FEDERAL COURT OF AUSTRALIA

Donnelly v O’Donnell [2005] FCA 1412

INDUSTRIAL LAW – application for declaratory and injunctive relief – notice for production of documents purportedly issued under s 86(1A) of the Workplace Relations Act 1996 (Cth) – whether notice valid – whether notice issued for valid purpose – whether purposes identified are relevant to ascertain whether requirements of the Act have been observed – whether width of the documents sought bears on validity of notice

Workplace Relations Act 1996 (Cth) ss 86, 127

Acts Interpretation Act 1901 (Cth) s 46

Trade Practices Act 1974 s 155

Thorson v Pine (2004) 139 FCR 527, referred to

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41, applied

Laing v Carroll [2005] FCAFC 202, referred to

Melbourne Home of Ford Pty Ltd and Others v Trade Practices Commission and Another (1980) 31 ALR 519, cited

Metropolitan Fire and Emergency Services Board v United Firefighters Union of Australia [2005] FCA 1231, referred to

CHARLES DONNELLY v ERIN O’DONNELL

VID 986 OF 2005

MARSHALL J

4 OCTOBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

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

REASONS FOR JUDGMENT

1                     Ms Erin O’Donnell is an inspector who works for the Commonwealth in its Department of Employment and Workplace Relations.  She issued and served a notice on Mr Charles Donnelly to produce documents.  Mr Donnelly is the National Secretary of the National Union of Workers.  Mr Donnelly resists the production of the documents sought in the notice.  He says the notice is invalid.  Ms O’Donnell claims that the notice is valid and authorised by s 86(1A)(c) of the Workplace Relations Act 1996 (Cth).  The issue for determination in this proceeding is whether the notice is valid.  For the reasons which follow I consider that the notice is valid, save for one aspect which is severable. The severable aspect raises an issue about whether discretionary relief should be granted. As no useful purpose is achieved in striking out this part of the notice, I consider that such relief should not be granted.

The statutory context

2                     Section 86(1A)(c) empowers an inspector to require a person to produce documents to her or him.  This requirement is sought by notice and pursuant to s 86(1) must relate to one or more of the following purposes:

·          ascertaining whether the requirements of the Workplace Relations Act (other than s 541) have been observed;

·             ascertaining whether awards have been observed; and

·             ascertaining whether certified agreements have been observed.

3                     The notice must identify the award, certified agreement or requirement of the Act which is pertinent to the inspector’s investigation; see Thorson v Pine (2004) 139 FCR 527 at [31].

4                     Counsel for Ms O’Donnell submit that Thorson v Pine is wrongly decided.  I consider that I should follow it unless convinced that it is plainly wrong; see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [38].  I am not so convinced.  Nothing put by counsel causes me to consider that the views expressed in that judgment are wrong whether clearly or otherwise.  I treat the judgment as one of a single judge of the Court which is not erroneous and one which therefore should be followed. The Full Court in Laing v Carroll [2005] FCAFC 202 did not overrule Thorson v Pine, despite being asked to do so. In any event, this matter can be decided favourably to Ms O'Donnell on the assumption that Thorson v Pine is correctly decided.

The notice

5                     Ms O’Donnell, in her notice to Mr Donnelly, dated 9 August 2005, states her purposes in issuing the notice.  They are fourfold.  They are for the purpose of ascertaining:

·        “whether an order of the [Australian Industrial Relations] Commission known as the Visy Cartons Pty Ltd Broadmeadows Site Order 2004, to which the National Union of Workers … is a party, has been breached;” (“the first purpose”)

·        whether section 170MN of the Act has been observed by; organisations bound by the provision of any certified agreement or s 170MX(3) Award to which the NUW or their related bodies corporate is party, officers or employees of such an organisation acting in that capacity, or employees whose employment is subject to the certified agreement or s 170MX(3) Award; (“the second purpose”)

·        whether section 187AA of the Act has been observed by Visy Cartons Pty Ltd and by its employee (or employees) in respect of any payment (or payments) in relation to a period during which the employee (or employees) engaged in industrial action concerning or involving the Broadmeadows Site (“the Project”); (“the third purpose”) and

·        [whether] section 187AB of the Act has been observed by any organisation and/or an officer, member or employee of any organisation, in relation to either making a claim for Visy Cartons Pty Ltd to make a payment (or payments) to an employee in relation to a period during which the employee (or employees) engaged in industrial action or in relation to organising, or engaging in, or by threatening to organise or engage in industrial action with intent to coerce an employer to make such a payment (or payments);” (“the fourth purpose”).

