FEDERAL COURT OF AUSTRALIA

AWU v Johnson Matthey (Australia) Ltd [1999] FCA 1742

INDUSTRIAL LAW – subpoena for production of particular records of the applicant – whether documents sought too broad and therefore oppressive – whether documents sought relevant

Workplace Relations Act 1996 (Cth) Parts VIB, XA

Construction, Forestry, Mining and Energy Union v Hamberger (Employment Advocate) [1999] FCA 1301, referred to

AUSTRALIAN WORKERS UNION v JOHNSON MATTHEY (AUSTRALIA) LTD ACN 004 146 838

V425 OF 1999

MARSHALL J

MELBOURNE

1 DECEMBER 1999

THE COURT ORDERS THAT:

The application to set aside the subpoena for production in part be dismissed, save that the documents be confined to those which came into existence on or prior to 14 July 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The substantive application before the Court is one which alleges a breach of the provisions of Part VIB and Part XA of the Workplace Relations Act 1996 (Cth) (“the Act”).  A central issue in dispute in the proceeding is the union membership status of certain employees of the respondent company.

2                     The company subpoenaed certain records relating to the membership of the applicant, the Australian Workers’ Union (“the Union”).  The Union sought to set aside the subpoena in part.  First it alleged that in so far as the subpoena sought documents in respect of all members of the Union and not merely in respect of certain named individuals the subpoena was too broad.  Secondly, in so far as the subpoena sought the production of the documents associated with the payment and receipt of contributions, the subpoena should be set aside on the grounds of relevance.

3                     The Court rejects both grounds of objection.  The question of who is or is not, or who was or was not at any material time, a member of the Union is an important issue which may require resolution in the proceeding.  Whether or not certain industrial action was “protected” having regard to the provisions of Part VIB of the Act is a live issue which requires determination in the proceeding.

4                     A proper consideration of r 8 of the Union’s rules shows that a person may become a member of the Union by the mere payment of a contribution which may or may not be at the rate determined by the rules.  Therefore it cannot be said that documents associated with the payment and receipt of contributions are irrelevant to the issue of union membership. 

5                     I accept the submissions of the company that the production of the documents sought by the subpoena would not be oppressive to the Union.  The Union has nearly two months to arrange to produce the relevant documents to the Court.  The documents are described in the subpoena with reasonable specificity.  The interests of justice in the attainment of a fair trial based on all relevant material dictate that the documents should be produced to the Court.  See, for example, Construction, Forestry, Mining and Energy Union v Hamberger (Employment Advocate) [1999] FCA 1301.

6                     The documents sought should be confined to those that existed as at the date of the meeting at which a vote was taken to engage in the second strike.  That is because it appears to be the last date referred to in the amended application upon which membership of the Union is relevant to the issue of whether a breach of the Act occurred as at the date of the institution of the proceeding.

7                     The Court orders that the application to set aside the subpoena for production in part be dismissed, save that the documents be confined to those which came into existence on or prior to 14 July 1999.

Associate:

Dated:              20 December 1999