"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Acciona M&E Pty Ltd T/A Acciona Mechanical & Electrical [2024] FWC 2780

1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Acciona M&E Pty Ltd T/A Acciona Mechanical & Electrical (C2024/2664) COMMISSIONER PERICA MELBOURNE, 4 OCTOBER 2024 Application to set aside an order to produce documents [1] On 30 April 2024, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed an application under s.739 to deal with a dispute under clause 17, the dispute settlement procedure in John Beever (Aust.) Pty. Limited Victorian Workshop and Site Enterprise Agreement 2021- 2025 (the Agreement). The dispute concerns the entitlement to superannuation contributions during long service leave under clause 16 of the Agreement. [2] The employer in this dispute, Acciona M&E Pty Ltd (Acciona) has made a jurisdictional objection. It argues under the dispute settlement procedure, the AMWU cannot bring a dispute to the Commission in its own name. It also argues the Commission should not amend the proceeding to substitute the name of its delegate at Acciona, Mr. Mario Pantalleresco, for the AMWU. It argues the dispute was initiated to further the interests of the AMWU rather than to agitate a “concern” Mr. Pantalleresco had arising out of his employment. [3] There have been a number of procedural steps in relation to the jurisdictional objection including the filing by the AMWU of a witness statement of Mr. Pantalleresco dated 20 August 2024. [4] On 30 August 2024, following receipt of that witness statement, Acciona applied for an order under s 590(2)(c) of the Act for the AMWU to produce documents. The classes of documents outlined in the application were: “1. All records of communications that passed between the AMWU and Mario Pantalleresco during the period 23 February 2024 and 30 April 2024 (inclusive) regarding the subject matter of the dispute application filed by the AMWU in this proceeding. (“Class One”) 2. All records of Mario Pantalleresco's registration for, and attendance at, the AMWU delegates' forum held on or about 20 March 2024 (referred to in paragraph 5 of the [2024] FWC 2780 DECISION -- 1 of 17 -- [2024] FWC 2780 2 Witness Statement of Mario Pantalleresco dated 20 August 2024) (the Forum). (“Class Two”) 3. All records of the content communicated to delegates at the Forum relating to: a. the decision in Programmed Facility Management Pty Ltd v AMWU [2024] FWCFB 100; and b. superannuation contributions (“Class Three”). 4. In this order, "records" refers to all information, including but not limited to: a. a. all originals and copies, whether recorded on paper, electronically or in any other manner of correspondence; b. b. text messages, emails and messages transmitted electronically (including via social media).” [5] On 5 September 2024, the AMWU filed an application to set aside the orders to produce on the basis that the documents the subject of the order were of no apparent relevance and were subject to “privilege”. It also claimed the production of the documents would be oppressive of the AMWU and Mr. Pantalleresco and would constitute a fishing expedition. [6] A mention was conducted on 6 September 2024. At the mention, it was agreed the AMWU would file the relevant documents with the Commission for it to assess whether the documents should be produced. After it had examined the documents, the Commission would issue a written decision on whether some or all of the documents should be produced to Acciona. [7] On 10 September 2024, ahead of the material being provided to the Commission, Acciona filed written submissions in response to the AMWU’s 5 September 2024 submissions. [8] On the late afternoon of 10 September 2024, the AMWU filed a bundle of documents in the Commission for its assessment. AMWU OBJECTIONS TO THE PRODUCTION OF DOCUMENTS Relevance AMWU’s submissions [9] The AMWU argues the records sought are: • Not relevant to the construction and application of the dispute over the meaning of clause 16 in the Agreement. • Not relevant to the jurisdictional objection which relies on a textual construction of clause 17 of the agreement that a party to the dispute may only be a particular employee with a concern or dispute. It argues “none of the records requested could be capable of affecting or supporting the proper construction of cl 17 of the Agreement”. -- 2 of 17 -- [2024] FWC 2780 3 • Not relevant to the amendment application: “It is not controversial that Mr. Pantalleresco is an employee to which the Agreement applies. It is not in dispute that Mr. Pantalleresco raised the subject matter of the Dispute Application with relevant officers of Acciona. There is no evidence to contradict the fact that Acciona subsequently failed to refer the matter to more senior management. And it is plainly obvious that the AMWU and Mr. Pantalleresco dispute Acciona’s construction and application of cl 16 of the Agreement.” • The records requested “are not capable of affecting any finding on these matters.” [10] The AMWU also argues, even if Mr. Pantalleresco received assistance (or information) from his union in enquiring about his entitlements under the Agreement, this would not prevent him from pursuing a dispute under cl 17 of the Agreement. There is no requirement in cl 17 that an employee must become ‘independently aware’ of matters