s.739 - Application to deal with a dispute

Application to deal with a dispute arising under an enterprise agreement - interlocutory application for orders to produce documents - application dismissed.

[1] This decision concerns an application by the United Firefighters' Union of Australia (UFU) pursuant to s 590(2)(c) of the Fair Work Act 2009 (Cth) (Act) for an order for the production of documents directed to the Country Fire Authority (CFA).

[2] The matter concerns the employment of Ms Jessica Harris with the CFA. It is made in the context of a substantive application by the UFU pursuant to s 739 of the Act for the Commission to deal with a dispute under the Country Fire Authority Professional, Technical and Administrative Agreement 2021 and/or the Country Fire Authority Professional, Technical and Administrative Agreement 2020.

[3] For the reasons that follow, I decline to exercise my discretion to make the order sought by the UFU.

[4] The UFU filed a Form F52 application for the production of documents on 28 April 2023. By email dated 4 May 2023, following the filing and service of the CFA's evidentiary material in the substantive application, the UFU confirmed the application was pressed.

[5] The F52 application has been made with reference to the Commission's powers in s 590(2)(c) of the Act. Section 590(2)(c) of the Act provides that the Commission may inform itself by requiring a person to provide copies of documents or records, or to provide any other information to it. The principles applying to the issuance of orders for production in the Commission were not the subject of debate between the parties, although their application to the facts in these proceedings was in contest, with the CFA objecting to the Commission making an order pursuant to s 590(2) on various grounds.

[6] The order sought by the UFU is set out in the Schedule to the application and is not reproduced here. It is sufficient to note that the documents sought in categories 1 to 3 concern "any discussion, deliberation or decision" by or for the purposes of the Human Resources Directorate, the Strategic Services Directorate and the Governance Legal and Risk Directorate, to:

(a) deem the Business Continuity Advisor role and the Manager Risk & Assurance role "excess to CFA's requirements" (categories 1 and 2); and

(b) establish a new role of Senior Risk Business Partner and Business Continuity Business Partner (category 3).

[7] A Mention was convened on 10 May 2023 at which the UFU proposed an alternative form of order which it submits narrows the scope of the documents sought. The alternative proposal involves confining the "discussion, deliberation or decision" in categories 1-3 respectively by containing "some reference to it being, concerning or about Ms Harris."

[8] The UFU did not otherwise seek to vary the breadth of the proposed order.

• [9] With respect to the grounds for production, the UFU refers to its outline of submissions in the substantive application at [12]-[22],[1] which relevantly concern Question 2 of the agreed questions for determination in the arbitration.

[10] Question 2 requires the Commission to determine the following question:

Are the CFA positions of "Business Continuity Advisor" within the Strategic Services portfolio and "Manager Risk & Assurance" within the Risk, Assurance & Insurance Services team "excess to the CFA's requirements" within the meaning of cl 20.1 of the 2021 Agreement and/or cl 19.1 of the 2020 Agreement as a result of:

(a) a change to the way duties are performed; or

(b) because the duties are no longer required to be performed?

• [11] The UFU's position is that in answering this question, the Commission is required to determine the UFU's contention that the true reason or reasons for declaring the Business Continuity Advisor and Manager Risk & Assurance roles redundant relates to matters personal to Ms Harris. Those personal matters are said to be addressed in the UFU's outline of submissions at [12]-[20][2] and in the UFU's reply submissions at [2]-[6].[3]

• [12] The CFA opposes the application, including in the alternative form proposed by the UFU at the Mention. The CFA submits that it has filed witness statements from its two key decision makers involved in the restructure: Mr Paul Ramage, General Manager of Governance, Legal and Risk Services and Ms Rebecca Holding, Chief Risk Officer. The CFA says that consistent with those statements, Mr Ramage and Ms Holding will give evidence at the hearing explaining the basis for the two relevant positions being declared redundant because they are "excess to CFA's requirements." Ms Holding will also give evidence in relation to the two key decision-making documents for the purposes of the restructure,[4] which are documents falling within the scope of categories 1 and 2.

[13] The CFA's position is that even taken at its highest, the UFU's evidence does not draw a causative link between the matters personal to Ms Harris and the relevant roles being declared redundant. Accordingly, the CFA contends that the UFU is engaging in a fishing expedition to determine whether there are any documents that reveal an evidentiary basis for its contentions.

[14] Further, the CFA contends that the establishment of the new role of Senior Risk Business Partner and Business Continuity is not, on its face, relevant to any of the issues to be determined, as it is not alleged that establishing this role was because of matters personal to Ms Harris.

• [15] The CFA also relies upon the statutory declaration of Mr David Johns in support of its position that compliance with the orders sought would place an unreasonable burden on the CFA given their breadth and scope.[5]

[16] I am not persuaded that it is appropriate to exercise my discretion to make the orders sought by the UFU in either (a) the form proposed in the Schedule attached to the application, and (b) the alternative form of order proposed orally at the Mention.

