CITATION : 2013 WAIRC 00582 CORAM : PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT HEARD : TUESDAY, 30 JULY 2013 DELIVERED : WEDNESDAY, 7 AUGUST 2013 FILE NO. : P 6 OF 2006, P 7 OF 2006 BETWEEN : THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED Applicant AND DEPARTMENT OF COMMERCE AND OTHERS Respondents CatchWords : Application for discovery – Principles of discovery – Privileged documents – Immunity of Cabinet documents – Legal professional privilege – Public interest in parties not being required to discover internal documents in negotiations or arbitration process Legislation : Industrial Relations Act 1979 s 6, s 27(1)(o), s 32, s 44 Result : Application for discovery dismissed Representation: Applicant : Ms K Hagan and Ms S Van Der Merwe Respondents : Mr D Matthews of counsel and Ms H Hooley Reasons for Decision 1 In 2006 the applicant applied to amend the Public Service Award 1992 and the Government Officers’ Salaries Allowances and Conditions Award 1989 (the awards) to increase the rates of salary for specified callings on the grounds of increased work value. 2 Following a number of conferences convened by the Public Service Arbitrator (the Arbitrator) and lengthy negotiations between the parties, an agreement was reached. This agreement was reflected in a Memorandum of Understanding (MOU) between the parties. The MOU was attached as a schedule to orders of the Arbitrator made on 13 March 2008 (2008 WAIRC 00160), reflecting the parties’ agreement. Increases in the salaries of specified callings were applied from 1 July 2007 and adjustments made to the salaries set out in subsequent enterprise agreements according to the terms of the MOU. 3 The MOU also set out a number of issues which still required resolution. Over the following years, the parties continued to work towards resolution of those issues. During that time there were regular conciliation conferences and progress reports to the Arbitrator and, ultimately, all issues set out in the MOU have been concluded. 4 Towards the end of that process, the Arbitrator, in conference, enquired of the parties how the applications ought to be brought to conclusion. The applicant advised that it sought to have the awards varied to reflect the salary increases, to maintain the safety net to reflect what it says were the agreed work value changes. The respondents objected, saying that they had never agreed to the awards being amended, that the MOU finalised the matter and that the awards could not be amended without the Commission being satisfied that the Principles had been met, in particular, the Work Value Principle. 5 The applicant sought that the Commission determine the issue and the matter was set down for hearing for a preliminary question of whether there was any impediment to the awards being amended, particularly by reference to the respondents’ argument that the issue had been settled. 1340 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 6 On 30 April 2013 the applicant sought discovery, production and inspection of: (a) documents between the respondents, which included the Department of Premier and Cabinet, (or the Public Sector Commission) and the Department of Commerce’s predecessor, DOCEP, concerning: (i) the substance of the CSA’s claim and the substance of the work value reports; (ii) the need or otherwise for the CSA to provide clarification or additional information between the date of submission of the work value reports and the settlement of the MOU on 9 January 2008; (b) the agencies’ written responses to DOCEP on those work value reports; (c) documents concerning consultation, additional research undertaken for the development of DOCEP’s assessment between the date of submission of the work value reports and the settlement of the MOU on 9 January 2008. 7 In response, Robert Michael Gordon Horstman, Executive Director, Labour Relations Division of the Department of Commerce, submitted an affidavit in which he described how the Department had dealt with the claim, particularly the process of drafting the MOU and seeking responses from agencies with regard to work value reports. He attached to his affidavit a list of documents within the scope of the application for discovery and claimed that all documents were privileged and not discoverable. 8 Subsequently an affidavit of Helen Mary Dooley was filed to clarify information she had provided to Mr Horstman and she set out further investigations in respect of documents exchanged between various agencies and respondents in the process. She attached to her affidavit a modified list of documents, HMD1. 9 The respondents’ objections are on a number of grounds, under three categories relating to the development process for the MOU. Document 11 is said to be privileged on the basis of it being a decision of a subcommittee of Cabinet. Documents 1, 2, 9 and 10 are said to be privileged as they relate to deliberations of a decision of a subcommittee of Cabinet, and the remainder are said to relate to internal work done on the MOU and that it is not in the public interest to release those documents. 10 The applicant says that the documents are relevant to a matter in issue and may advance the applicant’s case or damage the other party’s case. The documents are also said to be likely to be crucial evidence in the respondents’ case and they ought to be discovered. 11 The applicant says that the immunity of Cabinet documents is not absolute; that these matters are no longer current and controversial as they were resolved some time ago; the Labour Relations Expenditure Review Committee of Cabinet no longer exists; there is a different government in power, and the core matter in dispute is whether the work value changes were resolved. Mainly, the applicant relies on the matters being relevant to the administration of justice. 12 As to the deliberations of the Cabinet subcommittee, the applicant says that the Cabinet subcommittee is one step removed from any decision or deliberations of Cabinet. 13 As to the third category of documents, the applicant says that these relate to internal work in the production of the MOU, and there is no general principle that internal working documents are to be privileged in this jurisdiction. 