FEDERAL COURT OF AUSTRALIA Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corporation [2001] FCA 587 PRACTICE AND PROCEDURE – use of eCourt – discovery – scope of discovery – where applicant's standing derives from having members against whom conduct has been, is being or would be carried out – where applicant is a party to awards and agreements binding on all relevant employees – allegation of a prohibited reason applicable to members and non-members – whether discovery limited to documents in respect of employees who are members of the applicant Workplace Relations Act 1996 (Cth) ss 4(1), 170LJ, 170M(1), 298B(1), 298G(1), 298K(1), 298L(1), 298M, 298T(2) Bertran v Vanstone [1999] FCA 1753, referred to Commonwealth v Northern Land Council (1991) 30 FCR 1, applied COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA v AUSTRALIAN POSTAL CORPORATION V 1001 of 2000 GRAY J 18 MAY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY 1001 of 2000 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA APPLICANT AND: AUSTRALIAN POSTAL CORPORATION RESPONDENT JUDGE: GRAY J DATE OF ORDER: 18 MAY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 22 June 2001, in accordance with O 15 r 6 of the Federal Court Rules, the respondent file and serve a verified list of documents in each of the forty-five categories of documents sought by the applicant with the following exceptions: (a) categories 4, 5, 13, 14, 16, 37, 38, 39, 41, 42 and 43; (b) categories 3, 36 and 40 are to be limited at this stage to documents recording any relevant decision; and (c) category 20 is to be limited to a period agreed between the parties sufficient to establish an average level of overtime worked. 2. The parties are directed to negotiate with a view to reaching an agreement with respect to a suitable period for discovery of documents in category 20. 3. The respondent make available its discovered documents for inspection on or before 29 June 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY 1001 of 2000 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA APPLICANT AND: AUSTRALIAN POSTAL CORPORATION RESPONDENT JUDGE: GRAY J DATE: 18 MAY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By its application filed on 22 December 2000, the applicant seeks relief based on s 298K(1) and s 298M of the Workplace Relations Act 1996 (Cth) ("the Act"). An amended statement of claim was filed on 16 March 2001 and an amended defence on 30 March 2001. 2 The parties have been unable to agree as to the categories of documents of which the respondent should make discovery, bearing in mind the considerations raised by the Court's Practice Note No. 14. 3 The dispute in relation to the respondent's discovery has been dealt with by means of the Court's eCourt facility. A bulletin board, open only to me, my associate and the designated representatives of the parties, was created, accessible from the Court's internet home page. On this bulletin board, I posted directions as to how the dispute was to be dealt with and the parties posted written submissions. One advantage that this procedure has over the conduct of argument about a dispute such as this on a single day in court is that it allows the parties to take a little time to consider their positions and to instruct their representatives before making submissions about issues that arise in the course of the argument. These reasons for judgment and the orders I make will also be posted on the bulletin board. In due course, the entire bulletin board will be opened to the public, to satisfy the need for the administration of justice to be open and public. 4 Much of the material submitted was set out in tabular form. By the time the applicants had submitted material in reply to the respondent's submissions, the table contained three columns. In the first column were described forty-five numbered categories of documents of which the applicant sought discovery. The second column contained the respondent's specific response to each category. Eventually, this column came to contain the respondent's amended response and its reply to the applicant's answering submissions. Those answering submissions were contained in the third column. The use of the table was a very convenient way of dealing with a dispute such as this. In addition, the parties made written submissions about certain general issues. In respect of a number of categories of documents, the respondent takes no objection to being obliged to discover documents described in those categories. 