Federal Court of Australia

DHL Supply Chain (Australia) Pty Limited v United Workers’ Union (No 2) [2021] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the orders made on 24 June 2021 be varied nunc pro tunc by replacing “4.30pm” in that order with “5pm” so as then to read, from 24 June 2021:

On or before 5pm on Friday, 25 June 2021, each of the respondents deliver up into the possession of the solicitors for the applicant, marked to the attention of Michael Tamvakologos, all copies (including electronic copies) of any completed, or partially completed, union Form in their respective possession, power or control.

2.    Order 3 of the orders made on 24 June 2021 be varied nunc pro tunc by replacing “28 June” in that order with “20 September” so as then to read, from 24 June 2021:

On or before 4.30pm on Monday, 20 September 2021, each of the respondents deliver up into the possession of the solicitors for the applicant, marked to the attention of Michael Tamvakologos, all materials in whatever form, produced or derived from any of the information the subject of any request in the Union Form (other than Unnecessary Information), in their respective possession, power or control.

3.    Order 5 of the orders made on 24 June 2021 be varied nunc pro tunc by replacing “Upon” in that order with “After” and replacing “forthwith” in that order with “shall” so as then to read, from 24 June 2021:

After compliance with order 2 above, the respondents shall delete and destroy all electronic copies of any completed, or partially completed Union Form from any computer, telephone or other electronic device that is in their respective possession, power or control.

4.    Order 6 of the orders made on 24 June 2021 be varied nunc pro tunc by replacing “Upon” in that order with “After” and replacing “forthwith” in that order with “shall” so as then to read, from 24 June 2021:

After compliance with order 3 above, the respondents shall delete and destroy all materials in whatever form, produced or derived from any of the information the subject of any request in the Union Form (other than Unnecessary Information) from any computer, telephone or other electronic device that is in their respective possession, power or control.

5.    Order 7 of the orders made on 24 June 2021 be varied nunc pro tunc by deleting the words “, within 24 hours of it coming into their possession, power or control” so as then to read, from 24 June 2021:

In the event that any of the information or materials referred to in orders 2 or 3 above comes into the possession, power or control of any respondent after the making of these orders, that respondent must comply with the substantive obligations in each of order 2 to 6 with respect to that information or material.

6.    Order 12 of the orders made on 24 June 2021 be varied nunc pro tunc by inserting sub-paragraphs (b)(iii) and (iv) and paragraphs (c) and (d) so as then to read, from 24 June 2021:

In these orders:

...

(b)    “Unnecessary Information” means any of the following information, namely:

(c)    Electronic copies of documents can be delivered up in hard copy form and documents in hard copy can be delivered up in electronic form and multiple copies of the same document are not required to be delivered up.

(d)    Text messages or Whatsapp messages and the like may be delivered up by providing a screenshot of the message containing the materials described in Order 3 or such other manner agreed between the parties.

7.    Costs be reserved.

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

REASONS FOR JUDGMENT

SNADEN J:

1    On 24 June 2021, the court granted an application made by the applicant (“DHL”) for interlocutory injunctive relief: DHL Supply Chain (Australia) Pty Ltd v United Workers’ Union [2021] FCA 707 (Snaden J). That application concerned efforts that had been made by the first respondent (the “Union”), through (or primarily through) two of its officers (Mr Dundon and Ms Beynon), to secure from DHL employees various species of information concerning DHL’s business. Those efforts focused upon the dissemination, completion and collection of a template form that the respondents had circulated to DHL’s employees (or certain of them—in particular on-site delegates of the Union). That document (described on that occasion and hereafter as the “Union Form”) assumed both physical and electronic shape.

2    By the court’s orders, each of the respondents was required (amongst other things) to:

(1)    deliver up into the possession of DHL’s solicitors all copies (including electronic copies) of any completed or partially completed Union Form that they had in their possession, power or control—and to do so on or before 4:30pm on Friday, 25 June 2021;

(2)    deliver up into the possession of DHL’s solicitors all materials, in whatever form, that were produced or derived from any of the information that had, to that point, been harvested from completed or partially completed Union Forms; and

(3)    thereafter (and forthwith) delete and destroy, from any computer, telephone or other electronic device within their possession, power or control:

(a)    all electronic copies of any completed or partially completed Union Form; and

(b)    all materials, in whatever form, produced or derived from any of the information that had, to that point, been harvested from completed or partially completed Union Forms.

