1
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2016/6286)
COMMISSIONER WILSON MELBOURNE, 27 MARCH 2017
Alleged dispute involving compliance with policies, procedures and practices in the
investigation of conduct allegations. Whether hearing and evidence should be confidential.
[1] In the course of a hearing on Monday, 27 March 2017 I decided to refuse an
application to make an ongoing confidentiality order in relation to this matter, and to revoke
an initial, time-limited order. Discussion with Counsel after I had indicated my decision led to
the parties agreeing that I should make a variation to the existing order to provide that it
continue for a further 24 hours in order that the Applicant may consider my decision. I
advised the parties that my reasons for decision would be provided to them at the earliest
opportunity. These are my reasons.
[2] The application before me as made by the United Firefighters’ Union (UFU) under
s.739 of the Fair Work Act 2009 (the Act) involves an endeavour by the Metropolitan Fire
and Emergency Services Board (the MFB) to investigate the conduct of a particular
firefighting employee, with a view to consideration of disciplinary action against him.
[3] Two broad questions have been put to the Commission for determination in this
matter. Those questions are;
“(1) By its conduct, in dealing with the allegations against Employee A, the
Metropolitan Fire and Emergency Services Board (the MFB) failed to comply with its
policies, procedures and practices by:
(a) failing, prior to the commencement of its formal investigation, to consider
and/or determine whether it was appropriate to informally counsel Employee A
under its Operations Work Instruction, Counselling Procedures; and/or
(b) failing, prior to the commencement of its formal investigation, to consider
and/or determine whether it was appropriate to formally counsel Employee A
under its Operations Work Instruction, Counselling Procedures; and/or
[2017] FWC 1708 [Note: An appeal pursuant to s.604 (C2017/1653) was
lodged against this decision - refer to Full Bench decision dated 16 May
2017 [[2017] FWCFB 2500] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB2500.htm
[2017] FWC 1708
2
(c) suspending Employee A prior to the laying of any charges, contrary to its
Disciplinary Investigation Guidelines.
(2) Alternatively, if by its conduct, in dealing with the allegations against Employee A,
the MFB intended to change or amend its policies and procedures, it did so without
engaging in any consultative process.”
[4] This matter was first dealt with by me in November and December 2016 by way of
conciliation. When that was unsuccessful the Applicant, the UFU, sought arbitration of the
alleged dispute. A directions hearing on the matter was held by me on 25 January 2016.
Broadly, two sets of directions were made in the course of that hearing. The first was a set of
directions for the filing of material by each party, comprising outlines of submission and
witness statements and the setting of dates for the hearing of the matter. The second
significant direction was an order made by me establishing confidentiality over the file and its
contents, at least until 27 March 2017, the first date for hearing. While I was generally aware
of the allegations against the employee at the time the order was made, having had some part
of those matters discussed in the conciliation conferences I conducted, I did not have the
benefit of having previously seen the full suite of materials now before the Commission.
[5] While resisted by the Respondent, the MFB, the confidentiality orders were made by
me so as to allow the parties to file the submissions and witness statements on which they
sought to rely and for me to then review what had been filed, so as to determine whether the
material warranted an ongoing confidentiality order.
[6] The order made by me on 30 January 2017 is in the following terms;
“[1] Pursuant to ss.593 and 594 of the Fair Work Act 2009 (the Act) I am satisfied that
it is desirable to make an order for confidentiality in relation to the conduct of matter
C2016/6286. I order as follows:
1. The identity of the parties and witness, all evidence, material, transcript of
proceedings and any decision in relation to this matter are confidential.
2. The evidence, material, transcript of proceedings and decision in relation to
this matter shall not be published.
3. No person, other than the parties to the proceedings and their
representatives, shall be permitted access to the file of the proceedings except
on direction issued by a Member of the Fair Work Commission.
[2] This Order shall apply until 5 PM on Monday, 27 March 2017, unless further
extended.”
[7] Since making that order, both parties have filed their material in accordance with the
Commission’s directions.
[8] In the case of the UFU, those materials consist of an outline of submissions on the
merits of the case; four witness statements; a reply witness statement; and a further outline of
submission and witness statement dealing with the Commission’s intimation that the
confidentiality order may be appropriate to be lifted. The material filed by the Applicant does
[2017] FWC 1708
3
not include a witness statement from the employee who is the subject of the MFB allegations.
Within the UFU material there is no admission of the conduct the MFB seeks to investigate,
but then again there is no denial.
[9] The MFB has now also filed its material, which consists of an outline of submission
on the merits the matter; one witness statement; and an outline of submission on the subject of
revocation of the confidentiality order.
