2024 WAIRC 00907
APPLICATIONS PURSUANT TO S 72A
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2024 WAIRC 00907

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL

HEARD
:
WEDNESDAY, 16 OCTOBER 2024

DELIVERED : THURSDAY, 17 OCTOBER 2024

FILE NO. : CICS 5 OF 2023

BETWEEN
:
WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES
APPLICANT

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
RESPONDENT

LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)
FIRST INTERVENOR

WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION
Second Intervenor

FILE NO. : CICS 8 OF 2023

BETWEEN
:
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
APPLICANT

AND

WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES
RESPONDENT

LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)
FIRST INTERVENOR

WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION
Second Intervenor

FILE NO. : CICS 9 OF 2023

BETWEEN
:
WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES
APPLICANT

AND

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
RESPONDENT

LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)
FIRST INTERVENOR

WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION
Second Intervenor

Catchwords : Industrial Law (WA) – Application for production of documents – Granted in part
Legislation : Industrial Relations Commission Regulations 2005 (WA) r 21
Result : Order issued
REPRESENTATION:

Counsel:
Applicant : Mr J Blackburn SC of counsel and with him Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees
Respondent : Mr O Fagir of counsel and with him Mr M Cox of counsel on behalf of the Construction, Forestry, Mining and Energy Union of Workers
FIRST INTERVENOR : MR K TRAINER AS AGENT ON BEHALF OF THE LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)
SECOND INTERVENOR : MR N ELLERY OF COUNSEL ON BEHALF OF THE WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION

Case(s) referred to in reasons:



Reasons for Decision

THE COMMISSION IN COURT SESSION
1 Towards the end of the proceedings on 16 October 2024, counsel for the CFMEU made an application for an order under reg 21 of the Industrial Relations Commission Regulations 2005 (WA) requiring the production of documents by each of the WASU and the WALGA in the following terms:
(a) all communications however described between the WASU and the WALGA concerning these proceedings or evidence given or expected to be given in these proceedings;
(b) all communications however described between the WASU and the LGRCEU concerning these proceedings or evidence given or expected to be given in these proceedings; and
(c) all communications however described between the WALGA and the LGRCEU concerning these proceedings or evidence given or expected to be given in these proceedings.
2 The basis for the application was an assertion of collusion between the WASU and the WALGA, said to be relevant to the question of whether the WASU should continue to be permitted to ask questions of WALGA witnesses. Secondly, it was said they are relevant or potentially relevant to the credit of the WALGA witnesses, as they may disclose whether evidence that has been given is being or has been prepared in collaboration with the cross-examiner. Thirdly, such documents are said to be relevant in relation to a submission that the CFMEU will ultimately make in these proceedings, that being that the WASU is unable or unwilling to effectively represent local government employees, as it is in a position of conflict due to its close collaboration with local government employers. The application does not extend to documents which have already been produced in these proceedings, or any that involve communications that the CFMEU is a party to.
3 The application was opposed by both the WASU and the WALGA. The WASU contended that such communications could go back many months and most, if not all of them, would be privileged in any event. The risk of further delay in the proceedings was also raised as a basis to resist the order for production. Furthermore, whether or not the WASU should continue to be permitted to ask questions of the WALGA witnesses ought to be assessed on a case by case basis, as has already been determined by the Commission in Court Session in an earlier interlocutory application. It was also contended that the grounds alleged in support of the application do not involve the LGRCEU, and there is no basis for an order against it, as was contended by the LGRCEU in its response to the application.
4 The WALGA submitted that such an application was inappropriate and disproportionate, and the question of cross-examination and the limits to be imposed has already been dealt with by the Commission in Court Session at the outset of these proceedings. The WALGA also submitted that the CFMEU request would be met by a claim for privilege, and there is a significant potential to disrupt the proceedings, which has already occurred thus far.
5 The apparent trigger for the application by the CFMEU was email communications between Ms Miller of the WALGA and Ms Harrison of the City of Wanneroo on 26 July 2024. This referred to evidence given by the LGRCEU some days earlier, concerning an incident at the City in 2021. Reference in the email is made to both the WALGA and the WASU wanting to ‘probe and clarify the matter’. The response received by the WALGA from the City of Wanneroo appears to then have been forwarded to the WASU or the WASU’s solicitors. The emails were sought to be put by the WASU to Ms Miller, a witness for the WALGA, in the proceedings in cross-examination.
6 The CFMEU contended that this gives rise to a grave concern as to the integrity of such evidence. The CFMEU submitted that despite the ruling of the Commission in Court Session at the outset of these proceedings, regarding cross-examination of witnesses, that a different position should now be adopted.
7 We have considered this matter overnight and have formed the following views. Firstly, we do not consider there is any basis on the evidence for an order for production of documents to be made involving the LGRCEU. Secondly, as to the WASU and the WALGA, we do not consider there is any basis for an order for production of documents of whatever kind in relation to the proceedings generally as, in our opinion, this is far too broad a request. It is to be expected that in the ordinary course, parties involved in proceedings will communicate about various aspects of the proceedings, including for the purpose of narrowing issues, conferring in relation to case management steps, and for settlement of the proceedings. Cooperation and courtesy is to be encouraged, not discouraged.
8 However, we do consider that there is a basis to make more limited orders in this matter, confined to such documents as relate to the evidence in the proceedings only. That is because we are satisfied such documents are relevant to the first and second issues identified by the CFMEU. We are doubtful that the documents are relevant to the third issue, the foreshadowed submission that WASU has a conflict due to its close collaboration with the WALGA. The CFMEU has not yet demonstrated why the WASU’s conduct of an aspect of these proceedings causes its ability to independently represent and advocate for it members in industrial matters is in any way compromised.
9 We are also very conscious of delay, given the three month delay which has already occurred in the conduct of these proceedings, no doubt causing additional time and costs to be incurred by the parties. We are not prepared to countenance any further delay given the Commission’s obligation to hear and determine matters before it with as much speed as the requirements of the Act and a proper consideration of the matter permit.
10 Having regard to what is before us we therefore propose to make the following orders:
(a) That as to the evidence that has been given or is to be given in these proceedings any documents passing between the WASU and the WALGA that relate to that evidence and which are not subject to a claim of legal professional privilege are to be produced by the WASU and the WALGA for inspection by the CFMEU by no later than 4.00 pm Friday, 18 October 2024.
(b) That any claim of legal professional privilege by either the WASU or the WALGA is to be the subject of affidavit evidence identifying by list the documents the subject of the claim of privilege, such affidavit to be put on by 4.00 pm Friday, 18 October 2024.
(c) That otherwise the proceedings will continue to be heard subject to:
(i) the WASU examination of the WALGA remaining witnesses is not to involve leading questions and is to be confined to matters arising in the witnesses’ evidence in chief;
(ii) the CFMEU being given leave to seek to recall any WALGA witness(es); and
(iii) there be liberty to apply on short notice.