FEDERAL COURT OF AUSTRALIA

Esso Australia Pty Ltd v Australian Workers Union (No 2) [2018] FCA 2089

ORDERS

THE COURT ORDERS THAT:

1.    The parties consult and submit an agreed minute of order to reflect these reasons, and any further directions that are sought by 4.00 pm 17 January 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    These reasons relate to an interlocutory application by the respondent that it be excused from compliance with an order of the Court made 3 August 2018 that the parties give discovery of documents in relation to categories of documents to be served upon them.

Background

2    The applicants are the operator and a joint-venture partner in an oil and gas project in Bass Strait. By this proceeding the applicants seek the imposition of pecuniary penalties and orders for compensation in relation to contraventions of sections 343, 346, and 348 of the Fair Work Act 2009 (Cth) arising from unprotected industrial action organised by the respondent from 4 until 17 March 2015. The applicants seek the imposition of penalties under s 346 of the Act, and seek to invoke s 345(1) and (2) of the Act to support orders for compensation.

3    The contraventions that are relied on are the subject of declarations numbered 5 to 13 of Jessup J made on 13 August 2015. The reasons containing the findings supporting the declarations were published on 24 July 2015: Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304. There were subsequent appeals to the Full Court, and to the High Court of Australia, which resulted in declarations numbered 1, 2, 3, and 4 (concerning whether industrial action was protected action) being set aside, with the High Court substituting a declaration that industrial action organised by the respondent subsequent to the respondent’s contravention on 6 March 2015 of an order made by the Fair Work Commission was not protected action: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404.

4    For present purposes, the circumstances giving rise to the proceeding are sufficiently summarised in paragraphs [13] to [15] of the reasons of the majority in the High Court, which draw upon the reasons of Jessup J at first instance. To that summary should be added that at the same time the unprotected industrial action organised by the respondent occurred, there was protected industrial action organised by other unions in respect of employees who were not members of the respondent, which counsel for the respondent submitted may have some significance to the relief sought by the applicants in this proceeding.

5    Illustrative of the contraventions that are the subject of the claim for penalties and compensation is declaration 6, which is in the following terms –

6.    From 6:01 pm on 6 March 2015 until the making of the Court's interim order on 17 March 2015, the respondent contravened section 343 of the FW Act by organising the industrial actions notified to the applicant on 3 February 2015, with intent to coerce the applicant to:

(a)    exercise a workplace right by making an enterprise agreement or enterprise agreements with the Esso employees; or

(b)    exercise a workplace right in a particular action by making an enterprise agreement or enterprise agreements with the Esso employees on terms acceptable to the respondent.

6    The findings supporting this declaration included that the respondent contravened an order of the Fair Work Commission which came into effect at 6.00pm of 6 March 2015 by continuing to organise certain industrial action, with the consequence that the requirement for protected industrial action in s 413(5) of the Fair Work Act was not engaged, and all industrial action then became unprotected in the terms declared by the High Court. The applicants will allege that the industrial action extended beyond the industrial action that was held to be in contravention of the Commission’s order of 6 March 2015, and extended to other action that was the subject of a notice from the respondent under s 414 of the Act dated 3 February 2015: Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304 at 316-7 [31], 355 [153]. Whether any such industrial action was taken is an issue in respect of which the respondent makes no admissions, and is therefore a question that arises for determination in relation to the applicants’ claims.

7    The applicants have filed and served particulars of compensation and penalties. The most recent iteration of those particulars was filed 25 July 2018. In general terms, by those particulars the applicants claim that as a result of the contraventions, a scheduled restart of the Longford plant following a planned maintenance shutdown was delayed from 17 March to 31 March 2015, with the consequence that there was an impairment of the joint venture’s ability to produce oil and gas. The applicants claim compensation for lost revenue of the joint venture, which is claimed at AUD 44,315,181.61 together with interest under statute.

8    At an interlocutory hearing before Tracey J on 15 June 2018 counsel for the respondent stated that the respondent reserved its right to argue the question whether the Court can make an order for compensation under s 545(2)(b) of the Fair Work Act for the benefit of a non-party, which in this case is the second applicant’s joint-venture partner, BHP Billiton Petroleum (Bass Strait) Pty Ltd.

