Fair Work Act 2009

s.158 - Application to vary or revoke am modern award

Shop, Distributive and Allied Employees Association

Application to vary or revoke a modern award - applications for order to produce documents

• [1] The Shop, Distributive and Allied Employees Association ("the SDA") has applied to the Fair Work Commission to vary three modern awards, under section 158 of the Fair Work Act 2009 (Cth) ("the Fair Work Act").

• [2] The Ai Group opposes the substantive application and has filed submissions and evidence to that end, including a witness statement of Ms Christine Bletsas dated 9 July 2025 ("the Bletsas Statement") and a witness statement of Mr Matthew Alexander Beattie dated 11 July 2025 ("the Beattie Statement").

• [3] Mr Beattie is the Head of Restaurant Finance, North and East, for McDonald's Australia Limited. Ms Bletsas is Chief Financial Officer, Hungry Jack's Pty Ltd. Their statements are partly subject to confidentiality orders made 31 July 2025 ("the confidentiality order") and 25 September 2025 ("the further confidentiality order"). The further confidentiality order amended the confidentiality order but made no change to the matters it covered.

• [4] The SDA has applied for orders to produce documents, records and/or information, directed to Ms Bletsas and Mr Beattie personally.

• [5] Section 590 of the Fair Work Act gives the Commission the power to inform itself in such manner as it considers appropriate. The provision explicitly includes a power to require a person to provide copies of documents or records, or to provide any other information, to the Commission. Rule 26 of the Fair Work Commission Rules 2024 (Cth) ("the Commission's Rules") deals with orders to produce.

• [6] In this Commission, to obtain an order to produce, a party files an application, with a draft order attached. The application itself, including the draft order, must be served on the proposed addressee and the other party or parties,[1] if any. The application is generally determined by a Member of the Commission, often without first hearing from the parties.[2]

• [7] Once an order to produce has been made, it must be provided to the addressee and, unless it has been published on the Commission's website, other party or parties to the proceedings,[3] if any. Applications to set aside the order, or objections to production and/or inspection, may subsequently be raised.

• [8] These applications were filed on 25 August 2025 and were accompanied by draft orders. The SDA applies for an order requiring Mr Beattie to produce:

1. The written calculations, assumptions, working papers and data used to arrive at the estimates relied on by Mr Beattie at the following paragraphs of the Beattie Statement:

(a) Paragraphs 13 and 14, regarding the calculation of the [REDACTED FOR CONFIDENTIALITY];

(b) Paragraph 14, regarding the proportion of sales spent in crew labour;

(c) Paragraph 15, regarding the estimated cost-to-labour breakdown;

(d) Paragraph 20, regarding [REDACTED FOR CONFIDENTIALITY] (in sub-paragraph (a)), and [REDACTED FOR CONFIDENTIALITY] that would be affected (in sub-paragraph (b));

(e) Paragraph 23, regarding the [REDACTED FOR CONFIDENTIALITY]

2. The consolidated financial accounts underpinning the statements about labour costs (paragraphs 11, 13 and 14), EBITDA (paragraphs 13, 14), interest costs (paragraph 13) and profit and loss (paragraph 14).

3. Consolidated financial statements for the past three years (relevant to the assertion at paragraph 13 that [REDACTED FOR CONFIDENTIALITY].

4. The [REDACTED FOR CONFIDENTIALITY] referred to in paragraph 21.

5. The [REDACTED FOR CONFIDENTIALITY] referred to in paragraph 22.

6. The assumptions used in paragraph 24 of the Beattie Statement to determine that the [REDACTED FOR CONFIDENTIALITY].

7. The written calculations, assumptions, working papers and data used in paragraph 24 of the Beattie Statement to determine that a price increase [REDACTED FOR CONFIDENTIALITY].

8. The written calculations, assumptions, working papers and data used to produce the numerical evidence in paragraph 26 of the Beattie Statement, including the Table in paragraph 26.

9. The underlying data evidencing the hours worked by level and by age for the period from the financial years 2019-20 to 2022-23, in the form used to produce Exhibit MB-1 to the Beattie statement in the following Tabs:

• [9] The SDA applies for an order requiring Ms Bletsas to produce:

1. The [REDACTED FOR CONFIDENTIALITY] referred to in paragraphs 28 of the Bletsas Statement.

2. The [REDACTED FOR CONFIDENTIALITY] that Ms Bletsas requested from [REDACTED FOR CONFIDENTIALITY], which was provided to her and then used by her to calculate the [REDACTED FOR CONFIDENTIALITY] referred to in paragraphs 36 and 37 of the Bletsas Statement.