affecting his or her entitlements before they can avail themselves of the process under the clause for resolution of the dispute. [11] The AMWU concedes the evidence of Mr. Pantalleresco’s attendance and registration to the AMWU’s delegates’ forum might be relevant to whether he attended the forum. However, it is not conceded that his attendance (or otherwise) is relevant to the dispute application, jurisdictional objection or the amendment application. Acciona’s submissions Acciona argues: • The documents would assist the Commission to determine the jurisdictional objection. The Commission must necessarily scrutinise the conduct of Mr. Pantalleresco, including the communications that passed between the AMWU and Mr. Pantalleresco, the content of those communications, who initiated those communications, and the timing of those communications. Engaging in that discrete task will, in an efficient manner, reveal whether the AMWU’s assertion is accurate. • The Commission is not materially assisted in this task based on the evidence filed by the AMWU to date. That material, in combination with the other evidence submitted by the AMWU, makes clear that there was dialogue between Mr. Pantalleresco and the AMWU. However, because they show nothing more than certain emails being forwarded to the AMWU, it is not clear whether Mr. Pantalleresco was acting on his own behalf or acting on behalf of the AMWU. • The documents in Class Three will assist the Commission and Acciona to test the evidence contained in Mr. Pantalleresco's witness statement dated 20 August 2024 regarding that event. Given the only persons who can produce documents regarding Mr. Pantalleresco's attendance at that event, and what was communicated by the AMWU to Mr. Pantalleresco about matters relating to the subject matter of the dispute raised by the AMWU, are Mr. Pantalleresco and the AMWU, it is entirely appropriate that the AMWU (as the organisation that instituted this proceeding) be required to produce documents which can assist the Commission to fully assess those matters. -- 3 of 17 -- [2024] FWC 2780 4 Fishing [12] The AMWU argues the request amounts to a fishing expedition “to find out if there is any case at all instead of obtaining evidence to support its existing case”. [13] Acciona argues the documents requested are “clearly relevant” and it “was careful to ensure the categories of documents sought were limited to matters that would properly assist the Commission in the discharge of its functions”. Acciona’s case “is and has always been that Mr. Pantalleresco was acting in his capacity as a delegate and not on his own behalf”. Oppression AMWU submissions [14] The AMWU argues the production of the documents would be oppressive in terms of the impact on it and the broader impact on the rights of union delegates and members. It contends Acciona’s request will undermine the confidence of union members to communicate and seek advice from their union. The broad scope of the order granted by the Commission “is oppressive in terms of its impact on the recipient” relying on the test enunciated by Collier J of the Federal Court in Tamawood.1 [15] The AMWU also argues it would be oppressive in terms of Mr. Pantalleresco’s privacy and his right to perform his duties as a union delegate. It contends the order would also be oppressive in its impact on the AMWU and the rights of its members more broadly by violating their ability to communicate with the union without fear of employer intrusion. [16] Further, to uphold the order is a “dangerous precedent in which employers could undermine the role of the union by seeking orders to produce any and all communications between members and union officials if upheld. Union delegates and members would be unable to freely seek support if a precedent is established in which an employer can access communications regarding their workplace rights to build a case”. It would have an oppressive impact on the AMWU’s ability to communicate openly with its members. Acciona’s submissions [17] Acciona argues the AMWU oppression objection based on the alleged impact on the AMWU and the “the broader impact on the rights of union delegates and members of being required to comply with the Order” is “entirely without merit”. [18] It argues the AMWU is a “large organisation that routinely brings dispute applications in the Commission and otherwise engages in litigation”. The Order which requires the production of such a limited amount of material and could not possibly have any meaningful adverse impact on the AMWU. [19] Acciona also argues that insofar as the AMWU is “suggesting” it would be oppressive by reason of privilege, that should be rejected. -- 4 of 17 -- [2024] FWC 2780 5 [20] Further, the AMWU “assertion” that it is concerned that compliance will undermine the confidence of members to communicate and seek advice is a “bald assertion” in the circumstances of the “restricted, specific and limited” categories of documents. [21] Acciona refutes the argument that compliance with the Order will undermine the confidence of members to communicate and seek advice from the AMWU. That is a bald assertion in circumstances where: • the Order is restricted to specific and limited categories of documents that go to the heart of Acciona's jurisdictional objection; • the jurisdictional objection only