3    The orders that were made (the “June Orders”) made allowance for the redaction of some information contained within completed Union Forms (for example, information about the number of Union members employed by DHL at particular locations).

4    The respondents took steps to comply with the June Orders. As is explored in some detail below, those steps were not sufficient to ensure perfect compliance. In the months that have transpired since they were made, the respondents have uncovered circumstances that have put them on the wrong side of the June Orders. There is no suggestion that they have acted in contempt of the court; but their technical non-compliance has ramifications under the Fair Work Act 2009 (Cth) (the “FW Act”), the particulars of which will shortly be explained.

5    By an interlocutory application dated 17 September 2021, the Union now moves the court for orders to amend the June Orders nunc pro tunc. The effect of the amendments proposed is to excuse the non-compliance that has occurred; in effect, to bring about a reality within which that non-compliance should be deemed never to have occurred. DHL opposes most (but not all) of the relief that is sought. For the reasons that follow, I am satisfied that it is in the interests of justice to grant the bulk of the relief that is sought and I shall do so.

The application

6    The application is supported by nine affidavits, namely:

(a)    an affidavit of Andrei Bilic, an organiser of the Union, dated 17 September 2021;

(b)    an affidavit of Chris Dundon, an organiser of the Union and the second respondent to the proceeding, dated 17 September 2021;

(c)    an affidavit of Jonathon Dixon, a coordinator employed by the Union, dated 17 September 2021;

(d)    an affidavit of Mia Rachel Dabelstein, an organiser of the Union, dated 17 September 2021;

(e)    an affidavit of Alex Snowball, an industrial coordinator employed by the Union, dated 17 September 2021;

(f)    an affidavit of Rowan Payne, a solicitor and industrial officer employed by the Union, dated 20 September 2021;

(g)    two affidavits affirmed by Daniel James Victory, a solicitor employed by Maurice Blackburn Lawyers (the Union’s solicitors), on 22 October 2021 and 5 November 2021, respectively; and

(h)    a second affidavit affirmed by Jonathan Dixon on 5 November 2021;

Various objections were taken to passages within some of those affidavits, all of which were determined orally at the commencement of the hearing of the application.

7    In opposition to the application, DHL relies upon two affidavits, namely:

(a)    an affidavit affirmed by Stephen Crilly, a solicitor employed by Seyfarth Shaw (DHL’s solicitors), on 22 October 2021; and

(b)    an affidavit affirmed by Carolyn Jane Gorrey, an HR Manager at DHL, on 6 November 2021.

8    Both sides provided helpful written outlines of submissions.

9    As has been recorded, the application seeks relief in the form of orders to vary the June Orders nunc pro tunc. Before setting out the nature of those variations, it is helpful to summarise the events that have transpired since the June Orders were made.

Background facts

10    On Friday, 25 June 2021, the respondents arranged for certain steps to be taken to deliver into the possession of DHL’s solicitors the Union Forms that had been completed (or partially completed) and collected. In her affidavit, Ms Dabelstein deposed to having delivered to those solicitors a bundle of documents at approximately 4:00pm on that day. As it turned out, that bundle was incomplete—a fact of which she became aware after she had attended at the solicitors’ offices. Upon learning of that reality, she went back to those offices and delivered a further document. That occurred at approximately 4:42pm, some 12 minutes after the deadline stipulated in the June Orders.

11    Those steps were the culmination of activity that began earlier that day, at a meeting that was convened via web conference and attended by Messrs Payne, Snowball and Dixon, as well as two other officials of the Union, Mr Matt Toner and Mr Ben Redford. During that meeting, there was discussion about the steps that the Union would need to take by 4:30pm that afternoon to comply with order 2 of the June Orders.