3. The written calculations, assumptions, working papers and data used to arrive at the estimates relied on by Ms Bletsas in paragraph 38 of the Bletsas Statement, including: the [REDACTED FOR CONFIDENTIALITY] that Ms Bletsas requested from [REDACTED FOR CONFIDENTIALITY] which was provided to her and then used by her to calculate [REDACTED FOR CONFIDENTIALITY] in EBITDA referred to in paragraph 38 of the Bletsas Statement.

4. The written calculations, assumptions, working papers and data used to arrive at the estimate relied on Ms Bletsas that [REDACTED FOR CONFIDENTIALITY], as described in paragraph 39 of the Bletsas Statement.

• [10] The above redactions are as provided by the SDA. I have also had regard to the unredacted schedules to the draft orders.

• [11] I am satisfied that service on Ms Bletsas and Mr Beattie has been effected.

• [12] As I have stated above, the Commission's procedure involves the applicant serving both the application for an order (along with the draft), and the order itself, if made. The result is that the application can be contested, as has occurred in this case.

• [13] An addressee may also seek to have an order set aside, once made, or raise objections to producing documents in compliance with the order. The grounds for opposing the order and objecting to production under it can overlap. The Commission can infer that by opposing the Commission making the order, the person also objects to producing documents under it, if it is made.[4]

• [14] In light of the contest, the applications were listed for hearing on 10 September 2025. The applicant for the orders, the SDA, appeared, as did Ai Group. Neither Mr Beattie nor Ms Bletsas entered an appearance. The Australian Retailers Association also entered an appearance. As the proposed orders dealt with some parts of the witness statements covered by the confidentiality order of 31 July 2025 the hearing moved into closed session, with only the SDA and the Ai Group appearing during that closed session.

• [15] At the hearing, Ai Group tendered, and I admitted, a witness statement of Mr David Maclean Cross signed 10 September 2025. Mr Cross is Principal Adviser - Workplace Relations for AiGroup. I have had regard to the applications and attached draft orders, Mr Cross's statement, and the SDA and Ai Group's submissions in deciding these applications.

• [16] The Ai Group objected to both of the orders sought on a range of grounds. They considered the applications were directed towards testing Mr Beattie and Ms Bletsas's evidence. They submitted that the legislation provides a broad discretion ultimately directed towards the aim of balancing the interests of the applicant and those who are affected by it in the overall exercise of the Commission's discretion. They submitted the principles applicable to subpoenas in the courts guide but do not constrain the discretion. They submitted that merely having apparent relevance and not being oppressive are not the only relevant considerations.

• [17] Essentially, they submitted their objections went to questions of whether the documents and information sought were relevant, whether the applicant was on a fishing expedition, whether the requests would give rise to oppression, if granted, and the nature of some parts of the orders sought which they considered to not be orders to produce documents but more in the nature of interrogatories.

• [18] In connection with the question of whether the applications were directed towards fishing, the Ai Group referred the Commission to McIlwain v Ramsey Food Packaging Pty Ltd[5] as authority for the proposition that an application of this kind could not be used to investigate the character of the opposing party's evidence. They submitted that these applications were about investigating the character, veracity, and correctness of their witnesses' evidence, when the typical and traditional domain for such a course is through cross-examination.

• [19] They referred to the specific provisions of the proposed schedules to the orders sought and elaborated on these submissions in respect of those proposed orders.

• [20] The Ai Group also submitted that if orders for production were made, a confidentiality order should be issued in respect to some of the documents. They and the SDA were at odds as to whether only the SDA's lawyers, and not the SDA, should have access to documents covered by the confidentiality order if made.

• [21] The SDA submitted that the orders sought documents that were clearly relevant, and had a clear forensic purpose. They submitted that the SDA should be able to properly consider and test evidence that had been led by Ms Bletsas and Mr Beattie, and the assumptions that underpin those witnesses' assertions, regarding the financial impact of the proposed Award variation. They submitted that, with the exception of a small number of the documents, the categories of documents sought are documents or references to calculations or assumptions that are put expressly in issue by, and stated and relied upon by, the two witnesses. They submitted the orders sought were not oppressive and should be made. They elaborated on these submissions in respect of the specific provisions of the proposed schedules to the orders sought.

• [22] The power to make orders of the kind sought in these applications is discretionary, and statutory. The approach to the exercise of discretion will be informed by the specific statutory context. The power should be exercised having regard to the provisions of the Fair Work Act, including the requirements under sections 577 and 578, and bearing in mind that the rules of procedure do not apply (s. 591).