arises because of a forensic decision by the AMWU to bring this proceeding itself; • the AMWU has sought to tender evidence about some of Mr. Pantalleresco’s communications with the AMWU. It argues I will need to explore the full extent of Mr. Pantalleresco's communications with the AMWU. According to Acciona, I will be assisted having access to all records of communications that passed between the AMWU and Mr. Pantalleresco about the subject matter of the present proceeding, in addition to cross-examination of Mr. Pantalleresco. Privilege AMWU Submissions [22] The AMWU argues the documents sought under the order are subject to the forms of legal professional privilege known as advice privilege and litigation privilege. Upholding legal privilege in this matter is of public interest to unions and their members broadly. [23] It argues that Mr. Pantalleresco’s communications with the union, particularly SMS messages and emails between himself, Mr. Luke Souvatzis and Mr. Stephen Fodrocy, were used to seek advice regarding potential legal proceedings surrounding clause 16 of the Agreement. Mr. Pantalleresco had sought this information following the announcement of the Programmed decision at the forum. It relies on the reasoning of Andrews SPJ in Packer v Deputy Commissioner of Taxation.2 [24] The first limb of the test in Packer outlines the nature of communications to which professional legal privilege will apply. Professional privilege applies to a solicitor acting in their professional capacity advising clients. Professional privilege acts to serve the privacy of clients seeking advice in their individual and overall interest. Andrews SPJ stipulates at [279]: “The importance of preserving the public interest involved in legal professional privilege has been stressed……and it calls for protection of confidentiality of communication between solicitor and client in the giving and seeking of advice.” [25] The AMWU argues their delegates’ confidentiality and the rights of union members are of particular importance. If the order is upheld, employers will be able to erode protections -- 5 of 17 -- [2024] FWC 2780 6 surrounding confidentiality for union members seeking advice. Legal professional privilege is integral to navigating power imbalances between union members and their employers. [26] The AMWU also argues the communications would also be subject to what is often described as “litigation privilege” in that they were prepared for the purposes of litigation. It cites authority for the proposition that the “general rule is at least there must be a real prospect of litigation, as distinct from a mere possibility but it does not have to be more likely than not”. [27] Mr. Pantalleresco sought advice from the AMWU regarding his legal standing under clause 16 of the Agreement. It is reasonable to assume that escalation to the Commission may occur because of the dispute pursuant to clause 17 of the Agreement. Mr. Pantalleresco, his representatives and third parties including Mr. Souvatzis should assume the safeguard of legal privilege in the understanding the matter could be escalated. [28] It argues that communications distributed from the Delegate Forum are protected by legal professional privilege. [29] In the alternative, the AMWU submits the order should be dismissed as the materials should be considered privileged on the grounds of confidentiality and the public interest. Acciona’s submission on privilege [30] Acciona argues there is no basis for the Commission to be satisfied that any of the communications that passed between the AMWU and Mr. Pantalleresco were the subject of legal advice privilege or litigation privilege. The AMWU has not identified who purportedly provided legal advice or legal services to Mr. Pantalleresco, or whether that person held a practising certificate at the relevant time. Acciona’s submissions on Commission authorities concerning orders to produce internal delibarations on industrial strategy [31] During the mention hearing, I raised the decision of Munro J in Clerks (Alcoa of Australia – Other than Mining and Refining) Consolidated Award 19853 (the Alcoa Clerks decision) where his Honour made findings in relation to the “sheltering” of “internal deliberations in industrial relations matters”. [32] Acciona notes the AMWU had not sought to object on the basis of the Alcoa Clerks decision. Acciona “presumes” that the Commission “turned his mind to the line of authority that has fallen from [Alcoa Clerks] and determined it was not applicable or did not otherwise prevent the Order being made”. [33] It then quotes the decision of Watson SDP in Health Services Union v. Austin Health & others that the Commission “will not in normal circumstances allow the investigation of deliberative processes leading to tactical decisions taken”. [34] It also relies on Clermont Coal Pty Ltd v Troy Brown & Ors,4 which deals with the Commission’s approach to ordering production of documents that reveal internal deliberations relating to policy and industrial strategy it quotes the following excerpt from that case: -- 6 of 17 -- [2024] FWC 2780 7 “… [T]his Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced…” [35] Acciona submits this line of authorities emphasises there is no absolute rule against the production of deliberations of industrial strategy and the disclosure