Firefighters Prove Privilege is a Hot Commodity

19 May 2017

When it comes to employment litigation and discovery, the protection afforded privilege documents is a hot topic- at least it was in the recent Supreme Court scuffle between Volunteer Fire Brigades Victoria (“VFBV”) and Country Fire Authority (“CFA”).

After suffering repeated burns from 13 failed attempts to gain access to CFA communications about the proposed new enterprise agreement the VFBV have finally won further discovery of four internal CFA communications. The victory comes after the Supreme Court ruled the four communications were both relevant to the VFBV’s case and not covered by “without prejudice” privilege (“privilege”).

Although temperatures continue to run high, the decision ultimately shines a light on whether privilege applies to Fair Work Commission (“FWC”) proceedings.

In order to assess what documents the CFA would be obliged to produce, the Court was required to consider the application of s131 of the Evidence Act 2008 (Vic) (“the Act”) to FWC proceedings. Firstly, in order to establish whether s131 of the Act applied, the Court had to assess whether the FWC was “an Australian Court” and secondly whether s240 bargaining disputes before the FWC constituted “proceedings” under the Act.

Associate Justice Mary-Jane Ierodiaconou found the FWC fell within the scope of the Act’s definition of an Australian court as “a person or body authorised […] to hear, receive and examine evidence”. She also found that although the term “proceeding” was not defined in the Act, s240 applications to the FWC could be considered proceedings.

So far so good for the CFA; the FWC is a court and privilege can apply to s240 bargaining disputes. Where the CFA found themselves in hot water was over the extent that communications relating to their FWC dispute could be deemed privileged. The judge found that there is no overarching provision in the Fair Work Act indicating that s240 processes are without prejudice.

Ultimately privilege only extended to communications produced “in connection with” an attempt to negotiate a settlement.

Let the ruling be a lesson to all employers on the importance of understanding and employing “without prejudice” privilege. When push comes to shove the application of privilege may be your ultimate fire escape.

Timothy Ashton of Hentys Lawyers has over 30 years of experience in workers compensation, industrial relations and discrimination claims and proceedings, and works for a significant number of multi-national companies and household names. Please contact Timothy for advice by sending an email to hjk@hentys.com.au.