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. The law 1. The principles surrounding subpoenas and in the case of the Commission, summons to produce, are well established. Summons or notice to produce under the Industrial Relations Act 1996 (NSW) are equivalent to subpoena. When considering an application to set aside summons to produce, apart from its own precedents, the Commission is justified to draw upon the principles established by superior courts in relation to subpoenas. 2. In Inspector Estriech v Leon [2012] NSWIRComm 84, Boland J considered the principles that apply to the application to set aside summonses issued by the Industrial Registrar. This decision is a comprehensive review of the relevant case law (both criminal and civil cases) by the then President of the Industrial Court of NSW. 3. In recent Court of Appeal decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council"), Bell P said, at [68]: "There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside." 1. And further, at [71]: "the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate." 1. Brereton JA said this (at [89]): "Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." The decision 1. I now turn to the documents filed to date. The Respondent has not filed a response. The matter is listed for hearing in February 2022 and, as at December 2021, I have on file a Notification, witness statements and a number of documents relating to summons the subject of this application. 2. I note the Commission is not a court of strict pleadings. Without the Respondent's response, I am relying on general principles as set out in the Respondent's submissions filed in relation to this application. 3. I can glean the Notifier's case from the short Notification document. Its case appears to be that the Respondent had no cause to commence the investigation into the three union members and, having investigated the members, the Respondent unreasonably issued disciplinary action against them. 4. I also understand from the Notifier's submissions that it will be running the case of general victimisation of the union delegates at the workplace. That seems to fit into the USU's unreasonableness argument. 5. Having reviewed the disputed Items of the summons, and in light of a broader approach to subpoenas taken in Blacktown City Council, I find that documents sought are apparently relevant and have a legitimate forensic purpose in that they can throw light on the possible tendency by the Respondent to treat union delegates differently and additionally, may throw light or be used in cross-examination, including on credit of the Respondent's witnesses. 6. I dismiss the Notice of Motion. 7. I make the following orders and notations: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2021