1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Justin Corfield
(AB2014/1113)
COMMISSIONER BISSETT MELBOURNE, 21 JULY 2014
Application for de-identification of parties in an application for an order to stop bullying.
[1] The Fair Work Commission (the Commission) has received an application for anti-
bullying orders from Mr Justin Corfield (the Applicant) pursuant to s.789FC of the Fair Work
Act 2009 (the Act).
[2] The matter has been listed for hearing and directions have been issued for the filing of
submissions and witness statements by all parties.
[3] The Respondents (the named individual and the employer) have made an application
that the parties in the matter be de-identified pursuant to s.593(3)(c) of the Act. Prior to
making a decision on the application I sought the views of the Applicant and provided the
Respondents with an opportunity to reply to those submissions.
[4] In making the application the Respondents submit that the publication of the name of
the Applicant and Respondents in what is essentially a private and confidential matter will not
be conducive to good governance of the Respondent employer.
[5] The Applicant opposes the application. He says that the names of the parties have
already been identified in the daily hearing lists of the Commission on the two days when the
matter was previously listed. The Applicant says that an application involving allegations of
one staff member against another is not unique or unusual in Commission proceedings and
that, of itself, does not warrant de-identification.
[6] The Applicant submits that the matter is not ‘essentially a private matter’ and indicates
his intention to call evidence as to the knowledge of others to the matters.
[7] The Applicant submits that the Respondent has not shown that de-identification is
necessary ‘in the interests of justice.’ Further he says that the Respondent has not identified
how public access to any proceedings or decisions would not be conducive to good
governance of the organisation nor how any party might be prejudiced if the parties are
identified in the normal manner.
[2014] FWC 4887
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 4887
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[8] In reply the Respondent says that proceedings to date have been of the nature of
private conciliation. It seeks to suppress the names of the parties in respect of any hearing list
and published reason for decision.
[9] The Respondents submit that it is not unusual for the Commission to de-identify
parties to such proceedings.
[10] The Respondents also say that, even though others may have some knowledge of the
matters in dispute, this does not detract from the essentially private nature of the dispute
between the Applicant and the Respondents. Further, it says that the performance
management system of the Respondent (to which the application does, in part, relate) should
not be subject to public scrutiny. They argue that the performance management system of the
organisation is robust and should continue and if the application for orders is not successful,
the integrity of the system may well be compromised and confidence in the organisation
adversely effected.
[11] The Respondents submit that there is nothing untoward in the Commission balancing
the public interest against the parties’ private interests. It submits that it is not essential that
employment related matters be conducted in public and this is demonstrated by s.397 and
s.398 of the Act.
Consideration
[12] There have been some 27 decisions of the Commission issued with respect to
applications made pursuant to s.789FC of the Act. If decisions where an application has been
refused because the Applicant has failed to comply with the procedural requirements of the
Act are excluded there are 10 substantive decisions issued by the Commission in respect of
such applications. Six of these applications have had the parties ‘de-identified’ although none
give detailed reasons as to why this was done. It appears that de-identification was not a
contested matter.
[13] It is also the case that relatively few unfair dismissal decisions have the parties de-
identified.
[14] There are some matters before the Commission where the Commission must conduct
proceedings in private. These relate to conferences in respect of disputes involving a
contravention of the general protections of the Act (see s.368 and s.374 of the Act), whether
they involve a dismissal or not, and in respect of an application for relief from unfair
dismissal being dealt with by way of conference (s.398). Any other conference must be
conducted in private unless otherwise determined by the Member dealing with the matter
(s.592).
[15] That a conference is conducted in private does not mean that any ultimate decision
involving the parties will have the parties de-identified. For example, an extension of time
decision in relation to a general protections application involving a dismissal (s.365 of the
Act) will not have the parties de-identified even though any subsequent conference conducted
by the Commission will be conducted in private. That conferences are conducted in private is
no reason, per se, to de-identify the parties.
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[16] Whilst conferences are generally conducted in private this does not require, and it is
not the practice, that there is no public identification of the parties to the matter. In fact, a
perusal of the daily hearing list will indicate the names of parties to any number of matters
that are to be dealt with by way of a private conference.
[17] Anti-bullying applications are, by their nature, applications made in the context of an
on-going employment relationship. An anti-bullying application will be made whilst a person
is employed and the range of orders is directed to making the bullying stop in the context of
the continuation of the employment relationship. That is, an anti-bullying order cannot be
made once the employment relationship has ended.1 In this respect an application under
s.789FC is different to many other ‘individual’ applications made to the Commission (unfair
dismissal and general protections involving dismissal) where the employment relationship has
ended.
[18] An anti-bullying application will, in most circumstances, be made against a named
individual or group of individuals in a workplace. The employer will also be a party to the
proceedings.
[19] With respect to the conduct of hearings before the Commission, s.593 of the Act
states:
593 Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising
powers, except as provided by this Act.
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in
public, except as provided by subsection (3).
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC
holds if the FWC is satisfied that it is desirable to do so because of the confidential
nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses
of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some
or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the
hearing.
