Fair Work Act 2009

s.739 - Dispute resolution

CSL Behring (Australia) Pty Ltd T/A CSL Behring

Application for the production of documents - application not granted.

[1] This is an application by the Association of Professional Engineers, Scientists and Managers Australia (APEAMA) on behalf of Mr Robert Zanon (the Applicant) under section 590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) for an order for the production of documents, records and other information to the Fair Work Commission (the Commission).

[2] The Applicant applied for the order on 5 January 2017 in the context of his substantive application before the Commission regarding a dispute with his employer, CSL Behring (Australia) Pty Ltd T/A CSL Behring (the Respondent).

[3] The Applicant lodged a dispute with the Commission on 17 December 2017 in which it was alleged that the Respondent, in investigating a bullying complaint made by the Applicant, failed to comply with Part 11 Environment, Health and Safety, Clause 3 Statutes, regulations, policies and procedures of the CSL Limited CSL Agreement 2015 (the Agreement). Specifically, that the investigation of his bullying complaint was not conducted in an independent manner and failed to accord him procedural fairness, contrary to the Respondent's Workplace Complaint Resolution Procedure (the Procedure).

[4] The Applicant further alleged in his application that the Respondent had proposed to place the Applicant on a Performance Improvement Plan (PIP) that was not implemented in accordance with Part 3, Clause 1 of the Agreement.

[5] The substantive dispute was filed with the Commission after efforts to resolve the dispute in accordance with the dispute settlement term, Clause 6.2 of the Agreement, were unsuccessful. The Commission conducted a conference of the parties on 8 January 2018 but the substantive matters in dispute remained unresolved at the conclusion of the conference. The Applicant then requested that the matter be arbitrated in accordance with the dispute settlement clause.

[6] As part of its preparation for the arbitral proceedings, the Applicant has sought the production of a copy of the Full and Final Investigation Report (the Investigation Report) regarding a bullying complaint made by the Applicant on 16 June 2017 which the Respondent has declined to provide. The investigation was conducted by the Ai Group at the request of the Respondent following receipt of the Applicant's bullying complaint.

[7] The Applicant has agitated through the course of the dispute that production of the Investigation Report was essential to the resolution of his complaints regarding the manner in which the investigation of his bullying complaint was conducted. Further, the Applicant has contended that production of the Investigation Report would also assist resolve the dispute over the PIP that the Respondent has proposed to implement with him.

[8] Directions were issued to the parties on 11 January 2018 in relation to both the application for the production of documents and the substantive dispute. A Hearing to determine the substantive dispute is to be conducted on 19 March 2018.

[9] [7] The general jurisdiction of the Commission to make such an order arises from s.590 of the Act, and in particular s.590(2)(c). The Act states:

(1) The FWC may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), FWA 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."

[10] The principles for determining whether and if so what form of order to produce should be made were summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association (ANF)[1] and adopted by the Full Bench in Esso Australia Pty Ltd v Australian Workers' Union (AWU), Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Esso).[2]

[11] In Esso, the Full Bench stated:

"It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases."[3]

[12] His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty[4] sets out a detailed exposition of the principles for determining whether to order a person to provide documents with a particular focus on issues of confidentiality. In that decision his Honour referred to the decisions in: (a) in Re Clerks';[5] (b) Appache Northwest Pty Ltd v Western Power Corporation[6]; and (c) Santos Ltd v Pipelines Authority (SA) (No 2).[7]

[13] A number of clauses within the Agreement were contended by the parties as being relevant to the Commission's consideration of the matter. These are produced below.

[14] Clause 6 Dispute Resolution details the terms under which matters may be referred to the Commission and the powers of the Commission in dealing with such matters. Clause 6 relevantly states as follows:

The following process applies to a dispute between parties covered by this Agreement in relation to a matter arising under this Agreement or in relation to the National Employment Standards.

The parties to a dispute must genuinely attempt to resolve the dispute at the workplace level. In the first instance the parties will attempt to resolve the matter by discussions between the employee or employees concerned and the relevant supervisor.

If such discussions do not resolve the dispute, the employee or employees concerned will attempt to resolve the matter by discussion with more senior levels of management.

6.2 Where disputes cannot be resolved at the workplace

(a) If a dispute in relation to a matter arising under this Agreement or in relation to the National Employment Standards are unable to be resolved at the workplace, and all agreed steps for resolving have been taken, the dispute may be referred to FWC for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration.