[10] The powers of the Commission to conduct hearings in private or to make orders about
the confidentiality of evidence are contained in s.593 and s.594 of the Act, which are in the
following terms;
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.
(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)).
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:
[2017] FWC 1708
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(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;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC
for consideration in an annual wage review (see subsection 289(2)).
[11] 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, and a decision to grant confidentiality orders will have a varying effect on the
principle of open justice as it applies to the Commission.1 Even though the Commission is
given broad powers by the legislature, and the open justice principle assists in ensuring those
powers are not exercised in a “cloistered process”, the powers within ss.593(3) or 594(1) are
“not intended to lie dormant” and are there to be exercised “albeit infrequently and with
caution”.2
[12] The general approach of the Commission to conduct hearings in private or to make
orders about the confidentiality of evidence was set out by Commissioner Bissett in the matter
of Re: Justin Corfield;3
“[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 Union4 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
[2017] FWC 1708
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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:
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.’”5
[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)6 (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
[2017] FWC 1708
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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 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.
[2017] FWC 1708
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...
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]
[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.”7
[2017] FWC 1708
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[13] The principle of open justice and its application to matters dealt with by the
Commission was discussed by Vice President Hatcher in the matter of Amie Mac v Bank of
Queensland Limited & Ors;8
“[6] The principle of open justice will usually be the paramount consideration in
determining whether a confidentiality order of the type sought by the respondents
ought be made. The main features of that principle were usefully summarised in the
NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited &
Ors v James Warburton (No 1)9 as follows:
“[2] The reason for the principle of open justice is that, if the proceedings of
courts of justice are fully exposed to public and professional scrutiny and
criticism, and interested observers are able to follow and comprehend the
evidence, the submissions and the reasons for judgment, then the public
administration of justice will be enhanced and confidence in the integrity and
independence of the courts will be maintained: Russell v Russell ; Farrelly v
Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of
proceedings publicly and in open view assist in removing doubts and
misapprehensions about the operation of the system, but it also limits the
opportunity for abuse and injustice by those involved in the process, by making
them publicly accountable. Equally, public scrutiny operates as a disincentive
to false allegations and as a powerful incentive to honest evidence: J v L& A
Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all
those reasons, the principle of open justice is not only an indispensable feature
of our system, but it is also a healthy feature.
[3] There are limited exceptions to the principle of open justice. Where those
exceptions apply, the courts will restrict access where appropriate. But
departure from the principle of open justice is only justified where observance
of the principle would in fact frustrate the administration of justice by unfairly
damaging some material private or public interest. To that end, an order
restricting the public availability of information will only be made if it is really
necessary to secure the proper administration of justice. Such an order must be
clear in its terms and do no more than is necessary to achieve the due
administration of justice. Furthermore, there must be some material before the
Court upon which it can reasonably reach the conclusion that it is actually
necessary to make an order of that type: John Fairfax & Sons Ltd v Police
Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA);
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010]
NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001]
NSWSC 1024 (Einstein J).
[4] The consequence of the principle of open justice is that embarrassing,
damaging and inconvenient facts may occasionally come to light. That
consideration has never been regarded as a reason in itself for the suppression
of evidence or for an order restricting access to documents: John Fairfax
Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South
Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common
for sensitive issues to be litigated and for information that is extremely
[2017] FWC 1708
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personal or confidential to be disclosed. This is sometimes an unavoidable by-
product, and a necessary consequence, of the application of the principle.
[5] To avoid the consequences that sometimes follow from the conduct of
proceedings publicly and in open view, parties can, and frequently do, choose
to litigate their disputes by private commercial arbitration. But if they choose
to litigate in court, they must accept the necessity for the Court to conduct its
proceedings openly and with transparency.”
[7] The above passage describes the open justice principle in relation to courts, but I
consider that the passage is equally applicable to a tribunal such as this Commission
which conducts its processes in a quasi-judicial fashion.
[8] As identified in the passage quoted, departures from the principle of open justice
may be permitted where not to do so would defeat the proper administration of justice.
For example, in criminal proceedings involving an allegation of blackmail, identifying
details of the target of the alleged blackmail will often be suppressed in order that the
system of justice does not serve to aid the blackmailer. Genuine trade secrets and
commercially confidential information may be the subject of orders restricting
publication and disclosure where their exposure in the course of litigation may result
in a litigant suffering the injustice of detriment at the hands of a competitor.”