of documents that fall within this class “must be balanced against the consideration of whether they constitute evidence of important issues of fact”. [36] It argues the reasons I should give more weight to the relevance of these documents over any disclosure of deliberations of industrial strategy because: “The AMWU's position in this proceeding is that Mr. Pantalleresco was, at the relevant times, acting in his capacity as an employee and that at some point (the timing of which is not clear) the AMWU began to represent Mr. Pantalleresco. If that proposition is true, then the contents of communications between Mr. Pantalleresco and the AMWU could not reveal deliberations in respect of industrial strategy, policy or tactics simply because Mr. Pantalleresco was not conferring with the AMWU in his capacity as a delegate. Rather, he was seeking assistance from the AMWU in his personal capacity as an employee of Acciona.” [37] To the contrary, Acciona argues if the Commission were to find, upon review of the documents, that those documents did pertain to the AMWU's deliberations regarding its policy and tactics, including in respect of the Programmed decision and the implications of that decision, then that would only serve to: “(a) support Acciona's contention that Mr. Pantalleresco was acting in his capacity as a delegate (and not as a member seeking assistance in respect of a personal employment issue); and (b) highlight the relevance of those documents to the determination of Acciona's jurisdictional objection.” RELEVANT LAW AND APPROACH Power to compel production of documents [38] Sections 589 and 590 empower the Commission to exercise discretionary powers in determining the procedure to be followed in matters before it and how it informs itself in relation to those matters. The power of the Commission under s 590(1) to “inform itself to any matter before it in such a matter which it considers appropriate”, which under s 590(2)(c) includes requiring production of copies of documents and records to the Commission, which is expressed in “very broad terms.”5 Principles to be applied -- 7 of 17 -- [2024] FWC 2780 8 [39] In exercising its power to compel production of documents, the Commission has applied the ten principles articulated by Collier J in Tamawood Ltd v. Habitare Developments Pty Ltd.6 I rely on those principles but do not rehearse them here. The subject of a notice to produce documents may object on various grounds including (amongst other things) that they contain information that is confidential;7 they are commercially sensitive or legally privileged;8 that are not relevant; producing the documents involves an unwarranted intrusion into the responding parties privacy;9 and the requesting party is on a fishing exhibition or because it would be too onerous or oppressive to comply with the order.10 [40] The exercise of discretion in relation to notices to produce was described by Munro J in the Alcoa Clerks as:11 “…Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon particular facts of the case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, the public interest in the due administration of justice and ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases” Process for considering the objections [41] Paragraph 41 of the Fair Work Commission’s Practice Note: Orders to attend & orders to produce12 states: “On receipt of a request to have an order be set aside or varied, the Commission may list the matter for conference or hearing, or may make a decision based on written submissions…” [42] Acciona put to me, and I accept, that I should follow the orthodox procedure to produce documents subject to a subpoena in the Courts. Where the responding party has made objections to their production, the documents are received by the Court, the document are then examined by the Court and a determination is made whether the documents should be produced. EXAMINATION OF THE DOCUMENTS [43] I have examined the documents. No table of the documents has been produced by the AMWU to specify which objections are taken against particular documents. On my analysis the documents produced to the Commission fall into four categories: • E-mails from 2 April 2024 to 22 April 2024 between Mr. Pantalleresco and Mr. Souvatzis, his organiser, and Mr. Fodrocy of the AMWU (these documents would fall within Class One). • Text messages between Mr. Pantalleresco and Mr. Souvatzis from 23 February 2024 to 22 April 2024 that fall within Class One. • A document that appears to relate to the delegates attendance at the 2024 Delegates Training Forum (which would fall within Class Two). -- 8 of 17 -- [2024] FWC 2780 9 [44] There are no documents forwarded to me that fit within Class Three. A document which appears to be slides from a power point presentation concerning the 2024 Delegate Training Forum has no slides referring to the Programmed decision. CONSIDERATION OF THE GROUNDS OF OBJECTION [45] Now that I have examined the documents, I will address each of the objections in turn. Relevance [46] This proceeding is an application brought by the AMWU for resolution of a dispute under the dispute settlement procedure in clause 17 in the John Beever (Australia) Limited Victorian Workshop and Site Enterprise Agreement 2021 to 2025. Acciona raised a jurisdictional objection on the basis that there is