Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mainteck Pty Ltd [2017] FCA 301

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mainteck Pty Ltd [2017] FCA 301

The CEPU's construction of cl 22(c) was reasonably arguable, so it reasonably believed it may have a right to relief. Although the CEPU had not made reasonable inquiries for documents evidencing the subcontractor employees' own terms and conditions because such documents could be obtained from identified union members, it satisfied r 7.23 in relation to a narrower class of documents held by Mainteck. The appropriate discovery was limited to documents evidencing steps taken by Mainteck to ensure that ARA Electrical Engineering Services Pty Ltd employees received the same terms and conditions as if employed under the Agreement, confined to documents created between 1 March 2015 and 1 April...

Jurisdiction
Australia
Judgment Date
08 March 2017
Procedural Posture
Application for Preliminary Discovery Under R 7.23 of the Federal Court Rules 2011 (cth) / Ex Tempore Reasons for Judgment and Orders
Outcome
Application allowed in part; limited preliminary discovery ordered, with no order as to costs.
Legal Topics
['preliminary Discovery' 'prospective Respondent' 'fair Work Act Contravention' 'enterprise Agreement Compliance' "subcontractor Employees' Terms and Conditions"]
['industrial Law' 'employment and Industrial Relations'] ['preliminary Discovery' 'prospective Respondent' 'fair Work Act Contravention' 'enterprise Agreement Compliance' "subcontractor Employees' Terms and Conditions"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Preliminary Discovery Under R 7.23 of the Federal Court Rules 2011 (cth) / Ex Tempore Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the prospective applicant reasonably believed it may have a right to obtain relief from Mainteck for contravention of s 50 of the Fair Work Act 2009 (Cth) based on alleged non-compliance with cl 22(c) of the Mainteck Pty Ltd Grosvenor Project Union Greenfields Agreement 2012.' 'Whether the prospective applicant had made reasonable inquiries and still lacked sufficient information to decide whether to commence proceedings.' 'Whether Mainteck had or was likely to have documents directly relevant to whether the prospective applicant had a right to obtain relief, and whether inspection would assist the decision whether to sue.' 'Whether the categories of documents sought were too broad or unnecessary.']

Ratio Decidendi

The CEPU's construction of cl 22(c) was reasonably arguable, so it reasonably believed it may have a right to relief. Although the CEPU had not made reasonable inquiries for documents evidencing the subcontractor employees' own terms and conditions because such documents could be obtained from identified union members, it satisfied r 7.23 in relation to a narrower class of documents held by Mainteck. The appropriate discovery was limited to documents evidencing steps taken by Mainteck to ensure that ARA Electrical Engineering Services Pty Ltd employees received the same terms and conditions as if employed under the Agreement, confined to documents created between 1 March 2015 and 1 April...

Court Disposition

Application allowed in part; limited preliminary discovery ordered, with no order as to costs.

Orders

  • ['The prospective respondent give discovery of any documents in its control brought into existence between 1 March 2015 and 1 April 2016 evidencing any steps taken by the prospective respondent to ensure that employees of ARA Electrical Engineering Services Pty Ltd received the same terms and conditions as if they...