(b) If arbitration is necessary FWC may exercise the following powers to make the arbitration effective:

(4) requests the attendance before FWC of any witness or person whose presence FWC believes is directly relevant to the dispute and essential for the arbitration of the dispute;

(5) require the production of documents and other material, excluding documents and materials which may be commercially sensitive or confidential, or are not directly relevant to the dispute and essential for the arbitration of the dispute;

(9) conduct its proceedings, or any part of the proceedings in private

(c) In exercising any of the powers detailed above FWC will:

(1) Apply the principles of natural justice, ensuring that the parties to the dispute have a reasonable opportunity to be heard;

(2) Act according to equity, good conscience and consider the merits of the case without undue regard to technicalities and form."

[15] The Agreement at Part 11, Clause 3 details the obligations of the parties with respect to compliance with relevant and applicable statutes, regulations, codes and standards and also policies of the Respondent. Part 11 relevantly provides as follows:

To formally establish the intent of the parties to collaborate, cooperate, and use their best endeavours to maintain safe and healthy workplaces in all the Australian operations of CSL. The parties will maintain effective communication with each other on health and safety issues.

3 Statutes, regulations, policies and procedures

The parties will cooperate to achieve and maintain compliance with relevant and applicable statutes, regulations, codes and standards.

Adherence to the HSEMS and applicable CSL Policies, Standards and Procedures, covering Health, Safety and Environment is mandatory.

[16] The Applicant has submitted that, in respect to the threshold question of the jurisdiction of the Commission to deal with the dispute, the parties have progressed the dispute in accordance with Clause 6 Dispute Resolution and that the matter is a dispute about a matter arising under the Agreement, not the National Employment Standards (NES).

[17] Further, the Applicant contends that the specific source of jurisdiction for the Commission to deal with the dispute, and flowing from that, the present application for the production of documents, is established by the link between the obligations of the parties to adhere to applicable "CSL Policies, Standards and Procedures, covering Health, Safety and Environment" under Part 11, Clause 3 of the Agreement.

[18] The Applicant contends that the reference in Part 11, Clause 3 of the Agreement to "applicable CSL Policies,.....etc" should be interpreted as including policies and procedures relating to workplace bullying and the investigation of complaints of bullying. In support of that contention the Applicant relied on section 789 FD(1)[8] of the Act and section 21(1) of the Occupational Health and Safety Act 2004 (Vic).[9]

[19] The Applicant further submitted that the principles of agreement construction as most recently considered in The Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[10] (Berri) was relevant to determining the meaning of Part 11 Clause 3 and that the ordinary meaning of the relevant words was clear and unambiguous. When applied to the relevant words, the Applicant submitted that it was mandatory for the parties to comply with the Procedure in conducting an investigation of the bullying complaint lodged by the Applicant.

[20] In summary, it was the Applicant's submission that the Procedure was a "procedure" for the purposes of Part 11, Clause 3 and that consequently a dispute over the application of the Procedure enlivened the jurisdiction of the Commission to deal with the dispute under Clause 6 of the Agreement.

[21] With respect to the immediate application for the production of documents, the Applicant referred to the background to the dispute and present application, the requests by both the Applicant and APESMA for a copy of the Investigation Report, the Respondent's repeated refusal to provide the Investigation Report on the grounds of confidentiality and the notification of the dispute to the Commission.

[22] The Applicant referred to the powers of the Commission under section 590(2) of the Act and the relevant principles to be applied in accordance with case law with such applications. The applicant contended that production of the Investigation Report:

• Would assist the Commission in determining key matters in dispute including whether the Respondent has applied the appropriate Performance Management requirements under the Agreement;

• Would assist establish whether the Applicant has been accorded procedural fairness as required by the Performance Review process;

• Was identified with sufficient particularity;

• Did not constitute a "fishing" expedition;

• Would assist the Commission to determine whether the investigation into the Applicant's bullying complaint was conducted in a procedurally fair manner and accorded him natural justice;

• Would assist establish why the Applicant's bullying complaint was found not to have been substantiated; and

• Would ensure that the administration of justice is served by its production for use in the substantive proceedings.

[23] With respect to the Respondent's submissions on the limitations on the jurisdiction of the Commission to order production of documents, the Applicant submitted that it was necessary for the dispute resolution clause to be read in its entirety.

[24] The Applicant contended that clause 6.2(b)(5) needed to be read in conjunction with clause 6.2(b)(9) which it submitted allowed for confidential proceedings and by extension would allow for confidentiality orders to be issued. Further they submitted that the Commission should be guided by the overarching obligations found at clause 6.2(c) which provides for a party to be accorded with the "principles of natural justice" and that matters before the Commission should be considered "without undue regard to technicalities and legal form".