no capacity of the AMWU to bring a dispute as a party principal in its own name. The AMWU argues it has the right to bring a dispute settlement proceeding under the terms of the Agreement. [47] In the course of the proceeding, I raised my capacity under s 586 to “allow a correction or amendment” to any application. The AMWU has made an application for such an amendment to substitute the name of the workplace delegate, Mr. Pantalleresco, for the AMWU. [48] Acciona argues I should not exercise power to amend the proceeding because the AMWU “has not established it is representing an affected employee and is authorised to do so”. It argues the application “does not represent a genuine dispute brought by the AMWU in its representative capacity”. Acciona contends Mr. Pantalleresco raised the matter in his capacity as a delegate (as to further a broader industrial strategy of the AMWU) rather than in his individual capacity as an employee “with a concern or a dispute” under the dispute settlement procedure. [49] This is the context in which the AMWU has filed the witness statement of Pantalleresco dated 20 August 2024. The filing of Mr. Pantalleresco’s statement gave rise to the application for a notice to produce and the order I made on 5 September 2024 to which the AMWU objects. [50] The threshold for relevance in the issue of an order to produce is more capacious than in other contexts. In Master Builders’ Association (NSW) v Plumbers and Gasfitters Employees’ Union of Australia (No 1),13 Gray J of the Federal Court observed that “the test of relevance must necessarily be a generous one”. In Boase v Axis International Management Pty Ltd (No 3),14 Beech J of the Supreme Court of Western Australia referred to the test of apparent relevance being “a low threshold”. [51] Given the matters in issue in this proceeding and based on my examination of the bundle of documents which fall within Class One and Class Two, I find the documents pass the test of “apparent relevance”. It was on that basis I issued the order to produce the documents on 30 August 2024. It follows a relevance objection to the production of these documents is not sustained. Fishing -- 9 of 17 -- [2024] FWC 2780 10 [52] The AMWU contends the order to produce is a fishing expedition because “its request is to find out if there is any case at all instead of obtaining evidence to support its existing case”. It relies on a statement by Spencer C in Faulkner v. BHP Coal Ltd15 that “orders for production of documents should not be used as a tool to substantiate a valid reason after the fact”. It argues Acciona is seeking to determine whether there is any alternative ground on which to object to the application and or the amended application. [53] The facts in Faulker involved an order to produce telephone records of an applicant in an unfair dismissal proceeding which Spencer C found was to substantiate a valid reason after the fact. There is no analogy here. In this case, the request to produce the documents was a consequence of the witness statement of Mr. Pantalleresco, which the AMWU filed in this proceeding. [54] The general law on production of documents through a subpoena establish that it cannot be used to discover whether a person has a case at all. I agree with Stone J in the Federal Court in Dorajay Pty Ltd v Aristocrat Leisure Limited16 that a contention that a subpoena constitutes ‘fishing’ essentially amounts to a submission that there is no legitimate forensic purpose supporting the documents sought. [55] As I understand, the jurisdictional objection of Acciona is that at the time of the initiation of this dispute, the AMWU was acting through Mr. Pantalleresco for broader industrial ends rather than to further an individual dispute. [56] After examining the documents, the documents could serve a forensic purpose in supporting its argument whether the dispute was initiated by the AMWU at the request of Mr. Pantalleresco in his capacity as a delegate of the AMWU rather than in his personal capacity as an employee of Acciona. It follows a fishing objection to the production of these documents is not sustained. Oppression [57] The AMWU argues the order to produce has an oppressive impact on it because production of documents undermines the confidence of members communicating with their union, it would interfere with their right to seek advice in private, and “violates” their ability to communicate with its members “without fear of intrusion”. It contends it is oppressive in terms of its effect on Mr. Pantalleresco’s privacy and right to perform his duties as a delegate. [58] Acciona argues the oppression ground contended by the AMWU is “entirely without merit”. In answer to the argument that compulsion to produce the documents undermines confidence of members to communicate and seek advice from their union, Acciona argues the documents requested are limited, the objection arises because of a forensic decision the AMWU made to bring the proceeding, and it is “cherry-picking” some of the communications which are disclosed in Mr. Pantalleresco’s statement. [59] An oppression objection extends beyond circumstances related to the burdensome volume of documents to be produced. What is involved is a balancing of the respective public and private interests.17 -- 10 of 17 -- [2024] FWC 2780 11 [60] The burden of producing