1 Fair Work Act 2009 s.590(2)(a) – Application for an order requiring a person to attend before the FWC s.590(2)(c) - Application for an order requiring a person to produce documents, records or other information Retail and Fast Food Workers Union Incorporated T/A Retail and Fast Food Workers Union Incorporated (B2024/78) COMMISSIONER LIM PERTH, 29 FEBRUARY 2024 Application for an order requiring a person to attend before the FWC – application for an order requiring a person to produce documents, records or other information – orders not made. 1. Background [1] The parties to this matter are currently in negotiations for the proposed Woolworths Supermarkets Agreement 2023 (Agreement). The parties are: • The Retail and Fast Food Workers Union Incorporated (RAFFWU), the applicant for this matter; • Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (Woolworths), the respondent for this matter; • Mr Anthony Hicks, an independent bargaining representative and applicant in matter B2023/1343; • The Shop, Distributive and Allied Employees’ Association (SDA); • The Australian Workers’ Union (AWU); and • The Australasian Meat Industry Employees’ Union (AMIEU). [2] On 1 February 2024, RAFFWU applied to the Commission for bargaining orders pursuant to s 229 of the Fair Work Act 2009 (Act) (RAFFWU Bargaining Order Application). The matter has been set down for hearing on 19 March 2024. I will be hearing the RAFFWU Bargaining Order Application concurrently with matter B2023/1343, which is Mr Hicks’s s 229 application arising from the same negotiations. [2024] FWC 511 DECISION [2024] FWC 511 2 2. Applications pursuant to section 590 [3] On 15 February 2024, RAFFWU applied for the following orders under subsections 590(2)(a) and (c) of the Act: Orders requiring Ms Jannifer Kerr of Woolworths and Mr Matthew Galbraith of the SDA to attend the hearing for matter B2024/78 on 19 March 2024 (Attendance Orders). An order for the Respondent to produce (Production Order): (1) All documents or records which identify any material received or shared by the Respondent with the SDA relating to bargaining for the Woolworths Agreement including: (a) Any claim, clause, draft agreement or explanatory document; (b) Any document or record which claims or explains how any other document is confidential; (c) Any document or record which describes or discusses the inclusion or exclusion from any meeting held or to be held between Woolworths and the SDA and/or AWU of any other bargaining representative. (2) All documents or records held by the Respondent relating to bargaining for the Woolworths Agreement that are: (a) Any document or record which claims or explains how any document or information shared by the SDA with Woolworths is confidential; (b) Any document or record which describes or discusses the inclusion or exclusion from any meeting held or to be held between Woolworths and the SDA and/or AWU of any other bargaining representative; (c) Any document or record which includes a timeline for the negotiation of the Agreement. [4] In responsive submissions, RAFFWU confirmed that it no longer presses for the production of any document or record which includes a timeline for the negotiation of the Agreement (Production Order, (2)(c)). [5] Woolworths and the SDA oppose the granting of the Attendance Orders and the Production Order. [6] The parties did not object to the applications for the Attendance Orders and Production Order being determined on the papers. 3. Submissions [2024] FWC 511 3 3.1 RAFFWU [7] RAFFWU makes the following submissions in support of its application for the Attendance Orders: (a) Ms Kerr is the lead negotiator for Woolworths. Mr Galbraith is the lead negotiator for the SDA. Their evidence will: (i) identify the extent to which a scheme or plan was devised or implemented by Woolworths with the SDA to exclude RAFFWU or other bargaining representatives from bargaining; (ii) go to the allegation that any document provided by the SDA in bargaining is allegedly confidential; (iii) identify the extent to which any scheme or plan to exclude RAFFWU from bargaining replicated earlier schemes or plans; (iv) identify how the practice of bargaining to the exclusion of other bargaining representatives has benefited Woolworths and/or the SDA in the past; (v) identify how the practice of bargaining that has involved unfair conduct which undermines freedom of association or collective bargaining has benefited Woolworths and/or the SDA in the past. (b) The evidence of Ms Kerr and Mr Galbraith will go to the allegation that any document provided by the SDA in bargaining is allegedly confidential. (c) The evidence of Ms Kerr will identify the extent to which a scheme or plan was devised or implemented by Woolworths to exclude RAFFWU or other bargaining representatives from bargaining. (d) This evidence of Mr Galbraith will identify the extent to which a scheme or plan was devised or implemented by the SDA to exclude RAFFWU or other bargaining representatives from bargaining. [8] RAFFWU further submits the following in support of its application for the Production Order: (a) The documents or records are relevant as a matter in contest includes the exclusion of RAFFWU from bargaining meetings; Woolworths’ failure to provide relevant information to RAFFWU in a timely manner; giving consideration to proposals; refraining from capricious or unfair conduct and bargaining with RAFFWU. (b) The documents or records may identify: [2024] FWC 511 4 (i) the extent to which a scheme or plan was devised or implemented by Woolworths with the SDA and/or AWU to exclude RAFFWU or other bargaining representatives from effective bargaining; (ii) the nature and content of documents not provided by Woolworths to RAFFWU which are relevant to bargaining and shared with the SDA and/or AWU; (iii) any timeline pursued by Woolworths to negotiate an agreement; (iv) how Woolworths formed a view that any document provided by the SDA and/or AWU in bargaining for the Agreement could be confidential contemporaneous to the decision to not provide such documents to RAFFWU. [9] RAFFWU submits that the Production Order and Attendance Orders will inform the Commission as to the actual facts and circumstances of bargaining. This will assist the Commission identify whether Woolworths has met, or is meeting, the good faith bargaining requirements. 