Orders for discovery

9    On 3 August 2018, Tracey J made orders for discovery of documents. The orders provided that the parties give discovery of documents in relation to categories of documents that were to served. Subsequently, the parties served the categories of documents that they sought.

10    On 21 September 2018, the respondent filed its interlocutory application seeking to be excused from compliance with the order of Tracey J that it give discovery of documents in relation to the categories that were served by the applicants. The application was supported by two affidavits which annexed relevant correspondence and the categories sought by the applicants. The affidavits were also relied upon to support the respondent’s claim that the discovery sought by the applicants was oppressive.

11    During the course of the hearing on 19 December 2018, the applicants revised the categories of discovery sought from the respondent to the form that is in the schedule to these reasons. The revised categories shall be the subject of my consideration of the respondent’s application.

The submissions of the parties

Submissions advanced on behalf of the respondent

12    Counsel for the respondent advanced submissions in support of the application at two levels.

13    At a general level, counsel submitted that the discovery sought was oppressive. Counsel submitted that in circumstances where discovery in this Court may only be had by order of the Court, the burden of providing discovery had to be considered. That is because r 20.11 of the Federal Court Rules 2011 (Cth) indicates that the making of an order for discovery should facilitate the just resolution of the proceeding as quickly, inexpensively, and efficiently as possible. Counsel for the respondent referred to the reasons of Tamberlin J in United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3] and submitted that the burden imposed on the respondent was disproportionate, and that the respondent should be relieved from giving discovery on the ground of oppression. In support of this submission, counsel relied on evidence that hard copy documents provided by the respondent to its solicitors for the purposes of assessment comprised 63 binders of which 11 binders could be excluded on the ground that their contents appeared not to be relevant. There was also evidence that electronic documents supplied by the respondent to its solicitors that had been culled to the period 15 December 2014 to 31 July 2015 totalled 42,295 documents. Counsel relied on estimates in the evidence that the review of 52 binders would take one solicitor 52 hours of work, and that a review of the electronic documents would take one solicitor approximately 15 weeks of work.

14    Another general submission made by counsel for the respondent was that the applicants were seeking to use the discovery process to assist in making out a case that they might not otherwise be able to make out. Counsel submitted that the applicants had not descended into particularity as to how they framed their case in relation to the actual conduct that was relied upon as being causative of the losses that were alleged.

15    Counsel for the respondent also submitted that the applicants should have records of the industrial action that was taken, when it was taken, and by whom. Counsel submitted that this was an inference that arose because the first applicant had made deductions from the pay of employees under s 471 of the Fair Work Act so that a question arose as to whether the applicants needed the discovery that was sought.

16    Counsel for the respondent also made a submission so as to suggest that the applicants would seek to re-litigate issues that were before Jessup J by seeking to adduce new or further evidence about the industrial action that was taken which could have been presented, but upon which Jessup J was not asked to rule.

17    Counsel for the respondent then made submissions directed to each of the five categories that had been formulated by the applicants. It is not necessary to address all those submissions in detail, because some of the categories were revised by the applicants in running in order to seek to meet some of the criticisms made by counsel for the respondent.

Category 1

18    Counsel for the respondent submitted that category 1 was objectionable because it sought production of information that was confidential and protected under provisions of the Privacy Act 1988 (Cth). It is not otherwise necessary to address the respondent’s submissions as category 1 was revised by the applicants to meet the criticisms made by the respondent.

Category 2

19    Counsel for the respondent submitted that the range of dates in category 2 was too wide. Counsel submitted that it was not reasonable to extend the relevant time period back to 10 October 2014, which was well before the period during which the impugned industrial action occurred, and the delay period for which compensation is claimed, namely 17 to 31 March 2015.

20    Counsel also submitted that the defined term “AWU representative”, which includes any member of the AWU, was too wide, as was the defined term, “Esso Employee”, which caught any Esso employee, and not only those who were members of the respondent.

21    Counsel also submitted that the category might require individuals to produce documents that might incriminate them and expose them to penalties at the suit of other parties, or a regulator.

22    By reference to category 2, counsel submitted that it was onerous to produce documents in that category when relevant findings had already been made by Jessup J.

Category 3

23    Ultimately, the applicants did not press category 3.

Category 4

24    Counsel for the respondent submitted that category 4, like category 2, extended to a large number of documents, and extended to persons who were not members of the respondent, and for a period beyond what is relevant to the issues in the case.

