[2015] FWCFB 2460

The attached document replaces the document previously issued with the above code on 10 April 2015.

The document has been edited to correct a typographical error in paragraph [24] by inserting the word “to” in the first sentence.

Katrine Huynh

Associate to Vice President Hatcher

Dated 25 May 2015

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decisions [2015] FWC 1918 and [2015] FWC 2215 of Deputy President Gooley at Melbourne on 19 and 30 March 2015 in matter numbers U2014/13979, 13980, 13981, 13982, 13983 & 13984.

Introduction

[1] Clermont Coal Pty Ltd, Clermont Coal Operations Pty Ltd, Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd (collectively the “appellants”) have applied for permission to appeal the following decisions and orders:

(1) Paragraphs [10] and [24]-[29] of the decision issued by Deputy President Gooley on 19 March 2015 1 (First Decision).

(2) Orders 1-5 of an order for production of documents directed to Collinsville Coal Operations Pty Ltd issued on 20 March 2015 pursuant to the First Decision (First Order).

(3) Orders 1-5 of an order for production of documents directed to Glencore Coal Queensland Pty Ltd issued on 20 March 2015 pursuant to the First Decision (Second Order).

(4) Orders 3, 4, 6 and 7 of an order for production of documents directed to Clermont Coal Pty Ltd issued on 20 March 2015 pursuant to the First Decision (Third Order).

(5) Orders 3, 4, 6 and 7 of an order for production of documents directed to Clermont Coal Operations Pty Ltd issued on 20 March 2015 pursuant to the First Decision (Fourth Order).

(6) The whole of the further decision issued by the Deputy President on 30 March 2015 2 (Second Decision).

(7) The whole of an order for production of documents directed to Collinsville Coal Queensland Pty Ltd issued on 30 March 2015 pursuant to the Second Decision (Fifth Order).

(8) The whole of an order for production of documents directed to Glencore Coal Queensland Pty Ltd issued on 30 March 2015 pursuant to the Second Decision (Sixth Order).

[2] The decisions and orders the subject of the application for permission to appeal were made in connection with six applications for an unfair dismissal remedy filed under s.394 of the Fair Work Act 2009 (FW Act). Each of the six applicants (applicants) was formerly employed by Clermont Coal Operations Pty Ltd, and was dismissed from that employment by reason of redundancy effective from about mid-November 2014. In each application, there is a dispute as to whether the dismissal was a genuine redundancy. What constitutes a genuine redundancy is defined in s.389. The dispute turns upon that part of the definition in s.389(2) - that is, whether it would have been reasonable in all the circumstances for the applicants to have been redeployed within the employer’s enterprise or that of an associated entity. One aspect of the applicants’ case is that s.389(2) requires consideration as to whether it would have been reasonable to redeploy them to perform work for Clermont Coal Operations Pty Ltd, or for an associated entity of Clermont Coal Operations Pty Ltd, that is currently performed by contractors or employees of contractors. Clermont Coal Pty Ltd, Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd are associated entities of Clermont Coal Operations Pty Ltd.

[3] In the First Decision, the Deputy President dealt with a number of objections advanced by the entities in relation to which the applicants sought orders for production (that is, the appellants). The first objection was that certain categories of documents sought in relation to work performed by contractors were not relevant because the test for genuine redundancy under s.389(2) did not require consideration of the reasonableness of an employer or an associated entity of the employer engaging contactors as opposed to employees. The Deputy President dealt with this objection as follows:

“[8] I accept that this question has not been determined by a Full Bench of the Commission. In Technical and Further Education Commission v Pykett 3 the Full Bench said “the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.”

[9] In Teterin and ors v Resource Pacific Pty Ltd 4 the Full Bench did not question the approach of the member at first instance to consider work performed by contractors when he concluded that redeployment was not reasonable.

[10] The proposition put by the respondents is absolute. It submits that the Commission could never consider the reasonableness of redeployment to a position filled or proposed to be filled by a contactor or an employee of a contractor. One only needs to consider the situation where an employer has a number of positions that it intended having done by labour hire workers but circumstances changed and before it engaged the labour hire workers it had to make employees who could do the job redundant. On the interpretation put by the respondents, the Commission could never consider if it would have been reasonable for the employer to redeploy the employees to those positions. The question of the reasonableness of the redeployment must be determined on the evidence before the Commission. I do not consider it appropriate to determine this matter at this stage of the proceedings. This issue is legitimately in dispute between the parties.”

[4] The second objection advanced is not presently relevant. The third objection was that the period in relation to which documents were sought should be confined to 1 September 2014 to 30 November 2014, being the period encompassing from when the decision was made that the applicants’ jobs were no longer required to be performed by anyone to when the dismissals had all taken effect. The Deputy President upheld this objection and restricted any orders to the period 1 September 2014 to 30 November 2014. 5

[5] The fourth objection was that, in relation to the orders seeking documents from Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd, the applicants were “fishing”. The Deputy President rejected this as follows:

“[24] I do not accept Mr Murdoch’s submissions. It is clear that the reasonableness of the redeployment is a matter the Commission must consider. The evidence in relation to both the redeployment opportunities and the reasonableness of redeployment is generally in the possession of the employer and its associated entities. The respondents have submitted and called evidence that redeployment was not reasonable. The employees are not fishing when they seek the production of documents to challenge this contention.”