[25] It was contended by the Respondent that the substantive dispute application by the Applicant was made in accordance with clause 6.2 of the Agreement. The subsequent application for production of documents is part of that substantive dispute and consequently the Commission powers in dealing with the dispute are constrained by the terms of clause 6.2 of the Agreement. This was due to the effect of section 739(3) of the Act which defines the powers of the Commission to deal with matters arising under dispute settlement terms of awards and agreements. Importantly, Section 739(3) of the Act expressly prevents the Commission from exercising any powers under the Act that are limited by the terms of dispute settlement provisions of an enterprise agreement.

[26] The Respondent submitted that relevantly, clause 6.2(b)(5) of the Agreement states that the Commission's power to order the production of documents in the context of exercising its dispute resolution powers, is subject to an explicit limitation. The limitation is that the power to order the production of documents excludes "documents and materials which may be commercially sensitive or confidential, or are not directly relevant to the dispute and essential for the arbitration of the dispute".

[27] The Respondent submitted that in the context of the Commission exercising its dispute resolution powers under Clause 6 of the Agreement, its power to order the production of the documents was not at large under section 590(2) of the Act, but rather was to be exercised in accordance with and subject to the limitations of clause 6.2(b)(5) of the Agreement.

[28] Having regard to the specific provisions at 6.2(b)(5) of the Agreement, the Respondent submitted that the Investigation Report was confidential. That submission was supported by a witness statement[11] provided by Mr Warren Fridell, Senior Manager Workplace Relations of the Respondent. In addition, the Respondent submitted that the Investigation Report was not directly relevant to the Commission's determination of the four questions that were agreed to be determined in the substantive dispute. Those four questions were:

1. Is the Workplace Complaint Resolution Procedure a "procedure" for the purposes of Part 11 Environment, Health and Safety, Clause 3 in the CSL Limited T/A CSL Agreement 2015 (the Agreement)?;

2. If the answer to Question 1 is "yes", then has CSL complied with requirements of the Workplace Complaint Resolution Procedure in its conduct of the investigation of Mr Zanon's bullying complaint?;

3. Do the terms of the Agreement preclude CSL Limited from implementing a formal performance management process other than in accordance with Part 3 Performance Management, Clause 1 and 3?;

4. If the answer to Question 3 is "yes", than has CSL Limited complied with the terms of Part 3 Performance Management, Clause 1 and 3 in implementing a formal performance management processes with Mr Zanon?

[29] The Respondent contended that given the confidentiality and lack of relevance of the Investigation Report to the dispute determination, the Commission did not have the power under clause 6.2(b)(5) of the Agreement to order production of the Investigation Report in the present dispute.

Approach to construing enterprise agreement terms

[30] The approach to construing enterprise agreements was most recently set out in a Decision of a Full Bench of the Commission in Berri[12] as follows:

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

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

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

[31] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine,[13] a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA,[14] emphasising the following matters:

• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means[15] and there is always some context to any statement;[16]

• Language considered in its context will often have a clear meaning and context will often not displace that meaning - "but not always";[17]

• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;[18]

• The phrase used by Mason J in Codelfa "if the language is ambiguous or susceptible of more than one meaning" does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;[19] and

• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.[20]

[32] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[33] In order to determine the application for the production of the Investigation Report, it is necessary to firstly establish the jurisdiction of the Commission in this matter.

[34] The threshold issue, that of whether the dispute giving rise to the application for the production of the Investigation Report is a matter arising under the Agreement, has been addressed by the Applicant but not contested by the Respondent in the present application. I note however that the threshold point is an agreed issue to be determined in the substantive proceedings.[21] Given that the Respondent has not contested the point in this application I will proceed on the basis that, at least with respect to the present application to produce documents, there is no objection to the Commission determining the application in accordance with the Act and other relevant terms of the Agreement.

[35] In order to determine whether the Commission should exercise its discretion to order the production of the Investigation Report it is first necessary to determine whether it can make such an order.

[36] The starting point for that consideration is that of section 590 of the Act which describes the powers of the Commission to inform itself in relation to matters before it. Relevantly the Act provides at section 590(2)(c) of the Act that it may inform itself:

"(c) By requiring a person to provide copies of documents or records, or to provide any other information to the FWC"

[37] However, in the circumstances of the Commission dealing with a dispute under section 739 of the Act there are limitations to the broad powers conferred by section 590 of the Act. Importantly, section 739(3) of the Act states in referring to the powers of the Commission to determine a dispute pursuant to a dispute settlement term that:

"(3) In dealing with a dispute, the FWC must not exercise powers limited by the term;"

[38] In Shield v Alfred Health[22](Alfred Health), Senior Deputy President Kaufman construed section 739(3) of the Act as preventing the Commission from exercising powers limited by the terms of a dispute settlement provision. In that case, the Senior Deputy President found that the Commission could not deal with the dispute until there had been a "genuine attempt by the parties to resolve the dispute", that being an explicit requirement of the dispute settlement term.[23]

[39] I respectfully adopt the Senior Deputy President's reasoning in Alfred Health that the powers of the Commission in dealing with a dispute under section 739 of the Act are limited by the provisions of the relevant dispute settlement term, which in the present matter is found at Clause 6 of the Agreement.