25    Counsel for the respondent also submitted that the organising of the industrial action had already been determined by Jessup J, and that consideration of relief to be given should proceed on the basis of Jessup J’s findings.

Category 5

26    Counsel for the respondent submitted that category 5 was also too wide. Counsel focused on the broad period of time that was covered by the category, together with the imprecision in language that was said to exist in category 5 as initially formulated by the applicants. In response to the respondent’s submissions, category 5 was re-formulated to the form appearing in the schedule to these reasons.

27    After its re-formulation, counsel for the respondent maintained the respondent’s objection to category 5. Counsel submitted that the respondent should not have to give discovery to the applicants to assist them in formulating their case in circumstances where the industrial action which the applicants will allege has not been particularised. Counsel also submitted that the unprotected industrial action did not commence until 6 March 2015, and until then the action was protected. Any discovery under category 5 should be limited to the period of the unprotected industrial action. This latter submission was met in part by the applicants amending the commencement of the period referred to in category 5 to 6 March 2015.

Submissions on behalf of the applicants

28    Counsel for the applicants submitted that it should not be assumed that the applicants have detailed, prescriptive records relating to the industrial action that was taken. Counsel stated that the applicants had some records, including payroll deduction forms, some summary reports, and some shift reports. However, counsel submitted that there may be disputes at trial as to what inferences arise from these records, and that not all industrial action may have been recorded. Counsel submitted that the applicants expected that the respondent would have some records as to what employees were told, and what they were doing.

29    Counsel for the applicants challenged the suggestion that the respondent faced an onerous burden in making the discovery sought. Counsel made submissions including that the respondent’s affidavit material on the question of oppression described a necessary process of culling documents held by the respondent, and was ambiguous. Counsel also submitted that it appeared that the volume of documents provided by the respondent to its solicitors covered a much greater period of time than was necessary for the purposes of making discovery, and that to suggest that a process of culling and examination of documents must be undertaken does not make the process onerous.

30    Counsel submitted that Jessup J considered industrial action at a general level, and did not descend into making findings about which employees stopped work when. The case was not conducted at that level, but was conducted at an organisational level.

31    Counsel for the applicants also submitted that the circumstances of the contraventions, including the finding of Jessup J at [88] that the notice of 3 February 2015 was given in the knowledge of the shutdown, and that the inference that the bans were intended to affect the shutdown was irresistible, were relevant to penalty. Counsel submitted that although the subjective belief of those responsible for organising the industrial action was irrelevant to the question of liability (as Jessup J held at [171], which was upheld by the High Court), the question of subjective belief would be relevant to penalty. Counsel foreshadowed that the applicants would challenge any suggested belief that the industrial action would be protected. Counsel submitted that the question of subjective belief was not an issue before Jessup J, because his Honour had found that issue to be irrelevant. Counsel submitted that documents relating to the planning of the industrial action were therefore relevant.

32    Counsel for the applicants submitted that it was clear that the respondent would be seeking to make an issue in the proceeding as to what employees took what action. The industrial action took place offshore as well as Barry Beach, Long Island Point, and Longford. Counsel submitted that causation will be in issue raising questions as to what the organisation of the industrial action by the respondent caused the employees to do. Counsel pointed to some of the complexities that may arise in considering the causal effect of unprotected industrial action on the maintenance schedule, including the effect of protected industrial action before 6 March 2015, and the effect of protected industrial action at about the same time that was organised by other unions.

33    In relation to the categories that are in issue, counsel for the applicants made the following submissions.

Category 2

34    Counsel for the applicants submitted that the industrial action that occurred, and the detail of that industrial action, requires proof. That proof would include proof of industrial action that became unprotected from 6 March 2015. Counsel submitted that the documents sought by category 2 were also relevant to penalty, including on the question of the state of mind of officers of the respondent in relation to whether the bans were outside the terms of the notices.

35    Counsel submitted that the references to “industrial action” and “Esso employee” in category 2 were appropriate. Counsel submitted that all industrial action was in issue, and not merely the bans that led to the Commission’s order of 6 March 2015. A consideration of all industrial action was relevant to determining the cause of the delays that are alleged by the applicants to have caused them financial loss. Further, the reference to “Esso employee” would not be onerous, because the respondent was unlikely to be communicating with Esso employees who were not members of the respondent union.