3.2 Woolworths [10] Woolworths submits the following in opposing the applications for the Attendance Order for Ms Kerr and the Production Order: (a) Production of explanatory material, claims, clauses or similar: RAFFWU is essentially seeking the final relief in the RAFFWU Bargaining Order Application, but by bypassing the jurisdictional preconditions that must be met before such orders are made. This is an abuse of process. (b) Production of documents which claim or explain how any other document is confidential: Woolworths relies on the Full Bench ruling in Endeavour Coal Pty Ltd v APESMA.1 The Full Bench found in the context of a bargaining order application, when ordering the disclosure of information that is not “confidential or commercially sensitive”, the Commission must make decisions of fact as to what is confidential or commercially sensitive. Woolworths submits that the Commission should not exercise its discretion to make orders for the production of these documents (if they exist), on the basis that they are not relevant to any fact in issue in the proceedings and the orders sought are a “fishing expedition” and abuse of process. (c) Production of documents which describes or discusses the exclusion of bargaining reps: There is no dispute that meetings have occurred between Woolworths and the SDA and AWU separately to bargaining meetings conducted with RAFFWU. RAFFWU asserts that the documents may identify the extent to which a scheme or plan was devised by Woolworths with the SDA and/or AWU to exclude RAFFWU from effective bargaining. RAFFWU’s substantive application does not make this allegation. These documents therefore do not relate to any issue in dispute between the parties. The orders sought constitute a “fishing expedition” and abuse of process. [2024] FWC 511 5 (d) Order for Ms Jannifer Kerr to attend the Commission: Ms Kerr is the Head of Industrial Relations and Chapter Lead for Woolworths. Woolworths reject RAFFWU’s reasons in support of ordering Ms Kerr’s attendance. Woolworths also submit that it is a matter for them as to what evidence they choose to bring in response to RAFFWU’s claims. Woolworths may choose to file and serve a statement from Ms Kerr in accordance with the Commission’s directions in this matter. The application for an order for Ms Kerr’s attendance is therefore premature. 3.3 The SDA [11] The SDA submits the following in opposing an order for Mr Galbraith to attend and provide evidence: (a) RAFFWU’s application for an order compelling Mr Galbraith to attend the Commission is based on the ground that his evidence will identify the extent to which a scheme or plan was devised or implemented by Woolworths with the SDA to exclude RAFFWU or other bargaining representatives from the bargaining. (b) There is no such scheme or plan. The application for a summons is a blatant fishing expedition to try and discover one. (c) The attempt to summons other bargaining representatives raises a real prospect of an attempt to lead evidence concerning the internal bargaining strategies of bargaining parties. This would not be permitted in the ordinary course. (d) It is highly unusual for a party to seek attendance of an officer of an opposing party at hearing. It is likely that such examination would be unproductive and time-consuming, as it would need to be done by non-leading questions in circumstances where the questioner has no knowledge of what they are asking about, merely suspicion. (e) An order for Mr Galbraith to attend should not be granted as there is no apparent basis for it; the evidence sought to be produced would not add anything to the case RAFFWU is trying to mount; and it would result in a waste of time and resources. 4. Relevant principles [12] Section 590 of the Act provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate. It confers a broad discretionary power on the Commission to inform itself by means including (but not limited to) the methods outlined in subsection 590(2). [13] In considering whether to exercise its discretion, the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.2 These include: (a) A party must establish grounds for a belief that a document or class of document exists, and that such a document or class of documents may be, or have been, in the custody or power of the person required to produce.3 [2024] FWC 511 6 (b) The documents sought must be identified with sufficient particularity.4 (c) The documents sought must have apparent potential relevance to the issues in the proceedings.5 (d) The documents sought must be used to support the requesting party’s existing case.6 (e) An order to produce cannot be used for the purpose of a ‘fishing expedition’; that is, used for the purpose of exploring if there is a viable case that might be advanced.7 (f) The extent to which the burden placed on a person required to comply with the order is reasonable.8 (g) The proper administration of justice in the sense that material that is relevant to an issue or issues for determination is available to parties to enable the parties to advance their respective cases.9 (h) Whether the documents are being sought for a collateral or improper purpose.10 (i) Whether questions of legal professional privilege or confidentiality arise.11 (j) Whether compliance with