[17] The UFU submits that the documents sought will address the UFU's case with respect to agreed Question 2. The focus of Question 2 is on whether the Business Continuity Advisor and Manager Risk & Assurance roles are excess to the CFA's requirements as a result of a change to the way the duties are performed or because the duties are no longer required to be performed.

[18] It is to be noted that Question 2 does not concern the establishment of the Senior Risk Business Partner and Business Continuity role, which is the subject of category 3. In these circumstances the documents sought by category 3 bear no relevance to the question to be determined. I do not accept the UFU's contention, made orally at the Mention, that the establishment of the new role is relevantly linked to the decision to declare the Business Continuity Advisor and Manager Risk & Assurance roles redundant. But even if I were to accept this contention, that is not the issue with which Question 2 is concerned. I therefore decline to exercise my discretion in favour of making the orders sought by the UFU in category 3.

[19] As to categories 1 and 2, the UFU submits that the documents sought are relevant to its "circumstantial" case that the true reason or reasons for the decision to declare the Business Continuity Advisor and Manager Risk & Assurance roles excess to requirements relate to matters personal to Ms Harris. The UFU relies upon the following matters in support of its position:

(a) In late 2021, Ms Harris made complaints within the CFA regarding the conduct of the Acting Group General Manager, Strategic Services Group and other former Strategic Team members.

(b) In early 2021, Ms Harris raised an issue involving a breach of privacy and health data relating to CFA employees.

(c) In May 2022, Ms Harris was known by CFA managers to have been deeply upset by comments made during a CFA CEO/CO forum.

(d) From July 2022, Ms Harris raised with her manager concerns about unreasonable workloads.

(e) In September 2022, Ms Harris' manager, on a number of occasions, referred to her performance managing her direct report "out" of the CFA.

(f) In September 2022, Ms Harris' manager made a comment about putting Ms Harris on a performance management plan.

(g) In October 2022, Ms Harris commenced a period of leave and ultimately brought a Workcover claim that was accepted by the CFA's insurer.

[20] The UFU's case is that there is a reasonable basis to infer that the relevant two roles were made redundant because of the matters set out at (a) to (g) above. To this end, the documents in categories 1 and 2 are sought by the UFU for the purpose of exploring whether such an inference can be supported by any written materials.

• [21] The exercise of the discretion in s 590(2)(c) is to be guided by the principles adopted by courts in civil proceedings when dealing with subpoena applications.[6] It is well established that the documents sought must have apparent relevance to the issues in the proceedings,[7] in the sense that they have some potential relevance.[8] Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced.[9] The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.[10] Further, the exercise of the Commission's discretion is guided by 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 them to advance their respective cases.[11]

[22] The UFU's contention as to the CFA's true motive for declaring the relevant roles redundant is a matter which it has placed in issue and will require resolution at the hearing. The true motive is alleged to be the matters personal to Ms Harris, which is the central element of the UFU's case sought to be advanced by the issuance of the proposed orders.

[23] It may be that a document or documents exist that may reveal this true motive, and which fall within the class of documents in categories 1 and 2 of the proposed order. However, there is nothing in the evidence before me which suggests that such a document exists. The UFU relies on the "circumstantial" case it has built with reference to the matters raised by Ms Harris in her statement in support of its contention that such documents exist. In response to the UFU's submissions, the CFA notes that there is no identifiable circumstantial evidence, and instead the UFU relies solely on the assertions of Ms Harris in support of its F52 application which are not themselves circumstantial evidence.

[24] In any event, the parties agree that the apparent relevance of the class of documents in categories 1 and 2 to the UFU's case is contingent upon the documents revealed upon execution of the orders, and it may be that the class of documents is entirely irrelevant. The exercise of the discretion conferred by s 590(2)(c) is not rationally exercisable merely upon the identification of an abstract class of documents that may contain documents that relate to an issue. The other principles adopted by the courts must be considered as a guide, as well as the specific context of a particular dispute to ensure that both parties are enabled to advance their respective cases and the Commission is appropriately informed. In circumstances where both parties have filed materials in preparation for a final hearing, I consider it prudent to assess the apparent relevance of the class of documents in categories 1 and 2 of the proposed order against the untested evidence presently before me.

[25] The material filed by the CFA provides detailed evidence to substantiate its reasons for the decision to declare four positions redundant including the Business Continuity Advisor role and the Manager Risk & Assurance role. The UFU will be given the opportunity to cross-examine the key CFA decision-makers involved in this decision, Ms Holding and Mr Ramage, including with respect to any discussion, deliberation or decision:

(a) to deem the Business Continuity Advisor role and the Manager Risk & Assurance role excess to requirements; and

(b) to establish the new role of Senior Risk and Business Continuity Business Partner.