12    Following that meeting, Mr Payne and Mr Dixon attended and addressed a meeting of those of the Union’s organisers who were responsible for organising members employed by DHL. The meeting discussed the need to collate all of the completed or partially completed Union Forms for delivery to DHL’s solicitors by 4:30pm that day. Mr Dixon explained to those present that that material would need to be obtained “…quickly so that it could be assessed, redacted and handed up by the end of the day”. Reference was also made to the collection of “documents in electronic format” ahead of its being delivered on the following Monday.

13    Responsibility for redacting the Union Forms that were collected over the course of the day fell to Mr Dixon. As is explored below, that process mostly—but not entirely—mirrored what the June Orders contemplated.

14    On the following Monday—28 June 2021—the respondents arranged for various derivative materials (that is to say, materials derived from the information that had been harvested from completed or partially completed Union Forms) to be delivered to DHL’s solicitors. Again, that was the culmination of efforts attended to at least throughout the course of that day, following a meeting that Messrs Payne, Snowball and Redford attended at 9:00 that morning. There, the three officials discussed the fact that some errors had been made in collating and redacting the Union Forms on the preceding Friday, which they attributed to having involved too many different officials. It was agreed that, for the purposes of collating derivative material for delivery that day, fewer people should be involved in coordinating the collation process.

15    Following that meeting (and in consequence of a discussion that he had had with Mr Dixon on the preceding Friday), Mr Snowball spoke with Mr Dundon and Ms Beynon about collating derivative materials for delivery that afternoon. From the “extensive” discussions that he had had with Mr Dixon on 25 June, Mr Snowball formed the view that the Union had identified which of its officials had information that needed to be produced.

16    By later that (Monday) afternoon, Messrs Payne, Redford and Snowball were confident that they had collated all relevant derivative material from the officials of the Union who had any. Mr Snowball provided what had been collated to DHL’s solicitors. To the extent that that material assumed electronic form, he then deleted the electronic copies of what he had provided.

17    It is apparent that the respondents thought that what was delivered on 28 June 2021 was a complete cache of what they had been ordered to deliver. That understanding, it turns out, was incorrect in four respects.

18    The first concerns an officer of the Union, Ms Dabelstein. On 8 September 2021, Ms Dabelstein undertook a further search of her phone and “…discovered Whatsapp messages that [she] had forgotten that [she] had”. It is not clear whether those messages contained any completed or partially completed Union Forms; nor, for that matter, what they contained at all. Nonetheless, Ms Dabelstein took steps to “screenshot” the messages and provide them to the Union’s solicitor, Mr Victory. Those images were then provided to DHL’s solicitor, Mr Tamvakologos, whereupon both Ms Dabelstein and Mr Victory deleted them.

19    Second, on 9 September 2021, another officer of the Union, Mr Bilic, advised Mr Rowan Payne, the Union’s in-house solicitor/industrial officer, that he had a text message and a photograph on his telephone that apparently fell within the contemplation of the June Orders. That information had been the subject of discussion with other officers of the Union on Friday, 25 June 2021; but it appears that, through inadvertence or otherwise, it was not collected for delivery to DHL’s solicitors. Instead, that took place on 16 September 2021, when Mr Bilic provided the text message and photograph to the Union’s lawyers, who in turn provided it to Mr Tamvakologos. Again, those materials have since been deleted.

20    Third, on 8 and 9 September, Mr Dundon undertook a further search of his telephone, as a result of which he uncovered:

(1)    some emails in a “sent” items folder, by which he had, on 28 June 2021, emailed to Mr Snowball certain documents so that they could be delivered to DHL’s solicitors in compliance with the June Orders—Mr Dundon apparently sent and then deleted the relevant material but then did not think also to delete the sent emails;

(2)    an additional copy of a document that he had provided to Mr Snowball on 28 June 2021 (and that had then been delivered to DHL’s solicitors), which he had not, until then, realised that he had; and

(3)    two text messages—the content of which is not apparent—which he had neglected to check when going through his telephone on 28 June 2021.

