Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWC 912 (16 February 2017) Last Updated: 2 June 2017 [2017] FWC 912 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.512 - Application for a right of entry permit Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (RE2016/154) DEPUTY PRESIDENT LAWRENCE SYDNEY, 16 FEBRUARY 2017 Right of entry - James Craig Metcher – production of documents – confidentiality orders. Background [1] On 13 January 2017 I issued a decision dealing with four orders to produce documents in this matter sought by the Australian Government Solicitor (AGS) on behalf of the Honourable Michaela Cash, the Minister for Employment (the Minister) [2017] FWC 262 . [2] The orders were issued on the same day and were returnable on Monday 30 January 2017. [3] The Orders were served on the following: Commissioner of Police, New South Wales Police Force; Australia Postal Corporation (Australia Post); Mr Metcher; Proper Officer of the Divisional Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). [4] The substantive hearing of the matter is on 14 and 15 March 2017. [5] The 13 January decision set out the background to this matter and I will not repeat it. Compliance with the Orders to Produce [6] There was considerable delay in the production of the documents by the New South Wales Police. They were finally lodged in the Commission on 13 February 2017 and then inspected by both parties. [7] Australia Post lodged the documents requested in the Commission on 31 January 2017 but they foreshadowed that the name of the employee who made a complaint be redacted and that the report and transcript of interview not be produced to the parties on the ground of legal privilege. They further requested that access be restricted to the parties’ legal representatives. I advised the parties of this on 30 January and sought their views. There was no unity of view. [8] Mr Metcher and the CEPU lodged the documents requested on 30 January 2017. Both lodged sealed envelopes containing certain documents in relation to which they foreshadowed applications pursuant to s.594(1) on the basis of their confidential nature and/or legal privilege. An index of those documents was made available to the AGS. Representatives of the AGS attended the Commission to inspect the available documents on 1 February. [9] Because of the lack of agreement between the parties I listed a telephone conference for 6 February to discuss the confidentiality orders. [10] On 2 February I sent a memo to the parties. I summarised the parties’ position as follows: “ The Metcher /CEPU Orders With respect to the material that has been made available to the AGS, Mr Punch seeks agreement that access be restricted to legal representatives and instructing officers. Presumably, the intention is to ensure that this material does not appear in the public domain prior to the hearing. With respect to the material that has not been accessed, Mr Punch seeks that they not be made available. A list has been made available to the AGS for comment. The Australia Post Orders Copies of the redacted complaint and related correspondence have been provided to the Commission. Australia Post seeks that access be restricted to legal representatives. Australia Post further seeks that a Confidential Investigation Report and a Transcript of Interview not be provided to the parties on the ground of privilege. The AGS responds that access should be provided to legal representatives and instructing officers/clients. It would consent to an order preventing publication. It objects to the privilege claim. Mr Punch opposes redaction of names, does not object to the privilege claim and says that access should be provided to legal representatives and instructing officers/clients. NSW Police Orders I anticipate that both Mr Punch and the AGS may make confidentiality applications once this material is viewed. Mr Punch is to inspect first, consistent with my decision. It is likely that this material will not be available until next week.” [11] I set out the following preliminary conclusion as to the confidentiality orders: “(1) A general order should be issued that none of the material produced should be published or put into the public domain prior to the hearing. (2) The content of the transcript of the open hearing and the decision of the Commission should be addressed by the parties prior to/at the hearing. (3) Generally, where access is granted it should be to legal representatives and instructing officers (this would include the Minister and Mr Metcher). (4) Metcher/CEPU Orders I await the AGS’s comment on the list of restricted material. (5) Australia Post Orders I have given cursory consideration to the material lodged. My preliminary view is: (a) The redacted complaint and correspondence should be provided as in (3) above. (b) The Report should be provided. (c) The Transcript refers to many people and issues which are not relevant to this application and should not be provided on the ground of relevancy. (6) NSW Police Orders Generally the material should be provided as per (3) above, subject to specific application.” [12] A copy of the memo was also sent to Allens Linklaters (Allens), solicitors for Australia Post for their information. [13] Both parties provided written responses to my preliminary conclusion prior to the telephone conference, as did Allens on behalf of Australia Post. [14] Mr Jim Pearce of counsel and Peter Punch represented the CEPU and Mr Metcher at the telephone conference. Robyn Sweet of counsel and Jenny Davenport appeared for the AGS. [15] There was a level of consensus with respect to items 1 to 3 of my preliminary proposal. The parties made further written submissions in relation to the treatment of the Metcher/CEPU documents on 7 February. [16] On 10 February 2017, Allens, on behalf of Australia Post, lodged with the Commission a confidential submission in support of its privilege claim. It was supported by a statement of Nicholas Macdonald, General Counsel and General Manager Assurance and a draft outline of anticipated