[26] Further, Ms Holding's statement attests to the two key restructuring documents, explaining how these were prepared and the rationale behind them. Importantly, the UFU has not made submissions that the evidence of Mr Ramage and Ms Holding is incomplete with respect to the restructuring decision, such that further documentary evidence may be necessary to resolve, for example, an evidentiary gap.

[27] Nor has the UFU identified any matter, such as a relevant inconsistency in the statements of Ms Holding or Mr Ramage, which suggests that further documentary evidence may be relevant. When asked about whether the true motive for the redundancies could be appropriately tested during cross examination of Ms Holding and Mr Ramage, the UFU seemingly accepted that it would be in a position to make the inquiries necessary to establish its evidentiary case, but submits the documentary evidence may provide it with "insight" and allow it to contradict a witness statement. In circumstances where there is no suggestion that the evidence of Ms Holding and Mr Ramage is not credible, I am not persuaded by this argument. Should the hearing process elicit a basis for the inference that the UFU urges, the UFU will be at liberty to apply to the Commission for an order for production of documents that relevantly bear upon that matter.

[28] In my view, taking into account the matters discussed at [26]-[27], the apparent relevance of the class of documents is diminished.

• [29] In these circumstances, the contention that the UFU will be prejudiced by a refusal to grant this application cannot be accepted.[12] In my view, the proper administration of justice will be enabled regardless of whether an order in the terms sought by categories 1 and 2 is made. In the absence of a contrary indicator, it is entirely orthodox for a dispute concerning whether a role is "excess to requirements," or whether there is some other motive for a role being declared redundant, to be determined on the basis of the key decision documents and evidence of key decision makers where all the evidence is appropriately interrogated.

[30] I turn to consider the other principles set out above at [21]. The statutory declaration of Mr David Johns at [11]-[19] contends that the making of the proposed orders would impose an unreasonable burden on the CFA, because the documents are not identified with sufficient particularity and are excessively broad. Mr Johns identifies the following matters which I consider to be relevant:

(a) While it is hard to judge the volume of documents the request would cover, Mr Johns anticipates that there would be large volume of documents given the consideration and decision-making required in developing and carrying out the restructure of one of CFA's significant department/functions. In order to locate the requested documents, at least eight people and potentially other people across two areas of the CFA (HR Services and Executive Services) would be captured by the request. Some of the employees captured by the request would also be former employees.

(b) The CFA would need to devote significant resources to complying with the request and unreasonably divert its resources. The documents are not located in a central location as each area has its own filing practices which may span multiple different servers. Therefore, complying with the order would require CFA employees to develop a standardised set of key search terms to enable employees to conduct comprehensive manual searches of their inboxes and files to identify any relevant documents, with searches having to be conducted across multiple parameters and words. It would also involve each individual carrying out their own searches and a member of the CFA carrying out the same functions with respect to former employees, as well as requiring input from IT personnel and CFA's lawyers.

(c) The scope of the orders sought captures a large number of irrelevant or commercially sensitive documents.

[31] I accept these contentions, having regard to the requirement to produce documents recording any discussion, deliberation or decision by or for the purpose of three directorates of the CFA in respect of the relevant roles for a period in excess of 10 months. Further, I note that the matters in Mr Johns' statutory declaration were not the subject of any challenge at the Mention.

[32] The alternative form of orders proposed orally by the UFU does not ameliorate these concerns. In circumstances where Ms Harris' evidence is that she substantively held one of the relevant roles and was temporarily performing the other, I accept the CFA's contention that limiting the terms of the order to documents comprising Ms Harris by name does little to reduce its potential breadth. I further consider that the UFU's alternative orders will capture documents which concern Ms Harris, not only documents that refer to Ms Harris expressly. In circumstances where documents may tangentially concern Ms Harris, I consider the task to remain unreasonably burdensome.

• [33] Consistent with the relevant status quo provisions, the evidence demonstrates that the role of Senior Risk and Business Continuity Business Partner is currently unfilled, and the recruitment process has been placed on hold pending the determination of this dispute. The CFA contends that it is significantly prejudiced as a result.[13] I consider that the grant of the proposed orders in either the original or alternative form would substantially delay the hearing and this prejudice would continue to accrue as a result of the further delay.[14]

[34] On balance, taking into account the matters discussed, I decline to exercise my discretion in favour of making the orders sought by categories 1 and 2.

[35] The application for an order for the production of documents to the Commission by the UFU dated 28 April 2023 is dismissed.

[4] Statement of Rebecca Holding dated 2 May 2023 at page 23-21

[5] Statutory Declaration of David Johns made 9 May 2023 at [11]-[20]

[6] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847 at [23]; Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6]; see generally, McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 at [35]

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

[8] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 at [35]

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

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

[12] Esso Australia Pty Ltd v Australian Workers Union [2017] FWCFB 2200 at [23]

[13] Witness statement of Rebecca Holding dated 2 May 2023 at [42]-[43]

[14] Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101 at [8]

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