21    Fourth, further material was discovered in the “deleted items” folder of Mr Dixon’s email system. On 28 June 2021, Mr Dixon sent an email to Mr Snowball, to which was attached a “zip” file containing some WhatsApp messages. That material was delivered to DHL’s solicitors in compliance with the June Orders. After sending the email, Mr Dixon deleted it; however, instead of deleting it entirely, a copy of it was moved to the “deleted items” folder of his email client application. It did not occur to Mr Dixon at the time that he would need to do anything more than “delete” the email as he did. Once he became aware that a copy remained in his “deleted items” folder, he advised the Union’s lawyer, who in turn advised DHL’s lawyer. Following exchanges between them, the material was (more fulsomely) deleted.

22    All of the material described above was promptly supplied to the Union’s lawyers and, through them, to DHL’s lawyers. That occurred on 17 September 2021. Following an exchange between the parties’ solicitors, that material was deleted on 5 October 2021

23    Additionally, the Union discovered another document that was not delivered and/or destroyed as the June Orders required. Ms Dabelstein deposes in her affidavit to discovering, at some point after 28 June 2021 (but on a date that she cannot recall), that she had received a completed or partially completed Union Form by email, a copy of which remained in her “inbox”. A hard copy of that form was included within the bundle that was delivered to DHL’s solicitors in compliance with the June Orders; but, through inadvertence, Ms Dabelstein had not deleted it from her inbox. When she discovered that it was there, she deleted it, thinking that that was, in her words, “…the correct thing to do”.

24    The Union has also discovered that an error was made with respect to some of the completed or partially completed Union Forms that were delivered to DHL’s solicitors on 25 June 2021. Four of the 14 forms so delivered contained redactions that went beyond what the June Orders contemplated. Mr Dixon was responsible for making them. In his affidavit, he explains that he had misunderstood the instructions that had been given to him. Fortunately, Mr Payne realised that that misunderstanding had occurred and only four of the relevant forms were redacted more than they should have been. Plainly enough, the respondents have not retained any of the information that was wrongly redacted.

The case for amendment

25    As is recorded above, there is no suggestion that any of the respondents have acted in contempt of the court. Nonetheless, it is not controversial that the June Orders were not fully complied with. Indeed, that was apparent to the Union by late August 2021, when the present application was first foreshadowed. According to Mr Payne’s evidence, once it was decided that an application would need to be made to regularise what the respondents had done in seeking to comply with the June Orders, additional efforts were made to make sure that there was no other material that fell foul of those orders. Regrettably, those efforts discovered the four species of material described above (at [18]-[21]).

26    The Union’s non-compliance with the June Orders threatens to visit consequences upon it and its members that they should wish to avoid. The Union is presently engaged in bargaining with DHL in respect of the terms to be included within enterprise agreements applicable to two of DHL’s work locations. That bargaining is said to have reached something of a stalemate: in an email that she sent to Mr Dixon on 6 August 2021, Ms Gorrey described the extensive bargaining that had transpired to that point as being at “an impasse”. In his affidavit, Mr Dixon used the same term.

27    The most obvious weapon available to the Union to break the impasse and pressure DHL into accepting terms that it has proposed during the bargaining (or some facsimile of such terms), is to organise, and for its members to engage in, protected industrial action within the meaning given to that concept by s 408 of the FW Act.

28    At the risk of over-simplifying matters, “protected industrial action” is industrial action in respect of which the FW Act confers an immunity from suit: FW Act, s 415. Section 413 of the FW Act identifies the “common requirements” that must be met in order that industrial action might qualify as protected industrial action. Section 413(5) provides as follows:

Compliance with orders

(5)    The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a)    if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;

(b)    if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the employee and the bargaining representative of the employee.

29    For present purposes, it is not controversial that the Union is a bargaining representative in relation to each of the agreements to which the bargaining described above is ongoing; nor that the June Orders were orders that related to those agreements or to matters that arose during bargaining for them. The effect then, of the accepted non-compliance with the June Orders is that the Union is unable to satisfy the requirement for which s 413(5) of the FW Act provides and, therefore, is unable to organise protected industrial action in support of the position that it has advanced in bargaining for the relevant proposed enterprise agreements.