an order to produce would reveal internal deliberations as to industrial strategy or policy.12 5. Consideration [14] Whether orders should be made under section 590 in the terms sought by RAFFWU requires an application of relevant legal principles in the context of issues which may arise in the proceedings. This is, by necessity, informed by the RAFFWU Bargaining Order Application. [15] The RAFFWU Bargaining Order Application seeks the following order: An order that Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (together known as “Woolworths”): 1. invite RAFFWU to all bargaining meetings for the agreement and schedule meetings so as to include RAFFWU in any such meetings; 2. share with RAFFWU all substantive documents related to bargaining held by Woolworths including all: (i) claims, (ii) proposed drafts of any clauses or agreements, or (iii) explanatory documents (which explain a claim or position being discussed in bargaining), shared with or from any other bargaining representative; [2024] FWC 511 7 3. until such time as an agreement is made, share with RAFFWU all future substantive documents related to bargaining received or issued by Woolworths including all claims, all proposed drafts of any clauses or agreements and all explanatory documents (which explain a claim or position being discussed in bargaining) shared with or from any other bargaining representative, within 1 working day of those documents being received or issued by Woolworths to or from any bargaining representative; and 4. refrain from putting any draft or final agreement to employees for consideration until no less than 21 days have passed since the draft or final agreement was provided to RAFFWU. [16] RAFFWU seeks the order on the basis Woolworths have not complied with ss 228(b), (d), (e) and (f) of the Act, which are: (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner; (d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals; (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; (f) recognising and bargaining with the other bargaining representatives for the agreement. [17] With regards to the production of claims, clauses, draft agreements or explanatory documents (Production Order, 1(a)), it mirrors the outcome sought in item two in the RAFFWU Bargaining Order. It is not appropriate to order what is effectively the final relief in a contested substantive application in an interlocutory proceeding. I also do not accept RAFFWU’s submission that these documents will inform the Commission as to whether relevant information was provided in a timely manner. RAFFWU is already able to prove as a matter of fact what information Woolworths has provided to them during negotiations, and at what time they were provided. RAFFWU will be able to make submissions on whether this is in breach of s 228(1)(b). [18] Regarding documents or records that speak to the inclusion or exclusion of bargaining representatives from meetings (Production Order, 1(c), 2(b)), RAFFWU submits in the substantive matter it is the practice of Woolworths and the SDA to exclude RAFFWU in negotiating agreements. Woolworths does not contest that separate meetings have been conducted with bargaining representatives. The question for determination at hearing is whether this is in breach of the good faith bargaining requirements. [19] RAFFWU’s application asserts that these documents “may identify the extent to which a scheme or plan was devised” between Woolworths and the SDA (and/or the AWU). I am not [2024] FWC 511 8 satisfied that RAFFWU’s application for the Production Order has established that there is a scheme or plan, or that such documents in fact exist. [20] With regards to documents that claim or explain how any document is confidential (Production Order, 1(b) and 2(a)), I note that Woolworths’ materials in the substantive matter are not due until 5 March 2024. If Woolworths do run the argument that there are materials that are confidential, it is appropriate that they have the chance to do so through their evidence and submissions first. [21] I am not satisfied that an order should be made requiring Mr Galbraith to attend the Commission and give evidence. RAFFWU submits that Mr Galbraith will be able to give evidence regarding its conduct and communications with Woolworths. It must be noted that RAFFWU’s substantive application is against Woolworths, not the SDA. Regardless of whether Woolworths does end up claiming reliance on agreements or communications with other bargaining parties, it is Woolworths’ actions (or non-action) that must be assessed against the criteria in the Act. [22] I am satisfied that Ms Kerr’s evidence has high probative value in the substantive matter. However, I agree with Woolworths that the application for an order for her attendance is premature given that Woolworths have not yet tendered their evidence. For that reason, I do not grant the order requiring her attendance at the hearing. However, this may be revisited after Woolworths provides its materials on 5 March 2024. [23] For the above reasons, I decline to exercise my discretion under s 590 to grant the orders sought by RAFFWU. COMMISSIONER Hearing on the papers. Printed by authority of the Commonwealth Government Printer <PR771833> [2024] FWC 511 9 1 [2012] FWAFB 1891, [64]. 2 Esso Australia Pty Ltd v Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) [2017] FWCFB 2200 (Esso); Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847, [23]. 3 McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [36]. 4 Ibid, [35]. 5 Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460, [19]. 6 McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [35]. 7 Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995, [19]. 8 Esso, [6]. 9 Ibid. 10 D.A. v Baptist Care SA [2019] FWC 7358, [36] – [38]. 11 Ibid. 12 Ibid.