14 The respondents say that where parties are legally represented in negotiations, there is no question that documents developed during the negotiation process would be subject to legal professional privilege. In the industrial relations environment, the parties are not often represented by lawyers and therefore, strict legal professional privilege would not apply. However, Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch and The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel and others ((1995) 75 WAIG 1801) the Full Bench extrapolated from the principle of legal professional privilege to apply that concept to documents in matters before the Commission. 15 The respondents also say that the issue is whether the documents would demonstrate, one way or the other, that the respondents agreed to the work value claims made by the applicant to enable the applicant to put to the Commission that increased work value had been demonstrated, thus justifying the amendment of the awards. The applicant’s alternative is to run a full work value case. 16 The respondents say that it does not matter whether the Cabinet subcommittee still exists, but rather the privilege attaches to Cabinet and its deliberations. The fact that the matters are currently before the Commission demonstrates that they are, in fact, still current and controversial. 17 The respondents say that the Commission’s primary obligation is to settle matters before it by agreement between the parties. It is contrary to the interests of settlement of matters that documents prepared by parties during their negotiations, whether they are successful or otherwise, be potentially available to go into the hands of the other side. This would discourage parties from being robust in their consideration and analysis of claims and strategies, and the strengths and weaknesses of their respective cases, particularly in putting those things in writing. This applies to both sides of a dispute. A party ought to be able to put in writing those matters which will assist in internal consideration of settlement without fear that those things might fall into the hands of the other side. This is particularly so given that the same parties negotiate on a regular basis and are frequently before the Commission. Disclosure of internal views and information which are none of the business of the other side, should not be available to the other side and may lead to those things not being recorded for fear that they may be subject to discovery. The Principles of Discovery 18 The principles of discovery are set out in Sankey and Whitlam and Others [1978] 142 CLR 37. Both parties agreed that the decision of the Federal Court of Australia in Spencer v Commonwealth of Australia [2012] FCAFC 169 encapsulates the principles as they have developed. Those principles are that Cabinet papers, which include papers brought into existence for the purpose of preparing a submission to Cabinet, are immune from discovery but that immunity is not necessarily absolute. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1341 However, they belong to a class of documents which ought not be examined by the court except, perhaps, in very special circumstances. As noted by Gibbs ACJ in Sankey and Whitlam (at 43): If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. 19 It is, therefore, part of the balancing process of deciding whether there is detriment to the public interest involved in the disclosure and whether that is outweighed by the public interest in the advancement of justice. 20 I note that in regard to the disclosure of documents developed by parties to matters in this jurisdiction, the Full Bench in ALHMWU and The Western Australian Hotels and Hospitality Association Incorporation and Others (1995) 75 WAIG 1801 at 1808 the Full Bench said: We would hold that documents which would normally be the subject of legal privilege or litigation where practitioners are concerned would be, as a matter of equity, good conscience and the substantial merits of the case, barred from discovery or production to the other side in any proceedings. Otherwise the result would be unconscionable and in contravention of the requirement that the Commission act according to equity and good conscience (see the Full Commission of the Industrial Commission of South Australia in Taranto (1980) Pty Ltd t/a Esquire Motor Inn v. Wood 29 AILR paragraph 307 where the Commission held:- ‘The rules relating to privilege were equally applicable before the Industrial Tribunal where the parties were represented by either legal practitioners or by lay advocates. Were that not so, a party represented by counsel could claim privilege for its instructions to counsel, and yet claim to be permitted to require the other parties represented by a lay advocate to produce for inspection all its instructions to the advocate and, where thought to be of use, to call for the production of the documents and tender them as evidence against the other party, or, if they were not produced, to prove their contents by some other method.’ We would apply that dictum, except that we would say that the rules relating privilege should be applied by virtue of s. (26)(1)(a) of the Act. We do not think that we can hold that privilege can exist, as a matter of law, except between a legal practitioner and his/her client. However, it is obvious that Ms Blaskett’s written submissions or notes thereof, ‘briefs’, witness proofs, etc, could not be required to be disclosed on the basis of what we have just held (see, too Club Managers Association v. Cabra Vale and District Ex-Active Servicemen’s Club 22 AILR paragraph 436 (Industrial Commission of NSW) per Liddy J). Consideration and conclusions 21 The Commission has the jurisdiction to order the production of documents (s 27(1)(o) of the Industrial Relations Act 1979 (the Act)). 22 The principle objects of the Act include: (ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; and (b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes; (s 6 – Objects of Act) 23 Section 32 – Conciliation and arbitration of industrial matters - requires the Commission to endeavour to resolve matters in dispute by conciliation unless it is satisfied that resolution of the matter would not be assisted by doing so. Section 44 provides for the Commission to convene conferences and summons parties for the purpose of conciliation and requires that ‘[i]n endeavouring to resolve any matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to a conference under this section to reach an agreement on terms for the resolution of the matter.’ 