5 It is unnecessary for me to deal with the matter on a category by category basis. These reasons for judgment deal with issues that were raised in relation to one or more categories of documents. It is enough to determine those issues and to make orders that reflect the manner in which they are determined. The scope of discovery with respect to employees 6 Central to the applicant's claims in the proceeding is a decision by the respondent to contract out aspects of its parcel delivery services in the metropolitan area of Melbourne and the Mornington Peninsula, instead of continuing to have them performed by its own employees. The applicant alleges that those employees are entitled to the benefit of awards and agreements made under the Act and that this entitlement is a reason for the decision to contract out the services. If that is so, it is a prohibited reason pursuant to s 298L(1)(h) of the Act. The applicant alleges that, for that prohibited reason, the respondent has dismissed employees, injured employees in their employment or altered the position of employees to the employees' prejudice, in contravention of s 298K(1) of the Act. In the amended statement of claim, the applicant alleges that some, but not all, of the employees who were engaged to perform the work that the respondent has decided to contract out were members of the applicant. 7 In relation to several categories of documents, the respondent seeks to limit discovery to those documents relating to the employees concerned who were members of the applicant. The applicant seeks discovery of those categories of documents with respect to all of the relevant employees. 8 The applicant's standing to bring a proceeding of this kind is to be determined by the application of the provisions of s 298T of the Act. Section 298T(2) provides as follows: "The application may be made by: (a) the person, referred to in the provision in question, against whom the conduct has been, is being or would be carried out; or (b) in the case of a contravention of this Part by virtue of the operation of section 298D, 298E or 298F - an organisation of which the person is a member; or (c) in the case of a contravention of this Part by virtue of the operation of section 298G or 298H - an industrial association of which the person is a member; or (d) the Employment Advocate; or (e) any other person prescribed by the regulations." 9 In this case, the applicant relies on s 298G to seek to establish that it has a right to bring the proceeding. Section 298G(1)(a) provides that Pt XA of the Act (in which the relevant provisions are to be found) applies to conduct by a "constitutional corporation". That term is defined in s 4(1) as including "a Commonwealth authority". That term is also defined in terms which appear apt to cover the respondent ("a body corporate established for a public purpose by or under a law of the Commonwealth" or "a body corporate … incorporated under a law of the Commonwealth … and … in which the Commonwealth has a controlling interest"). In the amended pleadings, it is alleged, and admitted, that the respondent is a corporation created pursuant to the Australian Postal Corporation Act 1989 (Cth) and that it is a constitutional corporation of the kind described in s 4 of the Act. 10 It will be noted that s 298T(2) predicates the standing of an industrial association to bring a proceeding upon the fact of the person against whom the conduct has been, is being or would be carried out being a member of the association. The definition of "industrial association" in s 298B(1) of the Act includes "an organisation", a term defined in s 4(1) to mean an organisation registered under the Act. Again, in the amended pleadings, it is alleged, and admitted, that the applicant is an organisation of employees registered under the Act and an industrial association within the meaning of the phrase as used in Part XA of the Act. 11 The amended statement of claim alleges that there are two awards, made by the Australian Industrial Relations Commission under the Act, which awards are binding on the applicant and the respondent. These allegations are admitted. The amended statement of claim then refers to what is described as an "Enterprise Agreement", entitled the Australia Post Enterprise Agreement 1999-2001, which is said to have been made and certified by the Australian Industrial Relations Commission pursuant to the Act. This allegation is admitted. The amended statement of claim also refers to the Australia Post Redundancy Redeployment Retraining Agreement 1995, which it alleges is an agreement made pursuant to s 170LJ of the Act. The respondent contends that this latter agreement was certified under the Industrial Relations Act 1988 (Cth). It is alleged and admitted that both agreements were agreed to and made between the applicant and the respondent. It is alleged and admitted that the awards and the agreements applied to the employment of the employees who were engaged in the delivery of parcels for the respondent prior to the decision to contract out those services. There appears to be no dispute that the awards and the agreements each fall within the meaning of the term "industrial instrument" in s 298L(1)(h) of the Act, as that term is defined in s 298B(1). 