1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Peter Hankin
v
Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op; Ben
Ridgeway; Simon Ballingal; Chris Henry; David Power; Grant Crawford;
Stephen Wells
(AB2014/30)
COMMISSIONER LEWIN MELBOURNE, 1 DECEMBER 2014
Application for an FWC order to stop bullying - application by the Respondent for
confidentiality orders - principle of the open administration of justice - status and nature of
allegations made in the anti-bullying jurisdiction - confidentiality orders not granted.
Introduction
[1] This decision relates to an application by Plumbers Supplies Co-Operative Ltd T/A
Plumbers Supplies Co-op (Plumbers Supplies) and the other named respondents (the
Respondents) for the Fair Work Commission (the Commission) to make confidentiality orders
in this matter on the following basis:
“1. That the hearing of Fair Work Commission matter AB2014/30, and all associated
proceedings, be conducted in private;
2. That the names and addresses of persons attending the hearing of the
aforementioned proceedings, and all associated proceedings, including Plumbers
Supplies Co-op, not be published; and
3. That the whole of the decision and any orders in Fair Work Commission matter
AB2014/30, and all related proceedings, be anonymised.”
[2] Mr Peter Hankin, the applicant in this matter, opposed the confidentiality orders being
made, except insofar as suppressing the personal addresses of any witnesses.
[3] I have decided not to make the orders sought, at this time and at this stage of the
proceedings, for the reasons that follow.
[4] This decision does not preclude the Respondents from applying for confidentiality
orders at a later time as the nature of the evidence flowing from the hearing of the substantive
matter becomes clearer.
[2014] FWC 8402
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 8402
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Background
[5] The Respondents made the application for confidentiality orders on 3 October 2014.
Mr Hankin responded to the application for confidentiality orders on 7 October 2014.
[6] The application for confidentiality orders was discussed at the hearing of 8 October
2014 in the following terms, as transcribed in paragraphs 41 to 70 of the transcript:
“PN41
MR FORSTER: Indeed. I'm of the view that it's probably most appropriate at this
point in time to simply hand up a decision of Bissett C in the anti-bullying jurisdiction,
which appears to me to be the only occasion that a contested application to identify the
record has been advanced, and I can provide a copy to my friend and also to you,
Commissioner.
PN42
THE COMMISSIONER: Is it necessary to make this decision now?
PN43
MR FORSTER: Perhaps not.
PN44
THE COMMISSIONER: The hearing is conducted in private.
PN45
MR FORSTER: Yes.
PN46
THE COMMISSIONER: And there is no transcript, unless I order it or the parties
order it, and at an appropriate time before the transcript would be produced I could
determine whether or not to impose a confidentiality order on it.
PN47
MR FORSTER: Yes.
PN48
THE COMMISSIONER: And to file likewise.
PN49
MR FORSTER: Yes.
PN50
THE COMMISSIONER: So I'm not quite sure that it's necessary to make that now.
Isn't there a respectable case that I should actually hear the evidence before I decide
whether or not I blanket it?
PN51
MR FORSTER: In our submission, because of the number of allegations that have
been raised against the individual employee respondents about behaviour that isn't
[2014] FWC 8402
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connected to work, that is about behaviour that occurred outside of work, the potential
for damage to be done to reputation because of that
PN52
THE COMMISSIONER: I'm more or less assuming that that's an arguable
proposition and really just raising with you the question of when the determination of
the extent of confidentiality should be made; whether it needs to be made now.
PN53
MR FORSTER: Yes.
PN54
THE COMMISSIONER: At the present time there's no transcript of the proceedings.
There will be one if I order it.
PN55
MR FORSTER: Yes.
PN56
THE COMMISSIONER: I assume there's nobody in the room other than the people
that are immediately involved in the matter.
PN57
MR FORSTER: Yes, that's quite right, and we don't cavil with the proposition that
we could make that application at a later date or when we become aware
PN58
THE COMMISSIONER: I could decide it at a later date. I mean you'll put it on the
record, I assume.
PN59
MR FORSTER: Yes.
PN60
THE COMMISSIONER: And you've made it out in some detail and you're going to
hand up this decision. I will receive it from you now.
PN61
MR FORSTER: Yes.
PN62
THE COMMISSIONER: My associate will take it from you and I'll have a look at it
now. I just wanted to raise with you this question because there are balancing
considerations here. There is the question of public justice that is to be considered.
PN63
MR FORSTER: That's quite right, Commissioner. If I could...
[2014] FWC 8402
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PN64
THE COMMISSIONER: So there are balancing considerations and it's not as if I
need to rush into this decision because it seems to me that I could impose a
confidentiality order on the matter at any time.
PN65
MR FORSTER: Yes.
PN66
THE COMMISSIONER: And whether or not I would do so might be informed by
my consideration of the evidence, rather than making assumptions about what the
evidence will reveal when it comes under cross-examination.
PN67
MR FORSTER: Yes, I accept that, your Honour.
PN68
THE COMMISSIONER: If I get to the point where I become concerned about
allegations that cannot be substantiated on any reasonable ground being made and are
potentially defamatory, then at that point I might choose to impose a confidentiality
order. If, however, the evidence proceeds on the basis where there are contested issues
of fact - and I'm satisfied that there are matters of conduct which are serious in the
jurisdiction - then I might not.
PN69
MR FORSTER: Yes, we accept that. Thank you.
PN70
THE COMMISSIONER: So my inclination would be not to do that at the present
time.”
[7] As evidenced by the transcript, I made no decision at the hearing on 8 October 2014 to
grant the confidentiality orders sought. At that time, the decision to do so would be subject to
the consideration of the evidence as it unfolded. However, the course of the hearing on
8 October 2014 resulted in Plumbers Supplies proposing to undertake certain actions to
remedy the concerns of Mr Hankin and the issue of the confidentiality orders was not
revisited as the hearing concluded following Mr Hankin’s acceptance, in-principle, of the
proposal by Plumber Supplies.
[8] The Respondents pressed the application for confidentiality orders in their response to
Mr Hankin’s application for the Commission as presently constituted to recuse itself on the
basis of apprehended or actual bias (see Peter Hankin v Plumbers Supplies Co-Operative Ltd
T/A Plumbers Supplies Co-Op & Anors [2014] FWC 7923).
[9] Due to the serious nature of the application for recusal made by Mr Hankin and the
urgency with which a decision was required, I did not publish my reasons for not making the
confidentiality orders sought by the Respondents at that time.
[2014] FWC 8402
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[10] The recusal decision, mentioned above, was published as a public document with no
redactions or suppression of the facts, submissions, evidence or names of the parties as
relevant to the making of that decision.
Legislative scheme
[11] The confidentiality orders sought by the Respondents rely on the Commission
exercising its powers under two different sections of the Fair Work Act 2009 (the Act).
[12] Section 593(3) of the Act provides the power for the Commission to make orders in
relation to confidential evidence given in hearings, as follows:
“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.”
[13] Section 594 of the Act is general in nature and provides the power for the Commission
to make confidentiality orders on the following basis:
“594 Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the
following in relation to a matter before the FWC (whether or not the FWC holds a
hearing in relation to the matter) 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) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in
relation to the matter;
(c) matters contained in documents lodged with the FWC or received in
evidence by the FWC in relation to the matter;
[2014] FWC 8402
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(d) the whole or any part of its decisions or reasons in relation to the matter.”
Submissions
[14] The Respondents made the following submissions in relation to their request for the
confidentiality orders to be made:
“1. Fair Work Commission Matter AB2014/30 and all related proceedings should be
conducted in private and all names and addresses of those persons relevant to the
proceedings, including Plumbers’ Supplies Co-op, should be anonymised because the
proceedings include:
1.1 allegations that are likely to cause severe embarrassment and unwarranted
damage to the reputations of individual employees;
1.2 allegations about criminal conduct by individuals that are strenuously
denied and unsupported by evidence;
1.3 allegations that Plumbers Supplies Co-op has sanctioned criminal
behaviour (which it strenuously denies);
1.4 allegations that are likely to cause severe embarrassment to Plumbers
Supplies Co-op and unwarranted damage to its reputation;
1.5 disclosure of sensitive information including but not limited to the names
of clients of Plumbers Supplies Co-op and Mr Hankin’s recent medical history
and alleged diagnosis with a mental illness; and
1.6 allegations by Plumbers Supplies’ Co-op that the proceedings are
vexatious.
2. In all of these circumstances the requirement of the Commission to operate in an
open and transparent manner are outweighed by the need to protect all persons
involved in the proceedings from unwarranted damage.”
[15] On 7 October 2014, Mr Hankin made a number of submissions in response opposing
the application for confidentiality orders, which can be summarised as follows:
Holding hearings in public is a fundamental tenet of the open administration of
justice;
There is nothing inherently more embarrassing about giving evidence in open court
in these proceedings than in any other proceedings before any other court or tribunal;
There is nothing inherently embarrassing about giving evidence before a court or
tribunal;
[2014] FWC 8402
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The Commission should only suppress evidence if the allegations made by the
Applicant are in fact untrue, this applies in relation to the truth of certain allegations
of both a civil and criminal nature, and can only be done so once the evidence has
been heard and evaluated;
Mr Hankin does not require the suppression of any aspect of his own medical
history.
[16] I note that Mr Hankin does not object to maintaining the confidentiality of the personal
addresses of the witnesses who may give evidence before the Commission.
[17] As noted above, at the hearing of 8 October 2014, I discussed the issues involved in
granting a confidentiality order at that time. During the hearing, the Respondents handed up a
copy of the decision of the Commission in Justin Corfield [2014] FWC 4887, as the only
decision available, at the time of the hearing, in relation to contested confidentiality orders in
the Commission’s anti-bullying jurisdiction.
[18] Mr Hankin’s submissions on the recusal application, made on 31 October 2014,
obliquely discussed the question of making confidentiality orders, however, made no
additional submissions to those advanced on 7 October 2014.
[19] The Respondents, in response to the recusal application, revisited the question of
making confidentiality orders with the following submissions:
“81. Finally, although this issue was not raised during the mention on 31 October 2014,
the Respondents’ respectfully request that the Commission revisit its application for
anonymity orders.
82. During the hearing on 8 October 2014 the Commission declined to make
anonymity orders but did not dismiss the application entirely. Rather, the application
was left on foot pending the progress of the matter.
83. In his written submissions dated 31 October 2014 the applicant said in relation to
the Commission:
“The Applicant wonders what the general public would make of this sorry saga
should it ever come to their attention.”
84. Given that this comment followed an outrageous allegation by the applicant
claiming that the conduct of the Commission in these proceedings has been designed
to force the applicant to resign thus burying his applications, it is difficult to see how
any reasonable person could interpret this comment as anything other than a threat to
defame the Commission in public.
85. The respondents’ fear the same for each and every one of them and contend that
the anonymity orders sought (with the exception that transcript of the proceeding must
be taken) should now be made.”
[2014] FWC 8402
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Consideration
[20] The considerations relevant to the exercise of the discretion to grant the confidentiality
order in the context of the anti-bullying jurisdiction are set out in the decision of
Commissioner Bissett in Justin Corfield, referred to above, with which I agree.
[21] The confidentiality orders sought by the Respondent can be characterised as seeking
that the Commission exercise its powers to make confidentiality orders as follows:
to hold all of the hearing/s in private under s 593(3)(a) of the Act;
to prohibit the publication of the names and addresses of all persons appearing at the
hearing under s 593(3)(c) of the Act; and,
to prohibit or restrict the publication of parts of decisions or reasons arising from this
matter, in particular the names and addresses of any persons referred to in the
decision, under s 594(1)(d) of the Act.
[22] The presumption in s 593(2) of the Act is that if the Commission holds a hearing, it
must be in public, subject to certain limited circumstances where it may be conducted in
private. Further, the presumption in s 601(1) of the Act is that certain decisions of the
Commission must be in writing and under s 601(4) of the Act those decisions must be
published. Exercising the discretion to grant the confidentiality orders, all or in part, will have
a varying degree of effect on the principle of open justice as it applies in the Commission.
[23] The Respondents submitted the Commission should exercise its powers to make the
confidentiality orders sought on the basis that the allegations made by Mr Hankin in his
application are of a serious nature and include allegations of criminality or complicity in
criminal behaviour, which may cause serious embarrassment and unwarranted damage to the
reputation of the individual employees named as respondents and to Plumbers Supplies. In
addition, Plumbers Supplies was concerned that the names of its clients may be disclosed and
that the proceedings were vexatious.
[24] The principal argument made by the Respondents involves the possible serious
embarrassment and unwarranted damage to the reputation of the Respondents. At this stage of
the proceedings, such embarrassment and damage can only arise on the basis of the mere fact
of the application in this matter having been made. The substantive aspects of the application
are yet to be heard. The potential embarrassment and damage raised by the Respondents is not
unique to the circumstances of this matter or to any of the 37,000 other applications made to
the Commission each year.
[25] I refer to the decision of Commissioner Bissett in Justin Corfield in which the
Commissioner referred to the matter of Day v Smidmore and Others (No 2) (2005) 149 IR 80;
[2005] NSWIRComm 406 (Smidmore). Smidmore is a decision of the New South Wales
Industrial Relations Commission in Court session, which considered the making of
confidentiality orders in that forum. The terms of the relevant legislation in exercising the
discretion in that forum were substantially similar to those of this Commission. Commissioner
Bissett summarised the approach of courts and tribunals in weighing the principle of open
justice with any embarrassment or distress felt by a party to proceedings as follows:
[2014] FWC 8402
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“As was explained in Smidmore, mere embarrassment, distress or damage by publicity
is not a sufficient basis to grant such an application.”
[26] Further, the key argument made by the Respondents is that it is the allegations or the
nature of the allegations that should dispose the Commission to grant the confidentiality
orders sought. Such arguments were considered in in Smidmore and rejected as follows:
“[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’...
“[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
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.’”
[27] I am not satisfied that it is desirable for the Commission to make confidentiality orders
for the hearing to be held in private, for the publication of the names of persons attending the
hearing to be prohibited or restricted, or for the prohibition or restriction of the publication of
the names of any persons referred to in decisions in relation to this matter. This is because the
mere embarrassment, distress or damage that may be caused to the Respondents by the
publication of these allegations is not sufficient to displace the presumption in favour of the
open administration of justice.
[28] In terms of the names of clients of Plumbers Supplies being published or the addresses
of persons appearing at the hearing being published, the Commission does not propose to
publish those details and accordingly I am not satisfied confidentiality orders in those terms
are desirable at this time.
[29] The Respondents will have a further opportunity to make an application for
confidentiality orders if, for instance, it became clear that the details of clients of Plumbers
Supplies or personal addresses of persons attending the hearing were relevant details in
relation to determining substantive issues in contention between the parties or in deciding any
procedural issues that arise in relation to the Commission’s handling of this matter.
[2014] FWC 8402
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[30] Finally, as I discussed in paragraph 21 of my decision in Peter Hankin v Plumbers
Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op & Anors [2014] FWC 7923, I have
refused to strike out Mr Hankin’s application as vexatious. As a result, this is no longer a
ground upon which the application for a confidentiality order can be sustained.
Conclusion and decision
[31] In balancing the interests of the open administration of justice against the
embarrassment or perceived damage that the Respondents may suffer, I am not satisfied that it
is desirable to make the confidentiality orders sought by the Respondents and accordingly the
Respondents’ application for confidentiality orders is refused.
[32] This decision does not preclude the Respondents from applying for confidentiality
orders at a later time as the nature of the evidence flowing from the hearing of the substantive
matter becomes clearer.
COMMISSIONER
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