30    It is that reality that the Union hopes to address by the present application. If the June Orders are varied nunc pro tunc in the ways that are proposed, it will follow that the Union will not be taken to have contravened anything and its inability to satisfy the common requirement for which s 413(5) of the FW Act provides will be cured. It maintains that that course should be followed because the non-compliance that has occurred has been inadvertent and not material, and because the consequences of not following it would visit grave injustice upon it and those of its members upon whose behalf it continues to bargain with DHL. DHL resists that course on the basis that the evidence does not disclose a sufficiently valid explanation for the non-compliance that has occurred, which, it says, can and should therefore be attributed to carelessness of a gravity sufficient to warrant against an exercise of the court’s discretion.

Principles to be applied

31    There is no material controversy about the court’s power to make orders of the kind that are sought. The court enjoys a discretion to vary or revoke its own orders nunc pro tunc: Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling and Kings Beach CTS 2942 [2021] FCAFC 143, [85] (Colvin J, with whom Allsop CJ, Markovic, Derrington and Anastassiou JJ relevantly agreed). It has been described as “…a broad power…capable of adaptation to suit the circumstances arising in any particular case”: Hartley Poynton Ltd v Ali (2005) 11 VR 568, 609 [80] (Ormiston JA, with whom Buchanan and Eames JJA agreed).

32    Various factors bear upon the exercise of the court’s discretion. Of significance is the nature of the non-compliance in respect of which it is requested. The discretion will more readily be deployed in respect of non-compliance that is the result of inadvertence or oversight, or that is of trivial or marginal consequence, than it will be in respect of non-compliance that is deliberate or otherwise less easily defended: Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd (2020) 276 FCR 172, 195 [101] (Anastassiou J) (hereafter, “Metro”). Similarly, it will be more readily used to address consequences that are disproportionately unjust, or to avoid situations in which the court’s powers might otherwise serve as “a mask for injustice” (Emanuele v Australian Securities Commission (1997) 188 CLR 114, 152-153 (Kirby J)) or to confer “coincidental good fortune arising from someone else’s failure: Metro, 195 [99] (Anastassiou J).

33    In Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 511, the High Court had occasion to consider the circumstances in which the Fair Work Commission might be moved to vary its own orders in order to permit the organisation of industrial action that would otherwise not satisfy the requirements of s 413(5) of the FW Act. The majority (Kiefel CJ, Keane, Nettle and Edelman JJ) noted (at 581 [49]) that “…it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Fair Work Commission’s powers of variation and revocation under s 603 [of the FW Act] would be available”. Their Honours went on to observe:

If, in exercise of the power conferred by s 603, an order were made by the Fair Work Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order. If, however, it appeared that the failure to file the document on time or to file what was required by the previous order was the result of contumaciousness or unacceptably careless disregard for the terms of the order, or if it were thought that to alter the order retrospectively would amount to an inappropriate or unfair interference with the rights of the parties, it might be expected that the Fair Work Commission would decline to exercise the power conferred by s 603 with the effect that the immunity attaching to protected industrial action would not arise.

34    Those observations concerned the powers of the Fair Work Commission but they are apt to assist in identifying the considerations that inform the exercise of the court’s discretion to grant orders nunc pro tunc: Metro, 189 [67] (Bromberg J).

35    Section 413(5) is sufficiently clear in its terms. It serves to ensure that the legislative gift of protected industrial action is not extended to bargaining participants who fail to observe the rules for which the FW Act provides. In Esso, the majority observed:

Given that the Fair Work Act regime was then and remains predicated on participants abiding by the rules, it is much more likely that the purpose of a provision in that form would have been to deny the immunity of protected industrial action to persons who had not previously complied with a pertinent order or orders and who had thereby demonstrated that they were not prepared, or prepared to take sufficient care, to play by the rules.