the documents must not, in all the circumstances, be oppressive in terms of its impact on the recipient. As Sackville J said Seven Network Ltd v News Ltd (No 5) 18 in determining whether an order to produce documents is oppressive the following comments of Deane and Gaudron JJ in Hamilton v Oades are apposite:19 “The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”.” [61] There are compelling arguments the 30 August order may have an oppressive impact on Mr. Pantalleresco and the AMWU. I accept the argument it may not be in the public interest that communications between industrial staff of unions and their delegates to be disclosed based on the chilling effect that such an order might have on these communications which are made in private. Privilege [62] The AMWU submits the documents in Class One and Class Three are protected by legal professional privilege in the form of advice and litigation privilege. It alternatively argues that those communications should be “considered privileged on the grounds of confidentiality and public interest”. [63] Acciona argues that “there is no basis to be satisfied that any communications that passed between the AMWU and Mr. Pantalleresco were subject to legal advice privilege or litigation privilege”. It contends the AMWU has not identified who provided legal advice or legal services to Mr. Pantalleresco or whether that person had a practising certificate. [64] Acciona also notes the AMWU has not sought to object on that basis of “sheltering” from production of documents of internal deliberations in industrial relations matters based on the statements of Munro J in Alcoa Clerks. In subsequent authorities the Commission has found there is no absolute privilege against the production of these kinds of documents and the concerns about disclosure must be balanced against a consideration whether they constitute evidence relevant to “important issues of fact”. [65] In APESMA v Great Southern Energy,20 a Full Bench recently considered legal professional privilege and the protection the Commission has given to internal deliberations of parties in industrial relations matters deriving from the decision of Munro J in Alcoa Clerks. Great Southern Energy involved an order to produce documents which would have included e- mails between a senior organiser and a delegate of the union and a power point slide which conveyed legal advice from external lawyers. The APESMA objected on the basis that the document was provided for the dominant purpose of providing legal advice. -- 11 of 17 -- [2024] FWC 2780 12 [66] The Full Bench in Great Southern Energy adopted the analysis of the Full Bench in Stephen v Seahill Enterprises Pty Ltd 21 in relation to advice or litigation privilege22 and the nine principles outlined in that case concerning legal professional privilege23. I adopt those nine principles but do not rehearse them here. [67] The Full Bench went on:24 “It is clear …the assessment of whether legal professional privilege attaches to a document is clearly a question of fact to be determined on an objective basis, having regard to the evidence, the nature of the documents or communications and the parties’ submissions.” [68] The Full Bench then noted:25 “Staff members of unions (employers and employer organisations) engage in internal discussions and deliberations relating to industrial strategy and policy matters. There is no express statutory protection preventing the Commission from ordering the production of documents relating to those deliberations. However, the Commission and its predecessors have treated internal deliberations with caution.” [69] It went on to quote Munro J in Alcoa Clerks, Watson SDP in HSUA v. Austin Health and the Full Bench in Clermont Coal on disclosure of internal deliberations. The Full Bench in Great Southern Energy found at [41] and [42]: “The Relevant Parts of the email were in our view, the express confirmation (duplication) of the legal advice received by APESMA in direct contemplation of the present application. It was also conveyed as part of the internal deliberations and decision making of APEMA, and there was no indication that the advice set out the email was communicated more generally. That is, it was communicated only to one delegate as part of the leadership of APEMSA making decisions about the potential application and was not in any meaningful sense an element in the information process for members more generally associated with the employee votes. We considered that although perhaps not privileged in its own right, the Relevant Parts of the email fell within that category of documents about which the Commission should, in this particular case, exercise the kind of caution referred to in the authorities cited earlier. Further, given the limited nature of this communication, some of the other considerations attached to the PowerPoint Slide, did not apply.” [70] The AMWU has not met its onus of proving that legal professional privilege applies to these documents. I accept Acciona’s point that there is nothing in the material filed by the AMWU that establishes the person giving the advice has a practising certificate. The AMWU argument on legal professional privilege simpliciter must fail. [71] The approach of the Full Bench in Great Southern Energy, however, is instructive. It held although legal