12 The respondent in its amended defence appears to accept that no distinction is drawn in the application of the awards and the agreements between employees who are members of the applicant and those who are not. The amended statement of claim contains a definition of the term "delivery drivers", which is limited to the applicant's members, but appears to use the term (a term which the respondent says is not used by it or in the awards or agreements) without regard to this limitation. For instance, par 9 alleges that approximately 75 per cent of the delivery drivers were members of the applicant. The issue whether the respondent has acted for the prohibited reason referred to in s 298L(1)(h) may be determined by reference to any of its employees entitled to the benefit of those awards and agreements, irrespective of whether the employees concerned were members of the applicant. There is a long standing practice of the Australian Industrial Relations Commission and its predecessors of making awards binding employers in respect of all of their employees, regardless of whether or not those employees are members of any organisation of employees. Section 170LJ of the Act provides for agreements between an employer and one or more organisations of employees where, when the agreement is made, each organisation: has at least one member employed whose employment will be subject to the agreement; and is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. Once such an agreement is certified pursuant to Div 4 of Pt VIB of the Act, s 170M(1) provides that the certified agreement binds the employer and all persons whose employment is, at any time when the agreement is in operation, subject to the agreement. 13 Thus, the applicant is required to establish that it has at least one member against whom the conduct alleged has been, is being or would be carried out, in order to gain standing to bring the proceeding pursuant to s 298T(2). In par 9 of the amended statement of claim, it alleges that, at the relevant date, approximately 75 per cent of the relevant employees were members of the applicant. Assuming it has standing to sue, the applicant is entitled to allege that the respondent has acted for a prohibited reason affecting both its members and employees who are not its members, who are entitled to the benefit of the relevant industrial instruments. The question of membership of an organisation or industrial association is not relevant to the particular prohibited reason alleged. As a party to each of the awards and the agreements, the applicant has an interest in ensuring that the standards laid down in them are maintained, not only with respect to its own members, but also with respect to other employees, so that the entitlements of its members are not undercut by non-members. 14 In par 6A of the amended statement of claim, the applicant alleges that it brings the application on behalf of itself and on behalf of employees of the respondent who were performing the relevant work at the relevant date and who are or were members of the applicant. It has thereby invoked its interest as a party to each of the relevant industrial instruments, whilst relying on s 298T(2) and the fact that some of the affected employees are alleged to have been its members to obtain standing. The allegation of the prohibited reason referred to in s 298L(1)(h) is not limited to members of the applicant. For these reasons, in my view, it is inappropriate to limit any category of discovered documents to those affecting only members of the applicant. The categories of documents sought with respect to the employees performing the relevant work prior to the making of the respondent's decision, relating to all of the employees, should be discovered. Fishing 15 In respect of a number of categories of documents sought, the respondent contends that the applicant is engaged in fishing. This is a shorthand way of suggesting that the applicant is intending to find some basis on which to bring a case that it has not brought. It is plain from cases such as Bertran v Vanstone [1999] FCA 1753 that objection cannot be taken to the discovery of documents relevant to an issue which is apparent on the pleadings. The categories of documents to which the respondent objects on this ground are all related to issues apparent on the pleadings. It cannot be said that the applicant is fishing. Oppression 16 In respect of some categories of documents, the respondent contends that it would be oppressed by having to make discovery. Beyond some statements in its submissions, it offers no evidence that it would be oppressed by having to locate and list the relevant categories of documents. This is by no means a large case. On the pleadings, it relates to no more than 265 employees. Certainly, some categories of documents will require the respondent to go to its records in more than one place and in some cases in states other than Victoria. I am by no means satisfied that a publicly owned corporation that keeps records and archives would find it oppressive to undertake this task. In the absence of evidence to that effect, I cannot so find. 17 In any event, as will be seen below, I am of the view that, at least at the first stage of discovery, some limit should be placed on some categories of documents sought by the applicant. This may operate to reduce the size of the task with which the respondent is confronted. Relevance 18 Objection is also taken with respect to some categories on the ground of relevance. As appears from Commonwealth v Northern Land Council (1991) 30 FCR 1 at 23 - 24, the test of relevance for the purposes of discovery of documents is a broad one. As the Court said: "A document relates to a matter in question between the parties if it is 'reasonable to suppose' that the document 'contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary'. A document will answer that description if it may fairly lead to a train of inquiry which might have either of those consequences." 