evidence of Ahmed Fahour, Australia Post’s Chief Executive Officer. Open versions of these documents were served on the parties. This material focussed on the confidential report prepared for Australia Post. My view about the irrelevancy of the transcript was accepted by the parties on the telephone hook-up and therefore it is not to be produced. [17] Australia Post submits that the confidential investigation report and advice prepared for them by Henry Davis York is covered by legal professional privilege because it was prepared for the purpose of legal advice and for use in future litigation. It is pointed out that it is the purpose for which the document is created, rather than its contents, which attracts the privilege. The submission sets out the circumstances of the preparation of the report which is said to be an investigation report to be used for legal advice. It is a report into allegations made by an Australia Post employee. It is argued that the concept of legal advice goes beyond narrow advice as to the law, but extends to practical advice as to the appropriate action to be taken and an investigation into a factual situation preparatory to legal advice. [18] The AGS responded to the Australia Post submissions on 13 February. It maintains its opposition to the privilege claim. It submits that the report, which deals with a workplace issue, clearly may be relevant to the substantive matter to be determined by the Commission. Australia Post has not discharged the onus for establishing its claim, it is submitted. [19] The AGS notes that the consideration of a privilege claim involves a balancing of the claim and the search for the truth (see: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1). It is essential that a Court can conclude on an objective analysis that litigation can be reasonably anticipated (see: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674). The dominant purpose for which a document is created must be determined objectively having regard to all the circumstance (see: Pratt Holdings Pty Ltd v Commissioner of Taxation (2005) 225 ALP 266). [20] The AGS submits that the report was prepared to investigate and establish the facts and to provide legal advice to Australia Post. It is submitted that the first was the primary reason for the preparation of the report which would have been prepared irrespective of any desire for legal advice. It is therefore submitted that Australia Post has not established its privilege claim on the balance of probabilities. There is no objective evidence that supports a view that there was a reasonable probability or likelihood of legal proceedings arising from the employee complaint. [21] The AGS raises the possibility of severing or redacting, parts of the report prepared for legal advice. Given that the AGS has not seen the report, it could not make a specific proposal in this regard. [22] Australia Post lodged a submission in reply on 14 February. It submits that, as the report was provided to Australia Post on 25 July 2016, after my decision of 9 May 2016, it is not relevant to the proceeding. The purpose of the report was to obtain legal advice in circumstances where litigation was contemplated by Australia Post. Attached is a statement by Mr Fahour to the effect, inter alia, that he asked the report to be prepared “for the purpose of obtaining legal advice”. [23] The AGS replied on 15 February. It pointed out that the alleged incident occurred prior to my decision and therefore Australia Post’s “lack of relevance” argument should not be accepted. It was also submitted that Australia Post had not denied that the factual inquiry would have proceeded anyway irrespective of a desire for legal advice. [24] On 14 February 2017, Mr Punch lodged submissions in respect of proposed confidentiality orders with respect to the New South Wales Police material. Most issues appear to be covered by the general confidentiality orders that I propose to make. There are some documents, however, which are said to be personally sensitive and/or intrusive of the privacy of the members of Mr Metcher’s family which it is submitted, should not be disclosed. [25] The AGS response, on 15 February, was that the general orders proposed would adequately protect the interest of the parties. Consideration [26] It can be seen from the account of consultations and submissions given above that the parties and Australia Post have had ample opportunity to make submissions as to the utilisation of the material produced as a result of the orders to produce. [27] In my 13 January decision, I noted that the Commission has a broad and general power to order the production of documents pursuant to s.590(2)(c) of the Act, provided that the material is relevant and necessary for the determination of the matter before the Commission. [28] The Commission’s task in a right of entry matter is to make a broad inquiry of the applicant union and official, including whether all relevant matters have been disclosed. It is important to remember, however, that the s.512 matters are to be considered to determine whether an applicant is a “fit and proper person” to hold a right of entry permit, not a “fit and proper person” in a general sense. [29] Vice President Hatcher, in re: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2015) FWC 1522 summarised the approach of the Commission in the following passage which has been adopted in subsequent decisions of the Commission: “[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia , CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU , Construction, Forestry, Mining and Energy Union , Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate . The relevant principles may be summarised as follows: A “ fit and proper ” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required. The expression “ fit and proper person ” in s.512 , read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation. The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight. The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought. While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1). Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.” [30] It is obvious that some of the material produced as a result of the orders and aspects of the submissions and evidence, in this matter, are likely to touch on personal and family issues. The parties agreed that confidentiality orders should be made and that consideration be given to how the hearing is to be conducted and the content of the transcript and subsequent decision. [31] Both parties agreed that: A general order should be issued that none of the material produced should be published or put into the public domain prior to the hearing. The nature of the hearing, the content of the transcript and subsequent decision should be addressed by the parties prior to the hearing. I intend to include a direction in respect of these matters as part of the orders issued accompanying this decision. The AGS consented to an order that the documents produced be only utilised for this proceeding consistent with the principles set out by the High Court in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125. I have included the AGS’s reformulation of this undertaking in the orders. [32] There was a dispute about whether the instructors/clients on each side could have access to the documents produced. I can see no justification for treating Mr Metcher and the CEPU and the Minister and her staff differently. It is appropriate for the client to have access to the material for the purpose of providing instructions. Each side will have relevant staff that might have a legitimate role in preparing this case. Accordingly, the order will restrict access to legal representatives, instructing officers and staff, including, for clarity, the Minister and Mr Metcher. [33] Mr Punch sought to deny access to the AGS to those documents lodged with the Commission on 30 January 2017 by Mr Metcher and the CEPU but contained in the “restricted” envelope. These have not yet been inspected by the AGS. The AGS submits that they should be examined on the basis of the general orders. There are three items, as per the AGS email of 7 February which are to be redacted. I will not mention the details but this can be attended to prior to the inspection. I accept the AGS position and will facilitate inspection of this material as soon as practical. [34] I am satisfied that there is nothing in the material produced by the New South Wales Police which means it should be treated any differently. Consequently, this material will be dealt with in accordance with the general orders. [35] As can be seen from the summary above, there is a contest between the AGS and Australia Post as to the production of the Australia Post documentation. Ultimately, the production of the confidential report is the unresolved issue. [36] The complaint by an Australia post employee and associated correspondence is produced in a redacted form and is available for inspection as soon as practicable. I came to the conclusion that the transcript of interview did not have to be produced on the ground of relevance and this was accepted by the parties. [37] I have now considered the Australia Post report, provided to the Commission on 31 January on a confidential basis, carefully, which I had deliberately not done prior to the preparation of my memo of 2 February. I have also considered the competing submissions of Australia Post and the AGS on the question of privilege. Solicitors for Mr Metcher/CEPU have had little to say on this issue. I have also considered the evidence filed from Executives of Australia Post which goes to the process whereby the report was prepared. [38] On balance, I am not satisfied that the report, as a whole, is covered by legal professional privilege. I consider it most likely that the report was authorised to be prepared by Australia Post senior management because it was thought appropriate to get an external expert to report on what had occurred in relation to a problem/problems in the workplace. It is not apparent that litigation could have been reasonably anticipated or was likely arising from the issues dealt with in the report. Nevertheless the report does contain recommendations about Australia Post’s options which can be variously described as legal, policy and industrial. In my view, these are protected by privilege and should be deleted from the version of the report inspected by the parties. [39] The balance of the report, to the extent that it relates to Mr Metcher’s conduct in relation to workplace issues and his relationship with the major employer with which he deals, is arguably relevant to the substantial issues before the Commission. [40] The report does contain many names which are not relevant to these proceedings and these should be redacted. The exceptions are Mr Metcher and the senior Australia Post Executives, Mr Fahour and Ms Walsh. Deletion of these names would make the report incomprehensible. In any event, they have already been named in the proceedings. [41] The Commission’s task is to balance the interests of justice and the need to consider material which is relevant to the task at hand, with legitimate legal professional privilege claims. I have decided that the report will be available on a redacted basis with paragraphs 3, 4, 5, 6, 7 and 8 and the Annexures deleted. Conclusion [42] Orders for confidentiality consistent with my conclusions above follow. There are also some orders with respect to outstanding procedural issues that need to be dealt with prior to the hearing. Obviously, the parties can apply to the Commission with respect to any other matters prior to the 14/15 March hearing. DEPUTY PRESIDENT Appearances : J. Pearce of counsel with P. Punch , solicitor for the CEPU; R. Sweet of counsel with J. Davenport , solicitor for AGS. Hearing details: 2017 Sydney: February 6 (Telephone conference). Final written submissions: 2017 CEPU: February 14; AGS: February 13, 15; Australia Post: February 10, 14. Printed by authority of the Commonwealth Government Printer <Price code A, PR590235>