professional privilege had not been established, the Alcoa Clerk’s principles could nonetheless apply. It is clear from its material the AMWU is not only claiming legal -- 12 of 17 -- [2024] FWC 2780 13 professional privilege, it is also claiming the documents “should be considered privileged based on confidentiality and the public interest”. [72] Some of the text messages and all the e-mails in the documents that fall within Class One have been prepared for the purposes of giving advice to its delegate or in anticipation of a Commission proceeding. On my assessment, it is precisely the kind of documents that, if it had passed between Acciona’s solicitors and the management of Acciona, it would be protected from disclosure either through advice or litigation privilege. [73] There is nothing in the authorities to suggest advice between a member and officers and staff of a union cannot be regarded as ‘internal deliberations on industrial relations matters”. The reasons for the reluctance of the Commission to order production of broad industrial strategy documents applies equally to advice between a delegate and employees and officers of their union. [74] The rationale for legal professional privilege is to “promote an effective adversarial system by fostering candour and trust in the lawyer client relationship and by protecting the information of each party to adjudication from disclosure to the other side”.26 It would be passing strange in this jurisdiction if, for these policy reasons, private advice from an industrial officer or organiser to a delegate were not protected from disclosure in some circumstances. It would be equally strange if the reluctance the Commission has shown to disclosing internal strategy deliberations would not extend to advice in these circumstances. BALANCING THE FACTORS IN THE EXERCISE OF THE DISCRETION [75] I have found the documents are relevant and in the circumstances of this case, the documents sought cannot be categorised as fishing. [76] I do find compelling the objections of the AMWU based on oppression to its delegate and itself. The arguments based on privacy and the public interest are also completing. Although I have found the AMWU has not made out its claim for legal professional privilege, the approach of the Full Bench in Great Southern Energy suggests the reluctance to compel production of internal deliberations on industrial strategy should also be considered, noting that this reluctance is not an absolute rule. The e-mails and some of the text messages are made for the purposes of giving advice or in anticipation of a Commission proceeding. If these same documents had been prepared by a lawyer employed by an external law firm to Mr. Pantalleresco, they would be protected against disclosure. [77] I adopt the process referred to by Munro J in Alcoa Clerks27 in determining how I should exercise my discretion in this case. It is an exercise of judgement upon the particular facts. It requires a balance of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, the public interest in the due administration of justice and ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases. [78] I accept the production of some of the documents would be oppressive of both the AMWU and Mr. Pantalleresco. My examination reveals some of the text messages and the e- mail correspondence were created for the dominant purpose of providing advice to Mr. -- 13 of 17 -- [2024] FWC 2780 14 Pantalleresco or in anticipation of a Commission proceeding. It would interfere with his right to privacy and his right to perform his duties as a union delegate. The order would also be oppressive in its impact on the AMWU and the rights of its members more broadly by violating their ability to communicate with the union without fear of employer intrusion. It is not in the public interest for these documents to be disclosed for this reason. [79] The e-mails and some of the text messages are of a kind that the Commission has cautioned about disclosing. The Full Bench in Great Southern Energy considered both the claim of legal professional privilege and the reluctance the Commission has shown to the compelled production of documents that reveal internal deliberations of industrial strategy. Individual advice between a delegate and staff of a registered organisation could fall within this category. The logic of the cautionary approach of the Commission applies to both internal deliberations of grand strategy and to advice between a member and their registered organisation. [80] Acciona argues the AMWU has been selective in the documents it chose to reveal in the evidence, I will need to explore the full extent of Mr. Pantalleresco’s communications with the AMWU, and would be assisted by having access to all records of communications that passed between the AMWU and Mr. Pantalleresco about the subject matter of the present proceeding, in addition to the cross examination of Mr. Pantalleresco. [81] I have found the documents are relevant to the material facts, however, the forensic benefit in their production must be weighed against the reasonableness of the burdens I have found the order would impose on the AMWU and Mr. Pantalleresco, the invasion of Mr. Pantalleresco’s privacy in his communications with the AMWU, and the public interest of communications between employees and their