19 I am generally of the view that the categories of documents sought by the applicant are relevant. Exceptions appear below when I deal with the disallowance of some categories and limitations to be imposed on others. Particular categories 20 In several instances, the applicant has sought documents "recording or communicating or referring to" a particular decision or matter, followed by any document "considered or taken into account by any decision-maker" relating to that decision or matter and any document "recording or communicating or referring to any reason or reasons for the making of a decision" of that kind. Such combinations of categories are to be found in categories 3, 4 and 5, categories 36, 37 and 38 and categories 40, 41 and 42. In addition, in categories 39 and 43, there are sought documents "recording or communicating or referring to any policy, strategy, direction, instruction or other action in implementation of a decision" of the kind identified in category 36 and category 40 respectively. In my view, the ranges of documents thus sought are excessive. They are not within the spirit of Practice Note No. 14. It would be appropriate at this stage to limit discovery to documents actually recording the decisions concerned. If such documents are discovered, consideration can then be given by the parties and, if necessary the Court, as to whether further discovery of documents relating to those decisions might be appropriate. 21 In categories 11 and 12, documents are sought relating to what the respondent has pleaded as "options" and "commitments" it offered or gave to employees at the relevant time (now found in par 26 of the amended defence). Category 13 seeks documents related to or dealing with any assessment made by the respondent as to its capacity to honour the options and commitments. Category 14 seeks documents relating to the implementation of the commitments including any document dealing with whether in relation to any delivery driver the commitments have or have not been honoured by the respondent. In my view, the documents sought in categories 13 and 14 are insufficiently relevant to the issues raised in the proceeding to require that they be discovered. 22 I take a similar view with respect to the relevance of the documents sought by category 16, which are those dealing with the dismissal of, or non-renewal of any contract of employment of, any employee of the respondent for the purpose of or related to the redeployment since 1 January 2001 of any Melbourne delivery driver. 23 There is controversy between the parties in relation to category 20. That seeks documents in relation to each Melbourne delivery driver who has been redeployed into an alternative position, sufficient to show the average amount of overtime worked during the year 2000 by employees in equivalent positions and at the same location as that to which the delivery driver has been redeployed. In my view, it should be unnecessary to examine documents covering the whole of the year 2000 in order to obtain information as to the average amount of overtime worked. I propose to direct that the parties seek to reach agreement on a period which would be sufficient to show such an average. Timetable 24 At one time, there was pressure for an early trial of the proceeding. That pressure has abated, at least to the extent that it is clear that the trial will not be before September 2001. In the circumstances, it is appropriate to require that the respondent serve and file its verified list of documents by Friday, 22 June and make its discovered documents available for inspection by Friday, 29 June 2001. Orders 25 The orders I make therefore will be in the following terms: 1. On or before 22 June 2001, in accordance with O 15 r 6 of the Federal Court Rules, the respondent file and serve a verified list of documents in each of the forty-five categories of documents sought by the applicant with the following exceptions: (a) categories 4, 5, 13, 14, 16, 37, 38, 39, 41, 42 and 43; (b) categories 3, 36 and 40 are to be limited at this stage to documents recording any relevant decision; and (c) category 20 is to be limited to a period agreed between the parties sufficient to establish an average level of overtime worked. 2. The parties are directed to negotiate with a view to reaching an agreement with respect to a suitable period for discovery of documents in category 20. 3. The respondent make available its discovered documents for inspection on or before 29 June 2001. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 18 May 2001 Counsel for the Applicant: Mr M Bromberg and Mr C Dowling Solicitor for the Applicant: Slater & Gordon Solicitor for the Respondent: Minter Ellison Date of Hearing on eCourt: 10 April 2001 – 14 May 2001 Date of Judgment: 18 May 2001