6                     The notice then sets out, in ten numbered paragraphs, the types of documents Ms O’Donnell seeks from Mr Donnelly.  The tenth paragraph is no longer pressed.  The other nine paragraphs are as follows:

“1.    All documents which record or list the names, contact details, job classification and work location of any employees of Visy Cartons Pty Ltd who were employed pursuant to an industrial award or certified agreement in relation to the Project between 1 September 2004 and 16 September 2004 inclusive (“the industrial action period”);

2.      All documents which record or list the names, contact details, job classification and work location of any employees of Visy Cartons Pty Ltd who were rostered to work on the Project during the industrial action period;

3.      All documents containing records of monies paid to any employees of Visy Cartons Pty Ltd, who were employed on the Project, in respect of the industrial action period;

4.      All documents detailing the names of any officers, employees, agents, delegates, representatives or members of the NUW who were also employed by Visy Cartons Pty Ltd on the Project during the industrial action period, and their respective positions within the NUW;

5.      All documents containing details of any threatened or actual industrial action or threatened or actual stoppages of work including in particular strikes, unauthorised stoppages and any other bans or limitations on the performance of work by employees of Visy Cartons Pty Ltd on the Project during the industrial action period;

6.      All documents relating to any contacts or dealings by persons who are members, officers, agents, delegates, employees or representatives of the NUW with any;

         (i)        employee of Visy Cartons Pty Ltd; or

         (ii)       person employed or engaged on the Project;

                     in relation to:

                     (a)     threatened or actual industrial action;

                     (b)     threatened or actual stoppages of work;

                     (c)     any other bans or limitations on the performance of work;

         on the Project during the industrial action period;

7.      All documents communicating details of the order known as the Visy Cartons Pty Ltd Broadmeadows Site Order 2004 to any person employed or engaged on the Project during the industrial action period;

8.      All documents communicating notice of the details of the order known as the Visy Cartons Pty Ltd Broadmeadows Site Order 2004 to any officer, employee, agent, delegate, representative or member of the NUW;

9.      A copy of all awards or industrial agreements which apply to the employment of employees of the Project during the industrial action period.”

The first purpose

7                     Counsel for Mr Donnelly contends that the first purpose is not a legally proper purpose under s 86.  He says that the Visy Cartons Pty Ltd Broadmeadows Site Order 2004 is an order of the Australian Industrial Relations Commission which is made under s 127.  It is not an award.  He contends that the first purpose is one of ascertaining whether a requirement of s 127 has been observed.  Counsel submits that an inspector has no enforcement role under s 127.

8                     Counsel for Ms O’Donnell acknowledge that a s 127 order is not an award.  But they say that the first purpose refers to the ascertaining of whether s 127 has been observed, and in particular to s 127(5), which compels a person bound by a s 127 order to comply with it.  Counsel submit that s 127 is not relevantly different from any of the other requirements of the Act, the observance of which can be investigated, none of which are expressly identified in s 86.  They further say that it is irrelevant whether an inspector is not a person who may bring a breach of s 127 to the attention of the Court.  They say that an inspector’s role under s 86 is investigation and not enforcement. However they do say that an inspector may enforce a s 127(1) order under s 178 of the Act.

9                     The first purpose fails to identify the requirement of the Act which is pertinent to Ms O'Donnell’s investigation. That requirement is the one imposed by s 127(5). That provision compels a person or organisation to comply with an order made by the Commission under s 127(1). The first purpose should have been worded as follows:

“whether s 127(5) of the Act has been observed by persons or organisations bound by the order of the Australian Industrial Relations Commission known as the Visy Cartons Pty Ltd Broadmeadows Site Order 2004.”

10                  The written submissions of counsel for Mr Donnelly show that Mr Donnelly understood that Ms O'Donnell intended to, in effect, investigate if s 127(5) has been breached. As the relief sought in the application is discretionary, I do not consider that the problem with the wording of the first purpose, if it is the only error in the notice, would justify the grant of any declaratory or injunctive relief.

11                  The first purpose is severable from the other purposes; see s 46 Acts Interpretation Act 1901 (Cth). Paragraphs 7 and 8 of the documents sought from Mr Donnelly relate to the first purpose. No useful purpose is served by the Court striking out the first purpose and paragraphs 7 and 8 when a reworded notice referring to s 127(5) and repeating a request for the documents in paragraphs 7 and 8 is capable of being sent later today.