36    The court’s power to set aside or vary interlocutory orders is one that should be exercised sparingly and only when clearly warranted: Professional Administration Service Centres Pty Ltd v Commissioner of Taxation (2012) 295 ALR 52, 64 [53] (Edmonds, McKerracher and Nicholas JJ); Deloitte Touche Tohmatsu v Sadie Ville (as trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23, [274]-[275] (Wigney, Markovic and O’Callaghan JJ); Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (Gordon J). Similar observations apply in respect of the court’s power to amend interlocutory orders nunc pro tunc. Such a power should be exercised “…cautiously and only where there has been something exceptional in the facts to justify the making of such an order”: Bingham v England (1996) 17 WAR 226, 234 (Kennedy ACJ, Pidgeon and Ipp JJ). Although, inevitably (as here), many variables will bear upon its assessment, the task for the court asked to vary orders nunc pro tunc is to evaluate whether the circumstances accumulate to a point at which the requirements of justice mandate the relief sought. Typically, that involves a process of assessing the circumstances that led to the default that the application is designed to rectify, the impact that such rectification will have on other litigants and the impact that the default, if not regularised, will visit upon the party making the application.

Application

37    It is convenient at this juncture to identify the relief that is sought. That is best done by replicating the existing relevant June Orders and marking up the changes for which the Union moves:

THE COURT ORDERS THAT:

1.     Until the hearing and determination of the application or further order, the first respondent, whether by itself, its officers, servants, agents or howsoever otherwise, and each of the second and third respondents, be restrained from using, copying, publishing, distributing, disclosing or otherwise disseminating to any person, any information contained or recorded in any completed, or partially completed, Union Form provided to them or otherwise in their possession, power or control, other than for the purpose of complying with these orders.

2.     On or before 4.30pm 5pm on Friday, 25 June 2021, each of the respondents deliver up into the possession of the solicitors for the applicant, marked to the attention of Michael Tamvakologos, all copies (including electronic copies) of any completed, or partially completed, Union Form in their respective possession, power or control.

3.     On or before 4.30pm on Monday, 28 June 2021 20 September 2021, each of the respondents deliver up into the possession of the solicitors for the applicant, marked to the attention of Michael Tamvakologos, all materials in whatever form, produced or derived from any of the information the subject of any request in the Union Form (other than Unnecessary Information), in their respective possession, power or control.

4.     Any material delivered up in satisfaction of orders 2 and 3 may be redacted to the extent that it discloses any Unnecessary Information.

5.     Upon After compliance with order 2 above, the respondents forthwith shall delete and destroy all electronic copies of any completed, or partially completed, Union Form from any computer, telephone or other electronic device that is in their respective possession, power or control.

6.     Upon After compliance with order 3 above, the respondents forthwith shall delete and destroy all materials in whatever form, produced or derived from any of the information the subject of any request in the Union Form (other than Unnecessary Information) from any computer, telephone or other electronic device that is in their respective possession, power or control.

7.     In the event that any of the information or materials referred to in orders 2 or 3 above comes into the possession, power or control of any respondent after the making of these orders, that respondent must comply with the substantive obligations in each of orders 2 to 6 with respect to that information or material, within 24 hours of it coming into their possession, power or control.

7A.     The solicitors of the respondents may retain and use the materials delivered up pursuant to these orders for the purpose of this proceeding and such materials are not required to be deleted under these orders.

8.     On or before 4.30pm on Friday, 25 June 2021, the first respondent generate a notice on its letterhead in the form set out below, signed by an authorised official of the first respondent, and:

(a)     provide a copy of the notice (whether by hand, facsimile, email or any other means) to each of its delegates employed by the applicant; and

  (b)     provide a copy to the applicant.

9.     To the extent necessary, service of the application and supporting affidavits of Grant Matthew Connolly affirmed on 23 June 2021 and Christopher Norman Sheehan affirmed on 23 June 2021 on the second and third respondents as required by Rule 10.01 of the Federal Court Rules 2011 (Rules) be dispensed with, and instead, the provision of those documents by way of email to the email addresses of chris.dundon@unitedworkers.org.au and imogen.beynon@unitedworkers.org.au on or before 8.15am on Thursday, 24 June 2021, shall be deemed as effective service on the second and third respondents respectively.

10.     To the extent necessary, the time for service of the application and supporting affidavits of Grant Matthew Connolly affirmed on 23 June 2021 and Christopher Norman Sheehan affirmed on 23 June 2021 on each of the respondents as required by Rule 8.06 of the Rules, be abridged to 2.15pm on Thursday, 24 June 2021.