36    Counsel for the applicants sought to justify the timeframe specified in category 2 on the ground that it was entirely possible that documents regarding the organisation and taking of industrial action were created prior to the industrial action being engaged in as well as after the period ending 17 March 2015. Counsel submitted that these documents are relevant because they may evidence why particular types of action were chosen, when the action was taken, and who engaged in that industrial action. Counsel submitted that the applicants sought documents created from 10 October 2014 on the grounds that there was a statutory declaration dated 10 November 2014 of the Victorian Secretary of the respondent, Mr Ben Davis, that was in evidence before Jessup J which referred to the respondent's intention to apply to the Fair Work Commission for a protected action ballot, and which referred to a draft that proposed bans on “project work”, “de-isolations”, and “stoppages of the performance of all work for an hour”. Counsel submitted that any documents regarding the selection of the particular types of industrial action to include in the protected action ballot are relevant, and for this reason the applicants sought discovery of documents from 10 October 2014, as this allows for the period during which the ballot was prepared.

37    As to the definition of “AWU Representative”, counsel for the applicants submitted that this should cause no difficulty to the respondent in identifying AWU representatives who were communicating with Esso employees at the relevant time.

38    As to the respondent’s submissions in relation to privilege against self-incrimination or exposure to a penalty, counsel for the applicants submitted this was not a proper basis for the respondent to object to making discovery: the obligation to make discovery is on the respondent, and the respondent cannot claim privilege against exposure to a penalty on behalf of another person.

Category 4

39    Counsel for the applicants picked up much the same submissions in relation to category 4 as had been advanced in relation to the overarching issues, and in relation to category 2. Counsel accepted that there was some overlap between categories 2 and 4, but submitted that there were also some differences.

Category 5

40    Counsel for the applicants submitted that category 5 was relevant to causation and to penalty. In response to submissions made on behalf of the respondent, category 5 was re-formulated to the form appearing in the schedule to these reasons.

Consideration

41    There are a number of considerations to which I have had regard in evaluating the categories of documents sought by the applicants, as revised, and in determining whether the respondent should make the discovery that is sought.

42    First, discovery in this Court may be obtained only by order. In determining whether discovery should be ordered, and if so on what terms, regard should be had to whether discovery “will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible”: Federal Court Rules, r 20.11.

43    Second, the applicants’ claim for compensation is very substantial. Of course, at this stage of the proceeding the claim is untested, but I shall proceed on the premise that there is a proper basis to advance the claim, and counsel for the respondent quite properly did not suggest otherwise.

44    Third¸ I have regard to the fact that the contraventions that are the subject of declarations of Jessup J, and in respect of which compensation is sought, may extend at least to all industrial action taken by members of the respondent between 6 and 17 March 2015 which was the subject of the notice of 3 February 2015. The industrial action in issue is not confined to that industrial action which supported the Court’s findings that there had been a breach of the Commission’s order of 6 March 2015.

45    Fourth¸ it was not necessary that Jessup J make findings that identified all the industrial action that might have been taken between 6 and 17 March 2015 and which was the subject of the notice of 3 February 2015, or whether that industrial action had been organised by the respondent, for the purposes of determining the liability issues that were before his Honour. I therefore do not accept for the purposes of this discovery application the submissions made on behalf of the respondent that issues that were before Jessup J will be re-litigated.

46    Fifth, the respondent makes no admissions as to what industrial action was taken in the period between 6 and 17 March 2015. Given the quantum of the claim, no criticism is to be made of the respondent in taking that position at this stage, and counsel for the applicants did not suggest otherwise. However, the fact that the respondent makes no admissions suggests that questions of proof will arise at the hearing. I consider it likely that the identification of what industrial action was taken, when it was taken, whether it was organised by the respondent, and whether it was causative of the delay alleged by the applicants will turn on an appraisal of a matrix of facts, from which the Court will be invited to draw inferences. While it may be the case that the applicants have some direct evidence, and some business records, relating to some elements of the industrial action taken, it may be the case that documents in the possession of the respondent might be admissible too so as to add to the accumulation of detail from which findings based upon that evidence might be made.