unions being private. [82] I do not consider Acciona would be prevented from making its case on the jurisdictional objection if I vary the application to exclude those documents by which the AMWU provides advice to their member. Mr. Pantalleresco, the delegate and his organiser Mr. Souvatzis are available for cross examination in relation to the initiation of the dispute. [83] On the basis of the oppression to the AMWU and its delegate, the long-held view of the Commission that caution should be exercised in revealing internal deliberations in industrial relations, and the public interest in this jurisdiction against advice given by a registered organisations to their delegates being subject of examination by an employer outweigh any additional forensic benefit Acciona would receive by accessing these documents. CAN I VARY THE ORDER? [84] Acciona argues that I cannot vary the order I have made to produce the documents on the basis that the power to vary is only available where there is a change of circumstances, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise. It goes further and argues it is “improper” that I disturb the order. [85] If the position was as Acciona contends, it would limit the capacity of parties to object on legitimate grounds to the production of documents once an order is made. The orthodox methodology for the issue of subpoenas in the Courts is the subpoena is issued, the parties -- 14 of 17 -- [2024] FWC 2780 15 object and the Court considers whether the objections are made out on the basis of the examination of the documents. [86] The Commission’s own Practice note: orders to attend & orders to produce contemplates the capacity of responding parties requesting to have an order set aside or varied and for the Commission to conduct a hearing to determine the matter.28 [87] In those circumstances, I do not consider the fact I have made the order an impediment to the variation of the order. DISPOSITION AND VARIATION TO THE 30 AUGUST 2024 ORDER [88] For these reasons and based on my examination of the documents, I vary my 30 August order as follows. Variation of Order 1 [89] I vary Order 1 of my 30 August 2024 order as follows (the variation marked by italics): “All records of communications that passed between the AMWU and Mario Pantalleresco during the period 23 February 2024 and 30 April 2024 (inclusive) regarding the subject matter of the dispute application filed by the AMWU in this proceeding other than those produced for the purposes of providing advice to Mr. Pantalleresco or in anticipation of a Commission proceeding.” [90] All the e-mails forwarded to me and most of the text messages between Mr. Pantelleresco and Mr. Souvatzis fall within the excluded category except for the text messages between Mr. Pantalleresco and Mr. Souvatzis before 25 March 2024. I order those text messages should be filed and served on Acciona’s representatives and the Commission. No variation to Order 2 [91] I make no amendment to Order 2. There is only one document that falls within this category it appears to be from a spreadsheet indicating his attendance at the Delegates Forum. That document should be produced No documents fall within Order 3 [92] Based on my examination of the bundle of documents there no documents within this class. As no documents within this class have been forwarded to me, I cannot make an assessment whether the objections they claim in relation to this class have been made out. [93] The AMWU have forwarded what appears to be a PowerPoint presentation which merely refers to the speakers at the 2024 Delegates Forum. Nothing in this document refers to the Programmed Decision. I order that document be forwarded to Acciona and its legal representatives. -- 15 of 17 -- [2024] FWC 2780 16 [94] My Chambers will issue a notice of listing for a mention for the completion of the hearing of the jurisdictional objection. COMMISSIONER Appearances: Mr. Andrew Bonello on behalf of the Applicant. Mr. Dominic Fleeton of K&L Gates on behalf of the Respondent. Hearing details: 6 September 2024 Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR779992> 1 Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364. 2 [1985] Qd R 275, 25. 3 [1988] AIRC 391. 4 [2015] FWCFB 2460 5 Clermont Coal ibid at paragraph [19] 6 [2009] FCA 364 at paragraph [12]. Applied by Commissioner Spencer in Faulkner v. BHP Coal [2014] FWC 5134 at paragraph[18] 7 APESMA v. Airly Coal (1995). 8 APESMA v. Great Southern Energy [2024] FWCFB 266. 9 Faulkner v. BHP Coal [2014] FWC 5134. 10 [1988] AIRC 391. 11 Ibid 3 12 https://www.fwc.gov.au/hearings-decisions/practice-notes/practice-note-orders-attend-orders-produce at paragraph 41. -- 16 of 17 -- [2024] FWC 2780 17 13 (1987) 20 IR 387, 393. 14 [2012] WASC 498, [11]. 15 [2014] FWC 4966, [17]. 16 [2005] FCA 588, [34]. 17 See the decision of Gray J in Master Builders Association (NSW) v. Gasfitters Employee’s Union of Australia (No 1) (1987) 20 IR 387 at 390. 18 [2005] FCA 510, [12]. 19 (1989) 166 CLR 486, 502. 20 [2024] FWCFB 266. 21 [2021] FWCFB 2623. 22 Ibid [13]. 23 Ibid [16]. 24 Ibid [17]. 25 Ibid [18]. 26 McNicol4 Law of Privilege (1992, Law Book Company Limited, North Ryde) at p. 2 27 Alcoa Clerks 28 https://www.fwc.gov.au/hearings-decisions/practice-notes/practice-note-orders-attend-orders-produce at paragraphs 39 to 41. -- 17 of 17 --