• [23] An order to produce documents or records in this Commission is, in general terms, analogous to a subpoena or summons to produce documents in the courts. In exercising its discretion, the Commission considers the approach that the courts take to dealing with subpoenas and summons.[6] The courts' principles are a source of guidance; they are not jurisdictional prerequisites.[7] Having regard to those principles, and the approach that has been adopted in the Commission, the following observations can be made.

• [24] When a party applies for an order to produce, then generally speaking the Commission will exercise its discretion in favour of the party applying, unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to make the order.[8] The order must be for a legitimate forensic purpose, generally because of the apparent relevance of the documents sought.[9]

• [25] In exercising this discretion, the Commission decides whether to grant the order and if so on what terms.[10] Matters that will guide the exercise of the discretion to require production include, among other things, relevance, whether the documents have been described with particularity (in enough detail), whether the burden on the addressee is reasonable, whether the person wanting the order is 'fishing', and the proper administration of justice. [11]

• [26] The New South Wales Supreme Court has observed that traditionally, subpoenas to parties have been treated somewhat more liberally than subpoenas to strangers.[12] By analogy I have taken the view that orders to produce directed toward persons who have filed materials in these proceedings, and witnesses in respect of whom they have filed witness statements, would be treated more liberally than orders directed towards strangers.

• [27] An order requiring a person to provide "any other information," as distinct from providing copies of documents and/or records, appears to be of a different character. It does not have a direct analogue in the courts, though in some respects it may be considered similar to the power to allow parties to serve interrogatories on other parties.[13] In administrative tribunals, though, it is not uncommon for the tribunal to have a power to inform itself, including by requiring provision of information,[14] in addition to the power to require production of documents. Such broad information gathering powers may indicate the tribunal can take a more inquisitorial approach where appropriate.[15] This means the courts' guidance may need some further adaptation when applied to this aspect of the power.

• [28] I accept that the proposed orders, in each application, meet the requirement for apparent relevance. They go to matters raised by Ai Group in opposition to the substantive application. I also accept that the orders describe the documents, records and information sought with sufficient particularity.

• [29] However, I consider that the orders as drafted are too broad and should not be made in the form proposed. I will provide reasons for this below. First, though, I will make brief observations about the persons to whom the orders are directed. They are both natural persons and, on the basis of their witness statements, employees of corporate entities. These applications do not seek orders directed towards the proper officer of the corporations by which they are employed. I do not take these applications or the orders made to be directed towards those two corporations.

• [30] The nature of a requirement to provide broad categories of 'information' means that the orders if made would create an extensive burden on the persons to whom they are directed, militating against the proposition that the orders would be reasonable.

• [31] Next, though these orders would be directed towards individual employees of two Ai Group members, rather than the proper officers of the members or the Ai Group itself, they nonetheless are, for practical purposes, aimed at the internal deliberations of significant industrial protagonists, both in the context of these award variation proceedings, and more broadly given the applicant is a union and the intended addressees of the orders work in senior roles for employers whose employees are covered by that union. The Commission should take care considering whether to make orders that might cause an industrial protagonist to reveal its internal deliberations and intentions on industrial relations matters.[16]

• [32] The SDA and the Ai Group were in dispute as to whether the proposed orders, to the extent they sought information, constituted a fishing expedition. As indicated above the Ai Group referred to McIlwain v Ramsey Food Packaging Pty Ltd. The relevant paragraph of that judgement states:

"[35] In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:

(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of "fishing" or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright [1888] UKLawRpKQB 117; (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence (Griebart v Morris [1920] 1 KB 659 at 666)."

• [33] Subparagraph (e) is one of fifteen subparagraphs in which Greenwood J sought to summarise the principles applicable to subpoenas. The Ai Group particularly refers to the last clause of sub-paragraph (e), which in turn relied on Griebart v Morris, a case about whether there was a general rule of practice that leave to deliver interrogatories would not be granted in relation to running-down cases (car and pedestrian accident cases) other than in special circumstances. The Court found there was not such a rule of practice and the question was as prescribed under the relevant rules, i.e., whether leave was necessary either for disposing fairly of the case or saving costs. In that case the Bench was in agreement but each member issued his own brief reasons. Bankes LJ said:

"In Hennessy v Wright (1888, 24 QBD 445) Lord Esher said: "The objection taken by the defendant is that the answers to the interrogatories in question cannot disclose anything which can be fairly said to be material to enable the plaintiff either to maintain his own case or to destroy the cause of his adversary. It must be admitted that, if the answers could be material for either of these purposes, the interrogatories ought to be answered." Therefore there are two objects of interrogatories, one being to obtain an admission and thus to support the interrogator's case, and the other being to destroy the opponent's case. There are, however, two well-known limitations upon the right to interrogate. It is not permissible to administer interrogatories which are of a "fishing" character, or which seek to obtain the names of the opponent's witnesses."