47    Sixth, I am not persuaded that the respondent should be relieved from the order that it give discovery on the ground that the applicants have not particularised the industrial action on which they rely. The order of Tracey J of 3 August 2018 states that it was made by consent. One of the purposes of discovery is the production of documents that might assist the other party in the preparation and proof of its case. This case is not an instance that can be characterised as one where the applicants are fishing for a case to ascertain whether one exists: Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 at 438. In my view, the terms of the declarations sufficiently identify the industrial action relied on for the purposes of formulating orders for discovery.

48    Seventh, I consider that it is reasonably arguable that Jessup J did not make complete findings as to the subjective state of mind of the respondent when committing the contraventions, and that issues relating to the respondent’s state of mind at the time of the contraventions remain open for the purposes of the assessment of penalty.

49    Eighth, I reject the submissions of counsel for the respondent that discovery should not be made by the respondent on the ground that individuals who produced documents to the respondent for the purposes of discovery might be exposed to penalties. That is not a complaint that the respondent is entitled to make: Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145; Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 at 379 [32].

50    Ninth, I do not place much weight on the respondent’s claims that the discovery sought by the applicants is oppressive on the grounds that the respondent’s solicitors have to examine a great number of documents. The applicants have made a substantial claim for compensation based upon contraventions of the Fair Work Act that are the subject of declarations by the Court. The respondent makes no admissions as to the issues that are likely to be at the heart of the determination of the claim, including what industrial action foreshadowed by the notice of 3 February 2015 was taken by its members. The affidavit evidence of the respondent’s solicitor concerning the volume of documents that may need to be examined, and the likely time that would take does not persuade me that the discovery burden is disproportionate, oppressive, or otherwise not warranted. Any discovery order made against the respondent will require the respondent and its solicitors to make searches for, and to examine hard copy and electronic documents. There is no suggestion that the respondent and its solicitors will be unable to marshal the resources for that task. That is not to say, however, that the terms of the categories proposed by the applicants should not be scrutinised so as to ensure that there is proportionality between what is sought, and the real issues that are likely to be in dispute between the parties.

51    I shall now consider the categories in turn.

Category 1

52    The respondent should give discovery by reference to category 1, as revised. The contents of the documents are likely to be directly relevant to issues in dispute. The claim that the information in discoverable documents might be confidential, or subject to privacy principles, is not usually a sufficient reason to deny inspection: Index Group of Companies Pty Ltd v Nolan [2002] FCA 608 at [8], citing Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. The respondent did not make detailed submissions as to the content of applicable Australian Privacy Principles under the Privacy Act. Subclause 6.2(b) in Schedule 1 of the Privacy Act would appear to exclude the discovery of documents which contain personal information from the operation of subclause 6.1 of the Australian Privacy Principles.

53    The information as to membership of the respondent sought by the applicants may be accepted to be confidential (Hearne v Street (2008) 235 CLR 125 at 157-162 [105]-[112]), but that is not a sufficient reason to deny discovery in this case, subject to any express terms relating to inspection that may be necessary in the interests of justice beyond the accepted implied obligations. Upon the respondent making discovery of the documents within category 1, the parties can consider between themselves any necessary terms as to confidentiality of the information, and approach the Court should that be necessary.

Categories 2 and 4

54    I shall consider categories 2 and 4 together. There is some overlap between the documents that categories 2, 4, and 5 might pick up. However, there is no requirement that categories of documents should be mutually exclusive.

55    I consider that the respondent should make discovery of documents relating to the impugned industrial action that occurred in 2015 in connection with the applicant’s Bass Strait oil and gas project. I accept that it is reasonable that the respondent should make discovery of documents relating to the organisation and taking of the industrial action that was the subject of the Court’s declarations. That discovery is justified by the considerations to which I have referred at paragraphs 43 to 48 above. However, there are two issues that arise in relation to categories 2 and 4. The first issue is the periods of time referred to in the categories, being from 10 October 2014 to 31 March 2015. The second issue is the way in which the categories have been drafted. The two issues overlap to a degree.

56    Jessup J stated at [30] that over the period relevant to this proceeding the respondent gave eight notices of intention to take protected industrial action. The earliest of those notices was 16 January 2015. But it appears that the planning of the industrial action may have commenced at least in November 2014. I was referred to a statutory declaration of the Victorian Secretary of the respondent, Mr Ben Davis, made 10 November 2014, which referred to the protected action ballot. The applicants sought discovery of documents going back earlier to 10 October 2014 on the ground that this would pick up the period during which the protected action ballot was being prepared, and the types of industrial action sought to be taken. However, I consider it important to note that the evidence before Jessup J was that the protected action ballot was published by the Australian Electoral Commission on 9 January 2015.