[6] The final objection was that the orders sought would require the production of confidential documents, including commercially sensitive documents and documents which would reveal the internal deliberations as to the industrial strategy or policy of the relevant entities. In relation to the confidentiality aspect, the Deputy President determined that this could appropriately be dealt with once the documents were produced, including by the making of orders under ss.593 or 594. 6 In relation to orders which sought information about “the total number of employees required to attain optimum direct workforce level at Collinsville”, the Deputy President did not accept that the documents sought would reveal the internal deliberations as to the industrial strategy or policy of the entities.7 Consideration of this objection in relation to some other categories of documents was deferred.8

[7] In the Second Decision the Deputy President dealt with this deferred issue. The production of the documents was ordered on the basis that, once the documents were produced, the applicants would be required to obtain an order from the Member of the Commission allocated the applications for hearing in order to inspect the documents. The Deputy President also confirmed that these further documents required to be produced would be confined to the period 1 September 2014 to 30 November 2014.

Appellants’ submissions

[8] In its submissions in support of its application for permission to appeal, the appellants advanced five propositions:

(1) The Deputy President erred in making orders 1-5 of the First Order and the Second Order, and orders 3 and 4 of the Third Order and the Fourth Order, because the documents sought could not be relevant because s.389(2), on its proper construction, did not require consideration of the reasonableness of an employee to be “redeployed” to a role performed by a labour hire contractor. This submission essentially repeated the first objection raised by the appellants at first instance and rejected by the Deputy President.

(2) Order 1 of the First Order and the Second Order also sought documents that were not relevant insofar as it was not confined to the period 1 September 2014 to 30 November 2014. In this respect, the orders as issued were inconsistent with the First Decision.

(3) Orders 6 and 7 of the Third Order and the Fourth Order were vague and uncertain as to the “policies” required to be produced. The Deputy President failed to deal with the appellants’ submission to this effect made at first instance.

(4) The First Order, Second Order, Fifth Order and Sixth Order were “fishing” in the sense that they were an attempt to discover whether there was any case at all that redeployment to the Collinsville mine would have been reasonable in circumstances where the applicants’ case was currently based merely on suspicion and speculation. The Deputy President erred in rejecting this ground of objection to the orders.

(5) Order 1 of the First Order and the Second Order sought documents which would reveal internal deliberations as to the industrial strategy or policy of Collinsville Coal Operations Pty Ltd and Glencore Coal Queensland Pty Ltd. The Deputy President did not give any reasons for her conclusion otherwise, and that conclusion was in error.

Consideration

[9] Under s.604(1), an appeal lies to a Full Bench only with permission. In relation to such permission, s.604(2) provides: “Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.” The effect of this provision is that permission must be granted if it is in the public interest to do so, but may otherwise be granted on discretionary grounds.

[10] Section 400(1) modifies s.604(2) in relation to a certain category of decisions. It provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[11] “This Part” refers to Part 3-2 of the FW Act, which is concerned with unfair dismissal. If section 400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[12] In this case, the decisions and orders the subject of the appeal were made in relation to applications made under Part 3-2, but involved the exercise of general powers in s.590(2), which lies outside of Part 3-2. The parties were at odds in that circumstance as to whether s.400(1) applied to the appeal: the appellants submitted that it did not, but the respondents submitted that it did.

[13] In Australian Postal Corporation v Gorman 9 the Federal Court (Besanko J) gave consideration as to whether, in an appeal from an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1) applied. The Court said:

“[37] The question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. In this case in considering whether permission to appeal should be granted and in considering the appeal itself the Full Bench was required to apply s 400 of the Act. I did not understand the first respondent to contend otherwise. It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”

[14] Consistent with the Court’s conclusion, we shall approach the appeal on the basis that s.400(1) applies. However, for more abundant caution, we will alternatively state the conclusion we would reach if s.400(1) did not apply.

