [22] (Ward P and Griffiths AJA).
[4] Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]; Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 6094 at [29]; You v CSIRO [2020] FWCFB 3804 at [23]; Smith v Reward Interiors Pty Ltd [2021] FWCFB 6031 at [8]; Woodside v Australian Workers' Union [2022] FWCFB 168 at [21]- [22]; Santos WA Energy Ltd v Whittaker [2024] FWCFB 231 at [10].
[5] Fair Work Act 2009 (Cth), s 577(1)(a) and (b).
[6] Santos WA Energy Ltd v Whittaker [2024] FWCFB 231 is an example in which the Full Bench concluded (at [11]) it was in the public interest to grant permission to appeal with respect to a decision concerning a matter of practice and procedure.
[7] See, for example, Shapkin v University of Sydney [2024] NSWCA 156 at [39] (Griffiths AJA).
[8] By reference to Esso Australia Pty Ltd v Australian Workers' Union [2017] FWCFB 2200 at [6].
[9] Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 (Print H2892, 2 June 1988) at p 2; Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460 at [19]; Esso Australia Pty Ltd v Australian Workers' Union (AWU) [2017] FWCFB 2200 at [6]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd (t/as Fredon) [2021] FWCFB 128 at [19]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Sublime Infrastructure Pty Ltd [2024] FWC 2135 at [13].
[10] Transcript, 22 January 2025, PN47.
[11] Transcript, 6 February 2025, PN95.
Printed by authority of the Commonwealth Government Printer
OSM Australia Pty Ltd
Construction, Forestry and Maritime Employees Union [2025] FWCFB 77
(1981) 148 CLR 170
(2009) 178 IR 275