57    On the material before me, I am not persuaded to order discovery in the terms of categories 2 and 4 relating to the period before 1 January 2015. While there is always a degree of speculation involved in making judgments about these matters, I am not persuaded that there is sufficient relevance of such documents to the real issues that are likely to be in controversy, including what industrial action was organised by the respondent and then taken in the period 4 to 17 March 2015 (being the period covered by the declarations), and in relation to penalties the state of mind that is to be attributed to the respondent. I take account of the fact that the result of the ballot was not published until 9 January 2015, and of the fact that notice of the impugned industrial action was given by the respondent on 3 February 2015. I take account of the fact that it is the industrial action that was the subject of that notice which is specified in declarations 6, 9, and 12 of Jessup J, and that the other declarations specify the industrial action that was organised in contravention of the Act. I also take account of the terms of category 5 (which I will allow) which picks up documents evidencing industrial action engaged in by members of the respondent for the period 6 March 2015 to 31 March 2015, and contains no limit on the dates such documents might bear.

58    In relation to other submissions made on behalf of the respondent, I am not persuaded that the defined terms “AWU Representative” or “Esso Employee” render the categories sought vexatious, or oppressive. It may require some professional skill in examining the documents to identify such records, correspondence, and communications, but without more, I do not regard that task as being oppressive.

Category 5

59    I will allow category 5 as reformulated and set out in the schedule to these reasons. In circumstances where it is plain that the extent of the industrial action that was engaged in by members of the respondent will be put in issue, and having regard to the magnitude of the compensation claimed by the applicants, I consider that category 5 is appropriate. I have rejected the respondent’s submission that discovery should not be given by the respondent to assist the applicants in proof of their case. In response to submissions made by the respondent as to the period covered by category 5, the applicants proposed that the period commence on 6 March 2015. I am persuaded that the period should extend to 31 March 2015, as this corresponds to the last date of the period of delay alleged by the applicants.

Further observations

60    If, upon the respondent making discovery, or upon the respondent filing any statements of evidence relating to compensation and penalties, or otherwise in the course of preparing for hearing, there appears a basis on which the applicants might reasonably seek further documents, then the applicants are not precluded (subject to r 20.11) from making a further application for non-standard discovery, or from seeking the production of additional documents by notice to produce. This might occur, for instance, if the respondent sought to put in issue industrial action taken before 6 March 2015 as being causative of the claimed losses in circumstances where, at least at present, it makes no admissions as to precisely what industrial action took place: cf, Purkess v Crittenden (1965) 114 CLR 164.

Conclusions

61    Counsel for the respondent sought to be heard on timetabling issues in the event that I considered that the respondent should give discovery.

62    I will hear counsel on the terms of the orders.

Associate:

Dated:    24 December 2018

SCHEDULE

CATEGORIES OF DOCUMENTS SOUGHT BY THE APPLICANTS

In this list of categories of discovery the following terms have the following meanings:

Categories

1.    All documents evidencing the membership of the AWU by any Esso Employee between 1 January 2015 and 31 March 2015, provided that only one document evidences that membership be discovered for each Esso Employee (which may be a list).

2.    All documents, including correspondence and records of oral communications between any AWU Representative and any Esso Employee between 10 October 2014 and 31 March 2015 regarding:

a.    the organisation and/or taking of any industrial action; and/or

b.    any orders made by the Fair Work Commission and/or the Federal Court of Australia regarding the cessation of industrial action.

3.    [Not pressed].

4.    All records, including notes, minutes and diary entries, of meetings between any AWU Representative and any Esso Employee between 10 October 2014 and 31 March 2015 regarding:

a.    the organisation and/or taking of industrial action, including approval of industrial action by Esso Employees;

b.    reports to Esso Employees about the proposed and taken industrial action;

c.    the status of industrial action organised by the AWU and/or engaged in by Esso Employees as "protected industrial action" and/or "unprotected industrial action."

5.    All documents evidencing any industrial action engaged in by any Esso employee who is a member of the AWU whilst at work during the period between 6 March 2015 to 31 March 2015.