[40] I am satisfied that in the context of the section 739 dispute before the Commission in the present matter, it follows from the above that the application for the production of documents must be determined by the Commission having regard to the powers conferred and/or limited by Clause 6 of the Agreement. Clause 6.2(b)(5) explicitly deals with the power of the Commission to order the production of documents as part of dispute resolution process and provides that the Commission may:

"(5) require the production of documents and other material, excluding documents and materials which may be commercially sensitive or confidential, or are not directly relevant to the dispute and essential for the arbitration of the dispute"

[41] The parties to the Agreement have explicitly limited the powers of the Commission to order the production of documents in dealing with a section 739 dispute before it. The limitations imposed are that the Commission's discretionary power under clause 6.2(b)(5) of the Agreement to order the production of documents excludes those documents that "may be commercially sensitive or confidential or are not directly relevant to the dispute and essential for the arbitration of the dispute."

[42] The Applicant has however contended that the limitation on the powers of the Commission at clause 6.2(b)(5) to order the production of documents, as argued by the Respondent, needs to be construed in conjunction with clauses 6.2(b)(9) and 6.2(c). Those latter clauses, it was submitted by the Applicant, would ameliorate (in their view) the claimed exclusion of documents falling into the categories of commercially sensitive, confidential or were not relevant or necessary to the arbitration of the dispute.

[43] Applying the principles of construction as most recently enunciated in Berri, it is necessary to first turn to whether the language in the disputed terms is ambiguous or susceptible to more than one meaning.

[44] I am satisfied that clause 6.2(b)(5) is clear in its meaning in that it allows for the Commission to order the production of documents except for those documents falling into an excluded category, that is where the documents may be commercially sensitive or confidential or are not relevant too or necessary for the arbitration. I am not persuaded that there is any ambiguity in the wording of clause 6.2(b)(5).

[45] In determining the proper construction of the terms of an enterprise agreement, the ordinary meaning of the relevant words is not the end of the consideration. Regard must also be had to the context to either confirm that the ordinary meaning of the relevant words is the basis upon which the Agreement is to be properly construed, or to contradict what appears to be the plain meaning of the words in the Agreement.

[46] With respect to the Applicant's contention that clause 6.2(b)(9) should be read as to enable the Commission to order the production of confidential documents that it would be otherwise limited in doing by reason of clause 6.2(b)(5), there is in my view no warrant for such a construction. Clause 6.2(b)(9) simply refers to the conduct of proceedings in "private". It makes no explicit reference to or establishes a link to the production of documents. I am not satisfied that the clause provides any context or guidance that contradicts the ordinary meaning of clause 6.2(b)(5).

[47] As regards the Applicant's submission regarding clause 6.2(c), the clause appears to simply require that in exercising the powers conferred by clause 6.2(b) of the Agreement, those powers under clause 6.2(b) must be applied by the Commission having regard to the principles detailed in sub clauses 6.2(c)(1) and (2). If it were otherwise, such that it expanded the Commission's powers, then there would appear to be little point in detailing the specific powers conferred to the Commission under clause 6.2(b). I am consequently not persuaded that clauses 6.2(c)(1) and (2) modify the operation of clause 6.2(b)(5) such that it would allow the Commission to order the production of documents that were found to fall into the excluded category of documents.

[48] No other relevant contextual matters were advanced as militating against the ordinary and clear meaning of the words of clause 6.2(b)(5). Consequently and consistent with the principles of agreement construction outlined in Berri, I am satisfied that the proper construction of clause 6.2(b)(5) is that the Commission may order the production of documents except where such documents fall into the excluded categories detailed in the clause. Importantly, I am not persuaded that clause 6.2(b)(5) requires or permits a balancing of consideration of the interests an applicant may have in seeking documents once it is established that the document falls into an excluded category.

[49] I now turn to consider whether the Investigation Report falls into any of the excluded categories provided for at clause 6.2(b)(5). The Respondent did not contend that the Investigation Report was commercially sensitive. I am therefore satisfied that the Investigation Report is not "commercially sensitive" and would accordingly not be captured by the exclusion in clause 6.2(b)(5).