[15] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment11. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 12

[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 13 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.14

[17] The appeal here is brought against interlocutory decisions and orders. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies. 15

[18] The second and third propositions advanced by the appellants may be disposed of at the outset. In response to the second proposition, the respondents undertook that they would not call on the production of the documents referred to in order 1 of the First Order and the Second Order insofar as they did not pertain to the period 1 September 2014 to 30 November 2014. In response to the third proposition, the respondents accepted that the “policies” referred to in orders 6 and 7 of the Third Order and the Fourth Order were policies in the nature of documents generally available to employees for the purpose of providing guidance on decision-making, and undertook not to call on the production of “policies” under those orders which did not meet that description. We consider that those undertakings remove any utility in granting permission to appeal on the basis of the appellants’ second and third propositions, irrespective of the merits of those propositions. The public interest will not be attracted in respect of an appeal which has no practical utility. 16

[19] The first, and primary, proposition advanced by the appellants in support of its application for permission to appeal rests on a misconceived approach as to the assessment of the relevance of documents for which an interlocutory order for production is sought. The test is whether the documents sought have an apparent relevance to the issues in the proceedings. 17 Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law18, the test of relevance applied by courts has usually also been applied by the Commission. The challenged orders clearly satisfy that test. The applicants in the unfair dismissal applications contend (among other things) that, for the purposes of s.389(2), it was reasonable for them to be redeployed to perform work currently done by contractors. Any documents which would be likely to demonstrate that, during the relevant period, there was work being performed by contractors which could be performed by the applicants would be of apparent relevance to that issue in the case.

[20] That Clermont Coal Operations Pty Ltd intends to argue at the hearing that s.389(2) does not permit the consideration of redeployment to work performed by contractors does not alter the position. The consideration of relevance in relation to an application for an order for the production of documents does not require the advance determination of a contested issue in the matter, with relevance then to be assessed on the basis of that determination. To adopt the approach advanced by the appellants would have the undesirable effect of making an interlocutory hearing concerning production of documents a forum for the resolution of the major issues in contest in the proceedings. The position might be different if a party seeks the production of documents to support a case which is not reasonably arguable. However, it was not suggested by the appellants that the applicants’ case fell into this category. We were not taken to any decision in which the issue in contest has been determined. It remains an issue which will require resolution at the hearing.

[21] No issue of the Commission’s power is involved here. The power of the Commission under s.590(1) to “inform itself in relation to any matter before it in such manner as it considers appropriate”, which under s.590(2)(c) includes requiring the production of copies of documents and records to the Commission, is expressed in very broad terms. The Deputy President clearly had power to make the orders the subject of this appeal.

[22] As to the fourth proposition concerning “fishing”, the Deputy President made an evaluative judgment about this issue. In the absence of any contention that compliance with the orders for production would be oppressive, we do not consider that the public interest would require any revisitation of this issue even if there was an arguable case of error.

[23] In relation to the fifth proposition, this Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced. 19 It is not clear to us why compliance with the relevant orders will require documents of that nature to be disclosed. If, after the orders are complied with, a view crystallises on the part of any of the appellants that any of the documents produced would disclose internal deliberations as to industrial strategy or policy, they may, consistent with what was stated by the Deputy President in her decisions, apply to the Member hearing the substantive proceedings for orders to be made to impose appropriate limitations on access to the documents (including, for example, the redaction of documents). If the documents ultimately find their way into evidence, a party may apply to the Member for confidentiality orders under ss.593 or 594 of the FW Act. If any such application was made, we do not consider that the Member, who would have the capacity to inspect the particular documents in question, would be in any way bound by the view expressed by the Deputy President in paragraph [27] of the First Decision (or by any view we have expressed). In those circumstances, there does not appear to us to be any utility in granting permission to appeal in respect of this issue, taking into account that it was not suggested that the applicants sought the production of the relevant documents for any collateral or improper purpose.

[24] Having considered all of the matters raised by the appellants, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal. Alternatively, even if s.400(1) is not applicable to this case, we are not satisfied that the appellants have advanced any discretionary ground which would justify the grant of permission to appeal.

[25] Permission to appeal is therefore refused.

VICE PRESIDENT

Appearances:

C. Murdoch of counsel with K.Anderson solicitor for the appellants.

S. Crawshaw SC with A.Bukarica for the respondents.

Hearing details:

2015.

Sydney:

8 April.

<Price code C, PR562928>

 1   [2015] FWC 1918

 2   [2015] FWC 2215

 3   [2014] FWCFB 714

 4   [2014] FWCFB 4125

 5   First Decision at [19]-[21]

 6   First Decision at [26]

 7   First Decision at [27]

 8   First Decision at [29]

 9   [2011] FCA 975

 10   (2011) 192 FCR 78 at [43]

 11   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 12   (2010) 197 IR 266 at [27]

 13   Wan v AIRC (2001) 116 FCR 481 at [30]

 14   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe [2014] FWCFB 1663 at [28]

 15   See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.

 16   Ferrymen Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8025 at [48]

 17   Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103; Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Print H2892, 2 June 1988

 18   Re Clerks (Alcoa) Case Print H2892 at p 2: “In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents”.

 19   Comalco Aluminium (Bell Bay) Limited v AWU-FIME Print L5800, 13 October 1994; Finance Sector Union of Australia v Comsec Trading Limited PR946862 [2004] AIRC 708 at [27]. As a general proposition, confidentiality or commercial sensitivity alone is not taken to be a proper ground for objection to the production of relevant documents to a court or tribunal: Santos Ltd v Pipeline Authority of SA [1996] SASC 5628 per Perry J at [76]-[77].

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