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(4) Subsection (3) does not apply to the publication of a submission made to the FWC
for consideration in an annual wage review (see subsection 289(2)).
[emphasis added]
[20] The presumption in s.593 is that a hearing will be conducted in public. This accords
with the ‘open justice’ principle. However, the Act does recognise that there are
circumstances when a hearing or part of a hearing may be conducted in private.
[21] The principle of open justice applies to the Commission just as much to the Courts.
Section 593 above is testament to this. There are, as has been identified above, some
legislative exceptions where they are some limitations. These exceptions, however, should not
be seen to distract from the application of the principal in general.
[22] The application of the open justice (or open court) principal was considered by Munro
J in Moncreiff Fabrications Labour Services Pty Ltd and Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union2 where he noted:
In a recent publication, The Australian Judiciary, Professors Enid Campbell and H.P.
Lee, the joint authors of the publication, devoted a chapter to the accountability of
Judges and the function of the concept of open hearings. They note that the general
rule of common law is that proceedings in a Court of justice must be conducted in
open Court. It is claimed that such a rule, described as “inveterate” and “immutable”,
has existed in England “for some centuries”.
Of course, and without quoting from the authors, the processes of this Commission are
not judicial processes. It is equally clear that the processes are quasi judicial. The
Commission’s function has long been associated with the recognition that our process
is akin to a judicial process. The authors note that McHugh J has referred to the
implication of open justice as an essential feature of the Federal judicial power.
According to Gaudron J, open and public inquiry is an aspect of the judicial process.
Such procedures have long been an aspect of the Commission’s processes. I have not
researched its statutory provenance but I assume it is at least a legacy of the
Commission’s antecedent, the Court of Conciliation and Arbitration.
At page 220 of the publication to which I have referred the authors continue, and this I
quote:
“The justification for a relatively strict adherence to the general rule of public
hearings has usually been based on one of two broad and related principles. In
the first place, it is asserted that the exposure of the judicial system to publicity
produces certain beneficial effects in the operation of the system. The dual
nature of this beneficial (also described as `cathartic’) effect was identified by
Bentham: `[P]ublicity is the very soul of justice. It is the keenest spur to
exertion and the surest of all guards against improbity.’ We believe that the
spur to exertion refers to the tendency of publicity to ensure the maintenance of
standards of formality, the conscientious performance of duties, and a certain
decorum of procedure. As Lord Widgery stated:
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The great virtue of having the public in our courts is that discipline
which the presence of the public imposes on the court itself. ...
[E]verybody is more careful about what they do, everybody tries just
that little bit harder.
Publicity constitutes a `guard against improbity’, in that exposure to public
scrutiny and criticism is said to create an environment in which abuses are less
able to flourish undetected. The proposition was stated by Lord Diplock thus:
`If the way that the courts behave cannot be hidden from the public ear and eye
this provides a safeguard against judicial arbitrariness or idiosyncrasy.’”3
[23] In that matter his Honour was considering the hearing of a matter ‘in chambers’.
Despite this different context, his observations remain apposite to the matter before me.
[24] In Day v Smidmore and others (No 2)4 (Smidmore) the New South Wales Industrial
Relations Commission in Court session was considering an application to suppress the names
of certain witnesses in a decision already issued. In deciding the matter the Court observed:
31 The test we are obliged to apply provides that the Court may exercise its
discretion to make any non-disclosure order if we are satisfied that it is desirable to do
so by reason of the confidential nature of any evidence or matter or for any other
reason. The application of that test must be approached on the basis that the legislature
intended to give the Court a much wider scope for exercising its discretion to make
non-disclosure orders than the common law test.
[25] The Court then said:
32 …we do not consider that it would ordinarily be desirable to make a non-
disclosure order only because a person was embarrassed or distressed by allegations
made in proceedings. The paramount consideration, in our opinion, remains the
principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to
protect persons from injury, hurt, embarrassment or distress would be inimical to the
ordinary rule that courts should conduct their proceedings “publicly and in open
view”: Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell
(1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]):
This rule has the virtue that the proceedings of every court are fully exposed to
public and professional scrutiny and criticism, without which abuses may
flourish undetected. Further, the public administration of justice tends to
maintain confidence in the integrity and independence of the courts. The fact
that courts of law are held openly and not in secret is an essential aspect of
their character.
33 As Kirby P observed in John Fairfax Group Pty Ltd (Receivers and Managers
Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142-143:
It has often been acknowledged that an unfortunate incident of the open
administration of justice is that embarrassing, damaging, and even dangerous
facts occasionally come to light. Such considerations have never been regarded
as a reason for the closure of courts, or the issue of suppression orders in their
[2014] FWC 4887
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various alternative forms … A significant reason for adhering to a stringent
principle, despite sympathy for those who suffer embarrassment, invasions of
privacy or even damage by publicity of their proceedings is that such interests
must be sacrificed to the greater public interest in adhering to an open system
of justice. Otherwise, powerful litigants may care to think that they can extract
from courts or prosecuting authorities protection greater than that enjoyed by
ordinary parties whose problems come before the courts and may be openly
reported.