• [34] Jordan CJ referred to this decision in Commissioner for Railways v Small[17] as follows:

"In the absence of special circumstances, e.g. Griebart v Morris, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing," i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v. Wright, or to discover the nature of the other side's evidence: Griebart v. Morris. ..."

• [35] It seems fairly clear that the issue of 'fishing' and discovering the names of the other side's witnesses or the nature or character of their evidence is directed toward reserving subpoenas for their proper purpose of supporting one party's case or destroying another's, rather than granting them as a form of preliminary discovery or for exploratory purposes. This Commission has treated the concept of fishing similarly. In APESMA v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd[18] the Full Bench said:[19]

"... the notion of a "fishing expedition" is that an order to produce is not to be used for the purpose of exploring whether there is a supportable basis for a case that might potentially be advanced."

• [36] Assertions of fishing in the context of the current proceedings should be carefully considered. Preparations for the hearing are in their advanced stages. The SDA and several others have filed outlines of submissions. The SDA and some others, including the Ai Group, have filed extensive lay and expert evidence. The case the SDA is actually advancing necessarily involves some complexity and breadth, as it goes to the modern awards objective found in s 134(1) of the Fair Work Act, the minimum wages objective in s 284(1), and the issue of justification for work value reasons as defined by s 157(2A), as well as the Fair Work Act's object in s 3, and the matters set out there.[20] I consider the orders sought are aimed towards advancing the SDA's case or opposing the Ai Group's case, not for exploring potential new fronts to open. That is not, though, the end of the matter. The question of "fishing" is only one consideration to be balanced.

• [37] The complexity and breadth of the case being advanced necessarily requires some caution in considering what should be required to be produced, in the interests of the administration of justice, to enable a party or other person being heard in the proceedings, to advance their case. This goes to whether requests for documents, records, or information are reasonable, notwithstanding they meet the requirement for relevance and do not constitute fishing as that metaphor is usually understood. I have indicated above that I consider the request for information, where couched in broad terms, can create a heavy burden on the receiving party.

• [38] None of these considerations can be considered in isolation or in absolute terms. On balance, taking into account the considerations relevant to the exercise of the discretion, I decline to make orders to the extent that I consider the terms sought would compel Ms Bletsas or Mr Beattie to provide 'information.'

• [39] Specifically, to the extent the schedules are drafted to require the provision of assumptions, as opposed to seeking documents in which assumptions are set out, I consider this to be directed towards provision of information, not production of documents or records. I decline to make orders in those terms. I take the same approach in relation to drafting that requires the provision of data, which is to say, information.

• [40] I have considered the request for particular metrics in paragraph [4] and [5] of the schedule to the proposed order directed to Mr Beattie. These are not requests couched in terms of 'data' or 'assumptions' but simply ask for the metrics themselves. I will deal with those requests in this manner. It is up to Ai Group to put its best case forward. Mr Beattie's statement refers to these two metrics in brief and general terms only. In Re Clerks (Alcoa)[21] Munro J said:

"... should the circumstances of the case warrant it, the axiom of Mansfield LJ in Blatch v. Archer can be applied to the evaluation of evidence finally before the tribunal:

'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted.'"

• [41] I now turn to the remaining parts of the schedules to the proposed orders, relating to proposed production of documents and/or records.

• [42] I will first deal with the application for orders directed to Ms Bletsas. I consider the documents and records sought to have apparent relevance. With the removal of the references to assumptions and data for the reasons above, the request is narrowed. I do not consider the requests to constitute "fishing."

• [43] I will order production of the documents requested at proposed paragraphs [1] and [2] of the schedule to the draft order directed to Ms Bletsas. I will make a confidentiality order in that regard, as discussed below. If Ms Bletsas has such a document within her possession, power or control, and wishes to object to inspection of it, or part of it, she may file a redacted and unredacted copy along with her objection to inspection.

• [44] As to paragraphs [3] and [4] of the schedule to the draft order, I will order production of the calculations referred to in paragraphs [38] and [39] of Ms Bletsas' statement, if they were in writing.

• [45] I will now turn to the application directed to Mr Beattie, dealing with each paragraph of the schedule to the proposed order, save for those already dealt with above.

