New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Shellharbour City Council [2021] NSWIRComm 1097

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Shellharbour City Council [2021] NSWIRComm 1097 Hearing dates: 1 December 2021 Decision date: 13 December 2021 Jurisdiction: Industrial Relations Commission Before: Acting Industrial Registrar Hoskinson Decision: 1. I note that there is no dispute as to production under Items (1) and (2); 2. Respondent Council is to comply with Items (3) to (5) of the summons; 3. Matter stood over to 19 January 2022 at 9:15am in the return of summons list. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – motion to set aside summons to produce Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Inspector Estriech v Leon [2012] NSWIRComm Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Shellharbour City Council (Applicant on the Notice of Motion) New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Respondent on the Notice of Motion) Representation: Solicitors: Ms O'Neill (Applicant on the Notice of Motion) Mr Geddes (Respondent on the Notice of Motion) File Number(s): 2021/248505

decision 1. This is an interlocutory application filed by Shellharbour City Council (the Respondent in the substantive matter) on 1 November 2021 to set aside Items (3), (4) and (5) of summons for production of documents. The summons was issued on 20 October 2021 by the NSW Local Government, Clerical, Administrative, Energy and Utilities Union ("USU") (the Notifier) to the Respondent. 2. The substantive matter concerns notification of industrial dispute under s 130 of the Industrial Relations Act 1996 (NSW) whereby the USU alleges that the Respondent unreasonably issued disciplinary action against three of the delegates. 3. In determining the substantive claim, the Commission will need to make a determination about the following matters: 1. Were the investigations into the allegations undertaken in a proper and fair manner; 2. Was the issuing of disciplinary action to the three delegates reasonable in the circumstances. 1. The Items in dispute are as follows: 3. Copy of the full investigation report completed by Neil Arnold on or around 3rd September 2021 into David Ryman, including full copies of all witness statements taken by Neil Arnold throughout the investigation along with all documents supplied to Neil Arnold throughout the investigation. 4. Copy of the full investigation report completed by Neil Arnold on or around 3rd September 2021 into Richard Hurd, including full copies of all witness statements taken by Neil Arnold throughout the investigation along with all documents supplied to Neil Arnold throughout the investigation. 5. Copy of all statements, file notes and documents, emails of any grievances or complaints made by or against Paula Core, Louise Hakkenbrock, and Belinda Caruana that was dealt with by Lisa Dorma, Human Resources Business Partner Shellharbour Council in the calendar year 2019, 2020 and 2021. 1. The Respondent contends that Items (3) and (4) concern matters that are unrelated to the Respondent's investigation into the three union delegates, the subject of this dispute. 2. The Respondent states that there is no legitimate forensic purpose in calling for Items (3), (4) and (5) and that it constitutes a fishing expedition to gather other information, not relevant to the current proceedings. 3. The Notifier opposes the motion and states that the documents are required because they are relevant and evidentiary in the proceedings. The Notifier contends that the documents are relevant to the current dispute because they demonstrate a culture of victimisation of the union delegates in the workplace. The Notifier contends that the documents will assist it in demonstrating a broader pattern of behaviour of the Respondent. 4. The Notifier further submits that documents called for in Items (3) to (5) are required for the purposes of cross-examination and are relevant to credit of the Respondent's witnesses.