[26] On the question of balancing considerations in deciding the grant of suppression
orders the Court said:
36 The decision whether to make non-disclosure orders involves a very fine and
difficult balance between a number of competing factors. Factors telling against the
exercise of the power to make the orders include, as we have observed, the paramount
consideration of open justice and that embarrassment, distress or damage by publicity
will not, of themselves, provide a sufficient basis for making such orders.
...
41 The factors in favour of granting the respondents’ application include the very
wide power granted to the Court to do so under s 164A(2). Secondly, there was the
approach of the appellant to the application, who indicated no opposition and that it
was a matter for the Court, subject to the protection of his costs. Next, there is the
unchallenged evidence... regarding the distress felt by certain persons at seeing their
names in the judgment linked to unsavoury allegations of a professional and personal
nature and the effect that might have on careers and the respondents’ business. This is
a particularly difficult consideration given our view that mere distress does not warrant
a non-disclosure order.
[27] In that matter the Court was considering its powers to make suppression orders under
the Industrial Relations Act 1996 (NSW) which provides:
164A Powers of Commission as to the disclosure of matters before the
Commission
(1) A non-disclosure order is any of the following orders:
(a) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that
identifies, or may lead to the identification of, any person (whether or not a
party to proceedings before the Commission or a witness summoned by, or
appearing before, the Commission)...
(2) The Commission in Court Session may make any non-disclosure order if it is
satisfied that it is desirable to do so by reason of the confidential nature of any
evidence or matter or for any other reason...
[emphasis added]
[2014] FWC 4887
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[28] The language of the provisions being considered by the Court is not substantively
different to s.593(3) of the Act. For this reason I find the reasoning of the Court persuasive
although I do note that in that matter the application was not contested.
[29] It is clear that there are a number of different types of orders that can be made by the
Commission pursuant to s.593 of the Act. Each of these will have a varying degree of effect
on the open justice principle as it applies to the Commission. These include an order
prohibiting who may be present during a hearing (so that a matter might essentially be heard
in private) to orders that restrict the names of parties or witnesses in a matter (as is sought in
this application). To this extent the application of the Respondents are within jurisdiction of
the Commission. An order to de-identify parties to a matter is considered the least adverse to
the maintenance of open justice.
[30] In deciding whether or not to grant the application of the Respondents it is necessary
that I balance the open justice principle against the effects of identification on the on-going
employment relationship that between the Applicant and the Respondent employer and any
embarrassment or distress felt by the Respondents in being identified.
[31] I am, in this case, aware of the identification of the Respondent employer and can
appreciate the concerns it has expressed in relation to the public disclosure of its name in the
context of what is, in some respects, a matter relating to performance management (on the
Respondent employer’s view).
[32] It is undoubtedly true that the Respondents would prefer that their details not be made
public. It is likely that this would be the preference of many parties in matters before the
Commission. That it is the preference of the parties or that there may be some unwanted
scrutiny because of the identification of the parties is not a basis to conclude that the parties
should be de-identified. It seems to me that there is no harm, apart perhaps from some
embarrassment to the Respondent employer, which will come from the identification of the
parties. As was explained in Smidmore, mere embarrassment, distress or damage by publicity
is not a sufficient basis to grant such an application. Further, I am not convinced at this stage
that the airing of aspects of the Respondent employer’s performance management system
should adversely affect the integrity of that system. It seems likely that any scrutiny, should
the system be robust, may lead to greater confidence in it.
[33] I note that any identification in relation to the application will, up until the time of the
hearing, be limited to the Applicant. The Applicant opposes this application and therefore, it
can be assumed, has no objection to his details being identified. The decision I have reached
on this application should not be seen as giving the Applicant permission to publicly identify
the Respondents to his application. Any such action would not be viewed favourably by the
Commission and may result in appropriate orders being made.
Conclusion
[34] Whilst recognising that the Commission does have the power to grant the application I
am not satisfied that there are sufficient grounds to warrant the application being granted at
this time.
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[35] In coming to my conclusion I have taken into account that the application goes to de-
identification of the parties in the hearing list (which, in any event, does not, as a matter of
administrative policy, identify the Respondents to an anti-bullying application), persons
appearing at the hearing and the decision, which will not be issued until after the hearing is
completed. The hearing list will not identify the Respondents and matters associated with the
hearing and decision can be considered, on application, at a more appropriate time.
[36] I also recognise that in this decision I have relied on material not brought to the
attention of the parties. As the Applicant does not object to identification I do not consider
this an issue at this point in time where there has been no identification of the Respondents.
[37] This decision does not preclude a further application under s.593 as the matter
proceeds.
COMMISSIONER
1 See s.789(1)(b)(ii). See also Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank and Anor [2014]
FWC 3408.
2 PR925178.
3 Ibid, [19]-[21].
4 (2005) 149 IR 80; [2005] NSWIRComm 406.
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THE SEAL OF ISSION THE FAIR WORK