11.     The costs of the interlocutory application are costs in the cause.

12.     In these orders:

(a)     “Union Form” means the document marked as Annexure “GMC-8” to the affidavit of Grant Matthew Connolly affirmed on 23 June 2021.

(b)     “Unnecessary Information” means any of the following information, namely:

(i)     information of the kind contemplated by the fields that appear in the top row of the Union Form; and

(ii)     information about the number of members of the first respondent (whether permanent or labour hire) that comprise the workforce at any particular location.

(iii)     redacted information about the total number of workers, number of permanent workers and the number of labour hire workers that comprise the workforce at any particular location on Union Forms delivered up pursuant to Order 2.

(iv)     information that forms part of any electronic materials required to be delivered up pursuant to Order 3 that names or would identify any employee of the Applicant.

(c)     Electronic copies of documents can be delivered up in hard copy form and documents in hard copy can be delivered up in electronic form and multiple copies of the same document are not required to be delivered up.

(d)     Text messages or Whatsapp messages and the like may be delivered up by providing a screenshot of the message containing the materials described in Order 3 or such other manner agreed between the parties.

38    DHL does not oppose the amendments proposed to orders 2, 12(b) and 12(d). Additionally, it does not oppose the introduction of proposed order 12(c), except insofar as it extends beyond permitting the delivery of electronic documents in hard copy form.

39    Attention, then, should turn to the remaining amendments for which the Union moves. With the exception of the insertion of proposed order 7A, all of the amendments that are resisted are designed to regularise the non-compliance that is summarised in the reasons above. All of them can be addressed collectively, as all are proposed and resisted on the same bases.

40    I am satisfied that it is in the interests of justice to make the amendments in question—that is, the amendments concerning orders 3, 5, 6, 12(b), 12(c) and 12(d) set out above. In the present case, there is no suggestion that the accepted non-compliance with the June Orders was a consequence of active or contumelious disregard of what was required. On the contrary, the evidence makes quite clear that the respondents—and the Union in particular—applied themselves to the tasks that the orders set them with haste and diligence. Immediate steps were taken to that end, the end result of which was the delivery of a volume of material in a short space of time. As various deponents made clear, the collation and provision of that material was not a simple process and, at least in some cases, was the source of not inconsiderable anxiety.

41    No doubt that reflected the speed with which material was required to be delivered. Although no issue was raised at the time about the impossibility of meeting the relatively tight timeframes by which certain things were to be done under June Orders, it remains nonetheless that they placed the respondents in a position requiring more than a little speed and attentiveness.

42    In saying so, I respectfully reject the contention advanced on behalf of DHL that the evidence placed before the court is insufficient to demonstrate appropriate industry on the respondents’ part, or otherwise should give the court pause to infer that the defaults in respect of which the present application is brought were a product of inexcusable carelessness. No doubt it is the case—as it would be in all examples of non-compliance (other those that are deliberate or a consequence of forces majeures)—that the Union’s default in the present case could have been avoided with greater care or attention to detail. To say so is to do no more than recognise the potential for error that attaches to the involvement of human actors in the Union’s affairs. It does not follow that the relief that is sought should be denied on that basis.

43    I am also not inclined to accept DHL’s criticisms of the evidence that the Union advanced. It was put that that evidence was revealing for what it didn’t say. There was, for example, almost nothing in the way of detail about the discussions that took place on Friday, 25 and Monday, 28 June: very little if anything about what actual instructions were given about what by whom and to whom. The evidence did not rise beyond generalised statements about discussions concerning the need to collate what the respondents were ordered to deliver and there was no evidence about any steps that took place over the course of the intervening weekend.

44    Those criticisms are not without some force; but I am not persuaded that the evidence on the whole paints quite the picture of indifference at which counsel for DHL subtly hinted. On the contrary, it is plain enough that, after the June Orders were made (late in the day on Thursday, 24 June 2021), the Union and its officials were quick to action. Processes were rapidly adopted to identify, collate and deal with (by redaction or otherwise) a volume of material that the June Orders contemplated. That the particulars of those processes might more fulsomely have been addressed in the evidence is of little moment. It is clear enough that discussions took place and that officials were tasked with the collation and addressing of the material to which the June Orders related. The result—achieved, as it was, amid tight timeframes and the looming spectre of pandemic-related restrictions on people’s movement throughout Sydney (where the activities were focused)—was, perhaps unsurprisingly, an environment of some anxiety for at least some of those involved.