12                  Counsel for Mr Donnelly took issue with Ms O'Donnell seeking documents which could not be used by her for the purpose of any litigation. That submission is rejected. Ms O'Donnell, as an inspector, may issue a proceeding for a penalty for a breach of s 127(1) order made by the Commission. That entitlement arises from s 178(5); see Metropolitan Fire and Emergency Services Board v United Firefighters Union of Australia [2005] FCA 1231, per Ryan J at [11] and [16]. If Ryan J erred in so deciding, for the reasons referred to under the heading “the second purpose”, an inspector is competent to investigate compliance with requirements of any section of the Act.

The second purpose

13                  Counsel for Mr Donnelly submit that it is not part of an inspector’s role to enforce s 170MN.  He also says that an inspector must have a reasonable belief that s 170MN has been breached.  He contends that the second purpose lacks particularity by failing to specify any particular agreements in relation to which Ms O’Donnell seeks to ascertain compliance.  He also says that the purpose is ambiguous as to the identity of the relevant organisations bound by an agreement or award.

14                  Counsel for Ms O’Donnell submit that an inspector is empowered to investigate breaches of s 170MN, despite having no role in seeking to enforce the section.  They say that there is no statutory requirement that the inspector have a reasonable belief that s 170MN has been breached.  All that is required is that the inspector identify the sections of the Act which may have been breached.

15                  There is no specific limitation provided in s 86(1) on the range of requirements in the Act in respect of which an inspector may seek documents to ascertain compliance. This is so irrespective of the standing of an inspector to seek enforcement in a court of any breaches of the Act which are disclosed by her or his investigation. The investigative role is distinct from the enforcement role. An inspector is a public servant and may report to departmental superiors on the results of any investigation for the purpose of ascertaining whether the Act is being complied with in specific respects. This is not a role which is extraneous to the powers of an inspector, and may result in a matter being raised in a report to the Minister under s 88.

16                  The sub-purpose in mind for Ms O’Donnell to ascertain under this sub-heading is whether a provision of the Act has been breached.  The relevant provision, s 170MN, is disclosed in the identification of the purpose.  The fact that the particular awards or agreements are not set out does not mean that a relevant purpose is not stated.  Had the relevant purpose been to ascertain whether an award or certified agreement had been breached, it would have been expected that the award or agreement be identified for the purpose to be properly stated and conveyed to the recipient of the notice.  Paragraph [36] of Thorson v Pine is to be understood in that sense.

17                  While the purpose of Ms O’Donnell may relate relevantly to organisations or associations other than NUW, it is clear that only NUW documents are sought from Mr Donnelly in respect of NUW’s operations in Victoria.  It is also clear that only NUW documents concerning Visy Cartons Pty Ltd at its Broadmeadows site with respect to the period 1 September to 16 September 2004 are sought from Mr Donnelly.  However, as explained below, the width of the documents sought does not make the notice invalid.

18                  The second purpose is a legitimate purpose pursuant to s 86(1).

The third and fourth purposes

19                  Each of the third and fourth purposes identifies a section of the Act concerning which Ms O’Donnell wishes to ascertain whether there has been compliance.  She identifies specifically ss 187AA and 187AB.  For the reasons expressed with respect to the first two purposes, I consider that these purposes are valid ones under s 86.

The classes of documents

20                  Counsel for Mr Donnelly contends that the documents sought in the notice variously:

·          require Mr Donnelly to form a legal opinion about who is employed pursuant to awards or agreements, as well as determine which are the relevant industrial awards and agreements, including agreements made outside Victoria;

·          are too broad for use of the expressions “in respect of”, “relating to” and “in relation to”; and

·          require Mr Donnelly to form a legal opinion about the meaning of “industrial action”.

21                  Counsel for Ms O’Donnell contend that the above objections are appropriate for a contest about the width of a subpoena but are not relevant to an investigative notice under s 86.

22                  A notice under s 86 is akin to a notice under s 155 of the Trade Practices Act 1974 (Cth).  The fact that a notice seeks documents in wide terms does not mean that a s 86 notice is invalid; see by way of analogy under s 155 of the Trade Practices Act; Melbourne Home of Ford Pty Ltd and Others v Trade Practices Commission and Another (1980) 31 ALR 519 at 529 to 531.

23                  So long as the powers contained in s 86 have not been exceeded, and the request to produce documents is reasonably capable of being regarded as related to a purpose contained in s 86, it is no valid objection to the request to contend that compliance with it is burdensome.

24                  For the foregoing reasons the application must be dismissed.  In summary, the purposes identified (including the first purpose as properly understood and in context) are all ones relevant to ascertaining whether requirements of the Act have been observed.  The width of the documents sought does not bear on the validity of the investigative notice.

Associate:

Dated:              4 October 2005