• [46] As to paragraphs [1(a) to (e)], I will order production of any document or record to which Mr Beattie directly had regard when preparing his statement. If Mr Beattie has any document within his possession, power or control falling with the above scope, and wishes to object to inspection of it, or part of it, he may file a redacted and unredacted copy along with his objection to inspection.

• [47] I will not order production as contemplated in paragraphs [2] and [3] of the schedule to the proposed order. From its name, Mr Beattie's employer appears to be a public company. It would have had obligations to lodge financial reports with ASIC, including, recently, consolidated entity disclosure statements. Making an order carries significant potential consequences for the recipient and I would not be minded to make an order requiring production of publicly-available documents. The SDA may apply again if it is unable to obtain the documents it seeks by alternative means.

• [48] As to paragraphs [7] and [8], I observe that paragraphs [24] to [26] of the Beattie statement make assertions of a microeconomic nature, and lack specificity as to the sources of Mr Beattie's knowledge. I make the same observation as I have made above in relation to paragraphs [4] and [5] of the schedule to the proposed order.

• [49] Ai Group proposed that only legal representatives be able to inspect the produced documents, if any. I have considered the SDA and Ai Group's submissions as to confidentiality. I will make a confidentiality order but I do not consider it practical, in this matter, to confine these documents to legal representatives. I will allow disclosure of documents or records produced under these orders only to legal representatives, specified persons within each of SDA and Ai Group, and specified expert witnesses.

• [50] I have decided to make orders for production of documents and/or records directed towards Mr Beattie and Ms Bletsas as described above. The orders will issue separately.

• [51] I have decided to make a confidentiality order, though with a broader scope than that proposed by Ai Group. This order will also issue separately.

Mr J. Tierney of Counsel, instructed by Macken & Co., for the SDA

Mr M Follett of King's Counsel with Mr Moir of Counsel, instructed by Ai Group, for Ai Group

Mr S Wilding of King & Wood Mallesons for the Australian Retailers Association

[1] Fair Work Commission Rules 2024 r 21 and sch1. See also Fair Work Commission Practice note: Orders to attend & orders to produce, [33].

[2] United Firefighters' Union of Australia v Country Fire Authority [2016] FWC 2485, [6].

[3] Fair Work Commission Rules 2024 r 26(4).

[4] Re Clerks (Alcoa Australia) Award [1988] AIRC 391 (Munro J).

[5] [2005] FCA 1233; 221 ALR 785, [35] (Greenwood J).

[6] APESMA v Great Southern Energy [2024] FWCFB 106, [24]; Esso Australia Pty Ltd v AWU and Ors [2017] FWCFB 2200 at [6].

[7] APESMA v Great Southern Energy [2024] FWCFB 106, [26].

[8] R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471; (1981) 35 ALR 241; (1981) 55 ALJR 516; [1981] HCA 33 (Mason J[1981] HCA 33; , 147 CLR 471 at 473); CEPU v South32 [2021] FWC 3043 (Beaumont DP), [44]; D.A. v Baptist Care SA [2019] FWC 7358 at [36].

[9] Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193 (McGrath J), [70], citing Azzi v Volvo [2006] NSWSC 283, (Brereton J), [4]; CEPU v Fredon Industries [2021] FWCFB 128 (Hatcher VP, Gostencnik, DP, and Mansini DP), [19]; Portal Software v Bodsworth [2005] NSWSC 1115, [28]-[29]; SPI Electricity Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FWA 4350 (Bissett C) applying Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181, [13] (Cowdroy J) which applied Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 21 FCR 306; 88 ALR 90 at ALR 103 (Beaumont J).

[10] APESMA v Great Southern Energy [2024] FWCFB 106, [24], citing Esso v AMWU and Ors [2017] FWCFB 2200, [6].

[12] Portal Software v Bodsworth [2005] NSWSC 1115 (Brereton J), [26].

[13] such as r 21.01, Federal Court of Australia Rules 2011 (Cth).

[14] see for example Migration Act 1958 (Cth), s 424, and Administrative Review Tribunal Act 2024 (Cth), s 79(2)(a).

[15] Compare SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 [2005] HCA 24

[16] MUA (Appeal) [1996] AIRC 2189 (Boulton J, Polites SDP, Dight C).

[17] [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 574-575.

[18] [2024] FWCFB 106

[19] Ibid, [25], and the cases there cited.

[20] SDA's outline of submissions filed 6 November 2024.

[21] [1988] AIRC 391 (Munro J).

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