[50] I now turn to consider whether the Investigation Report "may" be confidential. It is important to note at this point that I am not required to be satisfied that the Investigation Report is confidential, rather that it may be confidential. The use of the word may implies that a lesser certainty is required on the part of the Commission in considering whether the Investigation Report falls into the category of confidentiality.

[51] The evidence of Mr Friddell is clear in terms of how the Respondent regards and has treated the Investigation Report. A small number of individuals have access to the document, including Mr Friddell, Mr Adam Williams, CSL's Director of Human Resources, Ms Pia Daish, CSL Human Resources Business Partner and the Respondent's external legal advisors. Permissions for accessing the document are limited to those named persons.

[52] In further support of the contended confidentiality of the document, the Respondent referred to the Procedure under which the investigation of the Applicant's bullying complaint was undertaken. It was submitted that confidentiality was one of the most important aspects when dealing with complaints under the Procedure. Further, that the sensitive nature of investigations would be compromised if, in carrying out investigations, the Respondent could not assure witnesses that information sourced from them would remain confidential.

[53] The Applicant referred in his evidence and submissions to his and his representative's unsuccessful efforts to secure a copy of the Investigation Report from the Respondent. The Applicant submitted that at no stage had the Respondent demonstrated that: legal privilege attached to the Investigation Report; it contained commercially sensitive information; and that no reasons beyond the risks of recriminations or victimisation of witnesses had been advanced by the Respondent to justify its confidentiality. The Applicant also submitted that it would not oppose confidentiality orders being made by the Commission in ordering the production of the Investigation Report.

[54] It is evident that the Respondent regards the investigation of complaints as a process requiring sensitivity and confidentiality. Further, that in the present matter it has treated the Investigation Report as strictly confidential and has accordingly limited access to the document. While the document may well shed light on concerns the Applicant holds in relation to the substantive issues in dispute, it is also the case that the Respondent wants to protect the integrity of its investigation processes which it argues may be compromised if the confidentiality of the Investigation Report is breached.

[55] As I have previously stated it is not necessary for the Commission to be satisfied that the Investigation Report is confidential, merely that it may be confidential. There is little doubt that the Respondent believes and has acted consistently on the basis that the Investigation Report is confidential. The Applicant has not accepted that position but has conceded a willingness for the Commission to make any order subject to confidentiality.

[56] While the Commission has not had the opportunity to review the Investigation report, I accept that there may be references in the document to statements, views and opinions expressed by other persons regarding the Applicant and his complaint that the Respondent has an interest in preserving as confidential. I am therefore satisfied that the Investigation Report may be confidential.

[57] Having found that the Investigation Report may be confidential it is unnecessary for me to proceed to consider the third limb of the exclusion in clause 6.2(b)(5), that of whether the document is "not directly relevant to the dispute and essential for the arbitration of the dispute".

[58] I am satisfied that the jurisdiction of the Commission to order the production of the Investigation Report as sought by the Applicant is subject to and limited by clause 6.2(b)(5) of the Agreement and not the broader powers conferred by section 590(2)(c) of the Act. That limitation is imposed by reason of the operation of section 739(3) of the Act.

[59] I am further satisfied that in the course of the dispute settlement process under the Agreement, the Commission's power to order the production of documents under clause 6.2(b)(5) of the Agreement is limited to those documents that do not fall into an excluded category of documents.

[60] One of the excluded categories of documents is where the documents sought may be confidential. I am satisfied for the reasons outlined above that the Investigation Report may be confidential and as such falls into an excluded category of documents. Consequently, the Commission does not have the power under the dispute settlement term of the Agreement to order its production for the purposes of the section 739 dispute currently before it.

[61] The present application under section 590(2)(c) of the Act for an order for the production of documents is consequently dismissed.

[1] [2011] FWA 8756.

[2] [2017] FWCFB 2200.

[3] [2017] FWCFB 2200 at [6].

[6] [1998] WASCA 127; (1998) 19 WAR 350.

[7] Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 (SACA).

[8] Fair Work Act 2009 (Cth), section 789 FD(1).

[9] Occupational Health and Safety Act 2004 (Vic), section 21(1).

[10] [2017] FWCFB 3005.

[11] Statement of Mr. Warren Fridell, dated 9 February 2018.

[12] [2017] FWCFB 3005 at [114].

[13] [2017] FWCFB 4487.

[14] [2014] NSWCA 184 at [71] - [85].

[15] Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

[16] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

[17] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

[18] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73].

[19] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] - [85].

[20] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

[22] [2012] FWA 162.

[23] [2012] FWA 162, Paragraph [34].

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