FEDERAL COURT OF AUSTRALIA Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181 Citation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181 Parties: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v EMERGENCY TRANSPORT TECHNOLOGY PTY LTD File number: NSD 1304 of 2010 Judge: COWDROY J Date of judgment: 4 March 2011 Catchwords: PRACTICE AND PROCEDURE – notice to produce – relevance of documents to issues in proceedings – test to be applied to determine relevance of documents for the purpose of a notice to produce – whether notice to produce should be set aside. Legislation: Fair Work Act 2009 (Cth) ss 340, 346 Federal Court Rules Or 33 r 12(1) Freedom of Information Act 1982 (Vic) s 31(1)(e) Cases cited: Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432 Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Jack Brabham Engines Limited v Beare [2010] FCA 35 Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Maritime Union of Australia v Geraldton Port Authority (1993) 93 FCR 34 Seven Network Limited v News Limited (No 11) [2006] FCA 174 Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 Date of hearing: 24 February 2011 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Ms Howell Solicitor for the Applicant: Australian Manufacturing Workers' Union Counsel for the Respondent: Mr Dixon Solicitor for the Respondent: Harmers Workplace Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1304 of 2010 BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant AND: EMERGENCY TRANSPORT TECHNOLOGY PTY LTD Respondent JUDGE: COWDROY J DATE OF ORDER: 4 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Respondent provide to the Applicant the documents requested in paragraphs numbered 5, 8 and 9 of the notice to produce issued on 21 December 2010 by 12.00 pm on 9 March 2011. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISIOn NSD 1304 of 2010 BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant AND: EMERGENCY TRANSPORT TECHNOLOGY PTY LTD Respondent JUDGE: COWDROY J DATE: 4 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These proceedings are listed before this Court for a hearing commencing on 21 March 2011. In the proceedings the applicant, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ('the Union') seeks, inter alia, a declaration that one of its members, Mr Unguroiu was dismissed from his employment with the respondent ('ETT') on 24 September 2010 in contravention of s 340 of the Fair Work Act 2009 (Cth) ('the Fair Work Act') or alternatively s 346 of such Act. 2 During his employment with ETT Mr Unguroiu claims that ETT attempted to transfer him to a different (but related) company in late July 2010; that ETT withheld his entitlements to seek leave pay; and that he was offered significantly less overtime than other employees during the period from July to September 2010 shortly before his dismissal from ETT. The Union believes such actions were associated with his ultimate dismissal. 3 A notice to produce dated 21 December 2010 ('the Notice') has been issued by the Union seeking from ETT various categories of documents. ETT have objected to the production of three categories of documents being those referred to in paragraphs 5, 8 and 9 of the Notice, namely: 5. All documents relating to the proposal or offer to transfer the employment of Mr Unguroiu from the respondent to Emergency Resource Management ('ERM') in July and/or August 2010. 8. All documents relating to consideration by the respondent of Mr Unguroiu's sick leave application for 28 and 29 July 2010. 9. All documents necessary and sufficient to show the amount of overtime worked by employees of the respondent employed as tradespersons or trades assistants during the period from 1 July 2010 to 30 September 2010. 4 The Court is required to determine whether ETT is required to produce documents relating to such categories. Submissions of ETT 5 ETT submits that the challenged paragraphs of the Notice are too wide and relate to matters which are irrelevant for the purpose of the proceedings. 6 The Form 5 Application filed by the Union on 5 October 2010 listed 23 substantive declarations sought by the Union pursuant to ss 340 and 346 of the Fair Work Act. However, on 13 December 2010 the Union informed ETT that it would no longer press for declarations 4-23. As a result ETT asserts that the only remaining issue for determination is whether Mr Unguroiu's dismissal contravened the Fair Work Act. 7 ETT submits that as the Union abandoned declarations 4-23, ETT did not respond to the following allegations in the Union's pleadings, namely, that ETT proposed to transfer Mr Unguroiu to a different company; that it withheld sick leave from Mr Unguroiu; and that it discriminated against him in the allocation of overtime. 8 ETT submits that in these circumstances the factual matters referred to in the relevant paragraphs of the Notice are irrelevant and the Notice thus constitutes an abuse of process. Findings 9 Order 33 rule 12(1) of the Federal Court Rules ('the Rules') makes provision for a party to proceedings to produce documents '… unless the Court otherwise orders…'. The Court is also empowered, by such rule, to set aside a notice to produce: see Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 at [24]-[28]. 10 Justice Foster in BlueScope at [24] said: There is a body of authority in this court to the effect that a Notice to Produce served pursuant to O 33 r 12 FCR has the same coercive effect as a subpoena for production and that compliance with the Notice to Produce is mandatory unless production is excused by the Court or the Notice to Produce is set aside (Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 at [36] (p 380) and the cases cited in that par). The expression in O 33 r 12(1) "… unless the Court otherwise orders …" provides the Court with express power to excuse a party served with a Notice to Produce from producing documents in answer to that Notice. It may also be apt to empower the Court to set aside a Notice to Produce served pursuant to O 33 r 12(1). 11 Thereafter Foster J considered the power of the Court to set aside a notice to produce and at [28]-[29] his Honour said: In addition to the express language of O 33 r 12(1), to which I have referred at [23] above, the Court also has power to regulate its own processes and that power includes the power to set aside a Notice to Produce. The existence of such a power seems to have been assumed by the Full Court in Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 and also by Sackville J in Seven Network Limited v News Limited (No 5) 216 ALR 147 at [9]–[12] (pp 150–152). The principles governing the exercise of the power to set aside a Notice to Produce or to excuse a party served with a Notice to Produce from producing documents in answer to that Notice are the same as the principles which govern the setting aside of a subpoena for production issued to a party. Those principles have been discussed in a number of cases in this Court. 12 Subsequently, Foster J at [30] discussed the principles adopted by this Court in relation to its inherent power to supervise its processes, specifically in relation to the setting aside of a subpoena for production. 13 The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party]. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed]. 