24 Therefore, it is clear that the Commission is to focus on the parties reaching agreement as a priority. In considering whether it is in their interests to reach agreement, parties will consider the strengths and weaknesses of their own and the other side’s cases. Particularly in the government sector this is usually set out in writing. It is appropriate that the Commission encourage parties to develop their considerations of the resolution of disputes by a thorough examination of all aspects of the matter and by frank assessments of their strategies including in internal documents. 25 Given that the parties to the awards regularly negotiate, it would be contrary to the interests of the parties and to the public interest generally, for them to be discouraged from a thorough analysis and frank expression of views within their internal documents for fear that those documents may be disclosed to the other side as part of a subsequent litigation. In those circumstances, the views of the Full Bench in ALHMWU v The Western Australian Hotels and Hospitality Association Incorporated and others are most apposite. Therefore, internal documents prepared by the parties as part of their considerations for the resolution of this claim which led to the parties entering into the MOU, should not be disclosed to the other side in respect of arbitration of any matter arising from that dispute. It would be entirely contrary to the objects of the Act to do so. As Mr Matthews for the respondents says, they ought to be treated as analogous to legal professional privilege. All of the documents contained within the list relate to the respondents’ internal considerations of the resolution of the two applications, whether they are internal documents within the departments and agencies, documents between those agencies or documents prepared for consideration by a subcommittee of Cabinet. 26 The administration of justice, but more particularly, the settlement of industrial disputes and thereby the public interest, would be impaired by the disclosure of documents which have been prepared as part of the process which lead to the settlement of a substantive part of the dispute between the parties. 27 A class of the documents sought to be discovered relates to the deliberations of a subcommittee of Cabinet and that subcommittee and the particular Cabinet no longer exist. It is the purpose for which the documents were produced for consideration by a Cabinet subcommittee which is of significance and attracts privilege. The fact that the contents of the 1342 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. documents may now be said to support one party or the other’s case in a matter relating to the controversy between the parties of whether or not the awards ought to now be amended, is a factor going to whether or not the matters are still current and controversial. In this case, there is dispute between the parties as to whether the respondents accepted the work value claims of the various specified callings put forward by the applicant. That is, the documents may disclose the basis on which the respondents entered into the MOU, which is now part of the dispute. Therefore, while the MOU settled the claims, the issue has arisen as to whether the awards should be amended. The issues which went before the Cabinet subcommittee are, therefore, still current and controversial. This also supports the refusal to order discovery of the documents. 28 In all of the circumstances, the respondents should not be required to discover the documents set out in attachment HMD1 to Ms Dooley’s affidavit as part of the consideration of whether there exists any impediment to the awards being amended. This also means that the documents are not able to be used by the respondents in the matter and, therefore, cannot be evidence to support the respondents’ case. 2013 WAIRC 00584 PUBLIC SERVICE AWARD 1992 GOVERNMENT OFFICERS' SALARIES ALLOWANCES AND CONDITIONS AWARD 1989 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT -v- DEPARTMENT OF COMMERCE AND OTHERS RESPONDENTS CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 7 AUGUST 2013 FILE NO P 6 OF 2006, P 7 OF 2006 CITATION NO. 2013 WAIRC 00584 Result Application for discovery dismissed Order HAVING heard Ms K Hagan and with her Ms S Van Der Merwe on behalf of the applicant and Mr D Matthews of counsel and with him Ms H Dooley for the respondents, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the application for discovery be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. 2013 WAIRC 00434 DISPUTE RE VOLUNTARY REDUNDANCY WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS) APPLICANT -v- MINISTER FOR HEALTH RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 23 JULY 2013 FILE NO PSAC 18 OF 2013 CITATION NO. 2013 WAIRC 00434 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1343 Result Interim order amended Order WHEREAS this is an application made pursuant to Section 44 of the Industrial Relations Act 1979; and WHEREAS at a conference convened on Tuesday 25 June 2013, the Public Service Arbitrator (the Arbitrator) issued interim orders in this matter, and these included that either party may apply to amend or rescind the orders; and WHEREAS on 22 July 2013 the respondent sought the amendment to the orders and the applicant advised that it does not object to the orders being amended; and WHEREAS having considered the circumstances as advised by the parties and the proposed amendments to the orders, the Arbitrator is of the opinion that the amendments are appropriate; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders that the order issued on Tuesday 25 June 2013 (2013 WAIRC 00374) be varied and that the following orders are to apply: 1. THAT the respondent grant to Mr Benjamin Dent: (a) leave without pay for eight weeks commencing on and from the date GDA commences delivery of medical imaging technology services to Busselton Hospital; and (b) authorisation to undertake external employment with GDA until 2 August 2013. 2. THAT the Union has leave to apply to extend the period of leave without pay should the matter not be resolved. 3. THAT either party have leave to apply to further amend or rescind these orders upon giving 24 hours’ notice to the other party and to the Arbitrator. 4. THAT the parties are to report back to the Arbitrator in a conference at a date to be fixed, for the purposes of further conciliation. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. 2013 WAIRC 00428 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION