1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Sharon Bowker; Annette Coombe; Stephen Zwarts
v
DP World Melbourne Limited T/A DP World; Maritime Union of
Australia, The Victorian Branch and Others
(AB2014/1260; AB2014/1261; AB2014/1266)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 JULY 2015
Application for an FWC order to stop bullying – Application for confidentiality order.
Introduction
[1] DP World Melbourne Ltd (DP World) has applied for an order to be made pursuant to
s.594 of the Fair Work Act 2009 (the Act) principally directed to the applicants’ legal
representatives, restricting the publication of certain documents attached as annexures to a
witness statement of Mr Glen McCluskey (McCluskey statement) dated 22 May 2015 and
filed in these proceedings pursuant to procedural directions earlier made. The McCluskey
statement and the annexures are yet to be admitted as evidence in these proceedings.
[2] The applicants in these proceedings oppose the making of such an order and say that
the need for confidentiality has not been made out and, in any event, an order is unnecessary
because DP World's concerns about the use and disclosure of particular documents are
adequately protected by the implied undertaking to which the applicants and their legal
representative are subject to as discussed in Harman v Secretary of State for the Home
Department1 (Harman). To the extent that there is any doubt about whether the Harman
implied undertaking applies in matters before the Fair Work Commission (Commission), the
applicants have confirmed by undertaking in writing to DP World that they will be bound.
[3] The Maritime Union of Australia (MUA), which is also a party to these proceedings,
through its legal representatives has given an undertaking to DP World in substantially the
same form as the orders DP World seeks.
Consideration
[4] As I have indicated above the order sought by DP World seeks to restrict the
publication of a number of documents annexed to the McCluskey statement. The basis on
which it is said that the order is necessary and justified as follows.
1 [1983] 1 AC 280
[2015] FWC 4542
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 4542
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[5] DP World maintains that the documents and information contained therein, that is
sought to be protected, relates to particular allegations about conduct in the workplace which
has been raised on a confidential basis by the particular employees with DP World. The
documents identify the employees that have been involved in investigations into various
allegations to date, and the specific information provided by them to DP World in those
investigations.
[6] DP World submits that the identity of employees who participated in investigations
and the information disclosed by them is not relevant to the question of whether the relief
sought by the Applicants should to be granted.
[7] Furthermore, DP World submits that absent an order, given the number of employees
and union representatives who are named as parties in the proceeding, if all individual named
parties are to be provided with copies of the relevant documents (or the information set out
therein), there is a real risk that the information provided to DP World during its
investigations, and the details of the employees who have provided the information, may be
disclosed among DP World’s workforce.
[8] DP World submits, without suggesting that any of the parties to the present proceeding
would engage in inappropriate conduct, in the past, documents filed in Federal Court
proceedings have been distributed among the workforce at site level, such that the evidence of
those matters was disclosed to people who were not directly concerned in the issues before the
Court. DP World says that when such disclosure had occurred previously, it was not possible
to identify how this had occurred.
[9] According to DP World, the documents in relation to which the restriction order is
sought are confidential documents relating to workplace investigations at DP World. If these
documents and the information in them are disclosed, there is a risk that it could undermine
both continuing workplace investigations of DP World and employee confidence in the
investigation policies and procedures more generally.
[10] The applicants submit that the order should not be made. They say that the paramount
consideration in determining whether the order should be made is the principle of open
justice, including the open disclosure of the document relied upon by a party in these
proceedings.
[11] The applicants submit that their case is that they have been subjected to workplace
bullying because they have resisted the acknowledged culture of silence at DP World. They
have sought to support each other and their circumstances are intertwined and not separable.
The applicants say that the manifestation of the culture of silence at DP world is that an
unidentified group considers that there is, and should continue to be, a system of authority and
control which stands apart from the employer and any employee who fails to adhere to that
system should be subjected to retribution. The applicants submit that it would work to the
advantage of those who perpetuate this view that confidentiality orders are issued.
Consequently, the orthodox principle of open justice tells against the making of the order
sought by DP World.
[12] The applicants submit that even if the need for confidentiality had been made out by
DP World, which they do not accept, the order should nonetheless be refused if it has the
[2015] FWC 4542
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effect of frustrating the administration of justice. In any event, the applicants submit, orders of
the kind sought are usually made in cases where there was a need to protect genuine trade
secrets or commercially confidential material, matters on which it is usually unnecessary for
legal representatives to take instructions in the furtherance of their clients cases. However, the
material that would be the subject of the order sought by DP World is not of that kind.
Moreover, the restrictions that would be imposed by the order sought would impede the
applicants’ legal representative’s capacity to take instructions from the applicants and thereby
provide DP World with a forensic advantage over the applicants. In the result, so it was
submitted, the administration of justice would be frustrated.
[13] Finally, the applicants submit that a Harman undertaking, which their legal
representatives have already given, is sufficient and that DP World’s reliance on the
confidentiality provisions of its workplace policy is not a basis for the making of the order.
[14] Section 594 (1) of the Act vests a discretion in the Commission to make an order
prohibiting or restricting the publication of certain things in relation to matters before the
Commission if satisfied that it is desirable to do so because of the confidential nature of any
evidence, or for any other reason.
[15] Considerations of open justice and the administration of justice are clearly relevant to
the exercise of discretion to make an order under section 594 (1) of the Act. However, these
considerations are not to be applied in a vacuum and need to be considered in the context of
the express power to prohibit or restrict publication of certain material having regard to its
confidential nature or for any other reason and the circumstances of a particular case.
[16] We are not here concerned with an application to restrict the publication of the identity
of any party to those proceedings, or to avoid bringing about some embarrassment to such
party. Rather, this application is concerned with protecting the identity of employees who are
not parties to this proceeding and are not presently proposed to be witnesses in the
proceedings, who have given information to DP World on a confidential basis pursuant to its
workplace behaviour policy that assures confidentiality to such employees, as well as the
information given by those employees to DP World during its investigations.
[17] The applicants do not dispute that the information to which the order is sought relates
was provided to DP World by various employees on the basis that would maintain
confidential. It is also not disputed that DP World’s workplace behaviour policy assures
confidentiality so far as is practicable in the complaints and investigation process and that
complaints about unacceptable workplace behaviour will be treated confidentially. In the
circumstances I am satisfied that the information in the documents is of a confidential nature.
[18] In my view, making an order of the kind of sought by DP World does not undermine
the principle of open justice. As I have already indicated, the order sought is not directed to
preventing the publication of the identity of the party to these proceedings or any witness to
the proceedings. The order sought does not seek to shield DP World from disclosure of the
allegations made against it by the applicants or from any embarrassment, discomfort or
inconvenience that might arise from the public scrutiny of the allegations made. Nor does the
order seek to limit disclosure or scrutiny of DP World’s workplace behaviour policy.
[19] Given that certain employees provided information to DP World pursuant to an
assurance of confidentiality, I accept that there is a real risk of undermining the confidence
[2015] FWC 4542
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that those employees have in the workplace behaviour policy if the employees’ identities, or
the information that they provided to DP World during the investigation is disclosed,
particularly in the workplace. Moreover, given the allegations made by the applicants in this
proceeding relate to conduct to which they have been subjected by some DP World
employees because of complaints they have made or information thought to have been
provided to DP World, the applicants should recognise that there is a risk that similar conduct
about which they comply, might be directed at the employees whose identity DP World seeks
to protect. I do not accept that the culture of silence will be perpetuated if an order is made.
The employees for whom protection is sought have already provided information to DP
World. A diminution of confidence in the integrity of the investigation process under DP
World’s workplace behaviour policy is more likely to have that effect. An order of the kind
sought will minimise that risk.
[20] Ultimately, the question whether to make an order involves balancing the
considerations of open justice and the interests of fairness and justice, taking into account how
the order would affect each side. It is also appropriate to take into account the interests of
persons who are not parties to this proceeding, but who have given information to DP World
under an assurance of confidentiality. I am satisfied that an appropriate balance is struck by
the making an order of the kind proposed. I do not accept that an order of the kind sought is
contrary to the proper administration of justice because it will give DP World a forensic
advantage or inhibit the capacity of the applicants to properly prepare and conduct their cases.
Each of the applicants will have access to relevant material as it affects their respective case.
It is not the point that their cases are being heard together or that the applicants support one
another. Their legal advisers will have access to all of the material, and any difficulties that
arise may be brought to my attention with notice to DP World, for resolution.
[21] I am satisfied in the context of these proceedings, having regard to that nature of the
confidential information, that it is appropriate to make an order restricting publication of the
documents identified by DP World. The order will appropriately protect the identities of non-
parties to this proceeding and the information that these non-parties have given DP World
during confidential workplace investigations. The order will also avoid the prospect of
compromising any on-going investigations and will maintain confidence in the confidential
investigation procedures of DP World’s workplace behaviour policy.
Conclusion
[22] I am satisfied that the matters contained in the documents identified as particular
annexures to the McCluskey statement are confidential in nature. For the reasons given I
consider that an order restricting the publication of those matters is desirable and I make such
an order, which is separately issued in PR569103.
DEPUTY PRESIDENT
WORK COMMISSION SEAL OF AR WORK AHK
[2015] FWC 4542
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Appearances:
T. Lange for the applicants
Y. Bakri of Counsel for the The Maritime Union of Australia
H. Skene for DP World
Hearing details:
Melbourne.
2015
30 June
Printed by authority of the Commonwealth Government Printer
Price code A, PR569102