45    I am not persuaded that the circumstances to which the evidence points (directly or otherwise) here accumulate to a point where the defaults that animate the present application should be understood to have been a product of rank carelessness or inattention at a level sufficient to disqualify the Union from the relief that is now sought. The most that might be said is that the Union could have done more; but that is always something that could be said. In light of other circumstances, that reality is not reason enough to deny the relief for which the Union moves.

46    Those other circumstances include the fact that the Union itself has been the source of evidence about the non-compliance that has occurred. Having detected it, it has taken prompt and appropriate steps to rectify it, and has involved DHL to that end. It has not made any attempt to disguise or hide from it, as lesser litigants might. The defaults that have occurred, whilst regrettable, have not visited any material detriment upon DHL. There is no suggestion, for example, that any of what ought to have been but wasn’t delivered or deleted was used in any way.

47    Moreover, the consequences for the Union if the proposed amendments to the June Orders are not made are significant. Having accepted (as it must) that it failed fully to comply with the June Orders, it is now precluded by s 413(5) of the FW Act from organising protected industrial action in support of the position for which it has bargained. There can be no doubt that that is a heavy price to pay, both for it and, potentially at least, for those on whose behalf it has bargained. Nor is there any realistic answer to the contention that the bargaining that has transpired to date is now at the point where protected industrial action is fast becoming (or perhaps already is) the Union’s last shot in the proverbial locker. The fact that bargaining has completed successfully in respect of many of DHL’s sites is of no moment. There remain sites at which it is ongoing and in respect of which protected industrial action is in prospect.

48    Those observations stated, it might also be borne in mind that, through no fault of its own, DHL has been deprived of its entitlement to full compliance with the June Orders. What has occurred should not have occurred and DHL cannot be held in the slightest way responsible for it. Its submission that the Union should pay, in respect of its defaults, the price for which the FW Act provides is orthodox.

49    Nonetheless, on balance, I consider that to leave the orders in their present form—and, thus, to deprive the Union and its members of access to protected industrial action in the circumstances here prevailing—would be to visit an injustice that the court should prefer to avoid. Appreciating the nature of the power that is invoked (and the rare circumstances in which it should be deployed), I consider that the interests of justice in this case warrant amendments that serve to regularise nunc pro tunc the respondents’ efforts to comply with the June Orders.

50    That leaves for consideration proposed order 7A. It does not serve to regularise any of the respondents’ conduct. Instead, it is proposed in order to assist the respondents’ solicitors in providing advice to their clients as to the action that has been brought against them. By permitting them to retain copies of material delivered up in compliance with the June Orders, it is said that the respondents’ solicitors will be better placed to advise their clients as to the merits of the action brought against them.

51    There is something to that. Plainly enough, it will be difficult for the respondents to know whether the information that they obtained from DHL’s employees was relevantly confidential (or otherwise obtained contrary to the requirements of the Corporations Act 2001 (Cth)), as the claim against them alleges, unless they know with some precision what information was harvested. If they are not able to retain copies of information produced as part of their ongoing obligations under the June Orders, they will likely be able to obtain them (perhaps with some limitations) via discovery.

52    That, though, is the better process to be followed. At present, there is no suggestion that there remains—and, given the circumstances, one would very much hope that there does not remain—any additional material within the respondents’ possession, custody or power that ought to have been delivered up pursuant to the June Orders. That being so, there is no practical use to which proposed order 7A might be put. In the absence of some value of that kind, I am not persuaded that the interests of justice warrant the insertion of the proposed order. Debates about access to material for the purposes of the litigation can be reserved for consideration at a later time (should that be necessary).

Conclusion

53    There was no material debate about the form of the orders that the Union proposed. With minor exceptions (explored in the reasons above), I will make orders in that form. The Union proposes that the costs of and associated with its interlocutory application should be reserved. That is appropriate.

Associate:

Dated:    12 November 2021