14 The Court considers that in deciding whether to set aside a notice to produce, the observations by Beaumont J can be usefully applied by analogy, as was observed by Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174. Sackville J said at [6]: It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5), at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test. 15 More recently in Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31, Perram J when considering whether documents should be produced under a notice to produce, having referred to the test adopted by Sackville J in Seven Network Limited v News Limited (No 11) cited above, said at [3]: …That kind of relevance is often referred to as "apparent relevance". 16 Perram J then continued at [4]: Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material's potential relevance that travels beyond the merely conjectural. It is to be distinguished from the tests applicable in discovery. It is necessary then to attend to the suggested relevance of the present material… 17 Although ETT submitted that a higher test of relevance was required for a notice to produce than for a subpoena, this submission does not accurately reflect the Court's practice. In Sportsbet Perram J said at [9]: The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery. 18 The 'reasonably likely' test referred to by Sackville J may be usefully compared to an identical phrase contained in s 31(1)(e) of the Freedom of Information Act 1982 (Vic). Such section exempts a document from disclosure under such Act if it would be 'reasonably likely to', inter alia, endanger persons engaged with law enforcement. In Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, a decision of the Full Court, Marks J said of the expression 'reasonably likely' at 842: The expression "reasonably likely" is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is "odds on", or where between nil and certainty it should be placed. A chance which in common parlance is described as "reasonable" is one that is "fair", "sufficient" or "worth noting". It is not inapt to attribute such meaning to the expression in s. 31(1) of the Act. 19 Although the context in Binnie is different to the present context, the observations of the Victorian Full Court concerning the phrase 'reasonably likely' are useful and are consistent with the observations of Perram J in Sportsbet and of Sackville J in Seven Network Limited v News Limited (No 11). 20 Accordingly, for the Court to be satisfied that the documents should be produced, it must be 'reasonably likely' that the documents will be relevant to the issues arising concerning the dismissal of Mr Unguroiu. If they are, no question of abuse of process, as was considered in Jack Brabham Engines Limited v Beare [2010] FCA 35 can arise. 21 ETT is correct in its submission that the ultimate issue for the Court to determine upon the hearing is whether the dismissal of Mr Unguroiu was in contravention of the Fair Work Act. By virtue of s 361 of the Fair Work Act the onus rests upon ETT to prove that the immediate or operative reason for its dismissal of Mr Unguroiu was not prohibited under the Fair Work Act: see Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]-[55]. 22 In that decision, Branson J at [38]-[42] referred to the concept of a 'prohibited reason' and referred at [42] to the decision of R D Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1993) 93 FCR 34 where his Honour said at [294]-[296] inter alia: Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact. It will often involve questions of judgment and the characterisation of the employer's reasons: cf Wood v City of Melbourne (1979) 26 ALR 430. For example, if an employer made a decision to make his operation more efficient or to facilitate the provision of services to the service users at a lower cost (and for no other reason) that action is not open to the inference of having been taken for reasons which include that the employees are members of a union or have the benefit of an award. The critical question, however, is what were the actual reasons of the GPA and hence of each of its members. Issues Arising 23 Whilst the Court is required to determine the immediate reason for Mr Unguroui's dismissal, numerous other factors may have to be considered, including the events which preceded and which possibly culminated in his dismissal. 24 The evidence suggests that certain conduct by ETT in the months preceding the dismissal may have been associated with the dismissal or at the very least be apparently relevant to the dismissal. In Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 the Full Court considered whether events related to a downgrading of an employee could be relevant. Having referred to the suggestion that the operations manager had deliberately downgraded the 'scoring' of the employee, the Full Court said at [32]: One possible explanation in those circumstances would be that Lay had fabricated incidents to justify a low ranking which was, in fact, based upon the prohibited reason. The point, however, goes beyond an individual instance. The question at issue was the bona fides of the ranking of Elliott. This cannot be judged in isolation from either the conduct of Elliott which was relied upon for the ranking, or the history of Elliott's employment by Kodak, which covered a period of 18 years and included promotions on merit. After all, the ranking was designed to assess the value of the various employees to Kodak. It is an issue of broad assessment in which impression and even intuition may play a part. If, on the totality of the evidence, it may be inferred that Elliott became regarded by Kodak as less valuable as an employee after he became an active union delegate, such an inference could be taken into account in determining whether, on the balance of probabilities, Kodak had established that its reasons for dismissing Elliott did not include the reason that Elliott was a union delegate. 25 The issues raised in the present proceedings will give rise to similar considerations. The matters concerning the transfer of Mr Unguroiu to a different employer; the alleged delay in making payment for his sick leave and the claim of discrimination concerning the allocation of overtime are all matters which fell in the period immediately before the dismissal and have an 'apparent relevance' to the dismissal. From the evidence filed to date it appears that the subject matter referred to in paragraphs 5, 8 and 9 of the Notice are 'reasonable likely' to be relevant or have an 'apparent relevance' to the dismissal. 26 In summary, the Court is satisfied that the material contained in the Notice to which objection has been taken 'could reasonably be expected to throw light on some of the issues in the principal proceedings': see Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432 per Spender J. 27 The applicant could be at a severe disadvantage if such records were not made available to it and further, the Court may be constrained in the determination of necessary facts which might prove relevant. Orders 28 For the above reasons the Court orders that the respondent provide to the applicant the documents requested in paragraphs numbered 5, 8 and 9 of the Notice issued by the Union on 21 December 2010 by 12.00 pm on March 9 2011. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 4 March 2011