[14] It has also been said by the Commission, in regard to the application of these
principles, that the question of whether to make a confidentiality 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; per Bowker & Ors v DP World & Maritime Union of
Australia, Victorian Branch [2015] FWC 4542, [20]. Other considerations pertinent to the
principle of open justice include the proposition that despite embarrassing and damaging
facts, generally individual interests must be sacrificed to the greater interest of adhering to an
open system of justice, and that, in relation to an applicant for unfair dismissal who sought,
sometime after the event, to anonymise a tribunal’s published findings in relation to his
application, that;
“The applicant is to be taken to have known, or to be a person who should have known,
that a possible outcome of his initiation of the proceedings was that findings would be
made as to contested factual matters, which might be adverse to one or both of the
parties, and that they would be published and available to the public. An unsuccessful
applicant is usually likely to suffer some degree of damage in such circumstances, but
it is a hardship which must generally be accepted as a necessary incident of the open
administration of justice.”10
[15] In this matter, the requirement for the continuation of the confidentiality order is put
forward by the UFU for several reasons; that the dispute is about the MFB’s process for
investigation of allegations against the employee; that the investigation is incomplete and
unfinished; that while there will be prejudice to the employee concerned with an open
hearing, there will be none to the MFB if the matter is dealt with confidentially; that there is
no forensic purpose relevant to the investigation for there to be a public proceeding; that the
relevant industrial and political environment, as well as the allegations themselves, will lead
to the matter attracting significant media attention; and that there will be irreparable damage
[2017] FWC 1708
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to the investigative process, the reputation and circumstances of the firefighter concerned as
well as the MFB.11 Further to these arguments, the UFU contend that;
“This is not a case, where the person accused in respect of the allegations brings the
proceeding, and therefore accepts the risk associated with the litigation. In this
proceeding the Applicant, the United Firefighters Union, brings the application to
protect not only the person accursed of the allegations but all of its members to
safeguard and ensure that the proper processes and guidelines are complied with by the
MFB.”12
[16] While advancing the submission there will be prejudice to the employee concerned if
there is no ongoing confidentiality order, the UFU does not claim there would be prejudice to
it.
[17] The allegations that have been put to the employee concerned and which are desired
by the MFB to be investigated are set out in several correspondences to him from the MFB.
The allegations relate to Facebook posts alleged to have been made by the employee between
at least December 2015 and August 2016. Some of the allegations relate to posts on the
employee’s personal Facebook page, with others related to posts on the Facebook pages of the
MFB and the CFA and a member of the Victorian Parliament. Some of the allegations are
particularised as having been posts that are able to be viewed by the public; some as posts that
were contrary to certain legislation applicable to the MFB and the Code of Conduct for Public
Sector Employees; with other allegations put forward as posts containing allegedly derogatory
language or language that may be considered threatening and derogatory. Some of the
allegations pertain to posts made after the first tranche of allegations were made by the MFB
to the employee concerned and apparently taking issue not only with the MFB’s investigation
process, but seeking to find out and challenge those who may have reported him to the MFB.
[18] The matter before me is not whether these allegations are made out or not, but rather,
as referred to above, whether the MFB has complied with its policies, procedures and
practices in relation to its investigation of the allegations. Such a situation, in which untested
allegations may be publicly aired in the instant proceedings, is not unusual for Commission
decisions dealing with applications for confidentiality orders.13
[19] There is no question that the public conduct of these matters will be embarrassing to
the employee concerned, but that is not unique to the circumstances of this matter, or, as was
said by another Commission member, “to any other of the 37,000 applications made to the
Commission each year”.14 I take into account that the UFU does not make any admissions on
behalf of its member about his conduct, or that the posts are his; however, I also take into
account that it does not deny them either. Language within the alleged posts is strident and
repeated and, at times, employing language that, if it was directed publicly, would not
ordinarily be associated with a person paid by state funds – a public servant in the broadest
sense. While this is so, I am yet to make any findings about the extent to which a link can be
drawn between the posts and the employee’s employment as a firefighter, if he was the
author.
[20] The mere existence of embarrassment to a person involved in Fair Work Commission
proceedings, however obliquely, is not sufficient for an order to be made for ongoing
confidentiality.15
[2017] FWC 1708
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[21] The UFU endeavours to suggest that the employee concerned has not accepted the risk
associated with these proceedings since he has not brought them, and rather the UFU has done
so in his stead with the intention of safeguarding all of its members. I do not accept the
proposition in the absence of evidence before me that the employee did not want these
proceedings to be brought. The employee’s union brought this action, with the assistance of
significant legal representation, including Counsel, in these proceedings, and I presume the
union and its lawyers not only informed him of the commencement of these proceedings but
its attendant risks. Even the union’s own material to the Commission brings within the scope
of these proceedings the allegations against the employee concerned and the material upon
which they are based.
[22] This is therefore not a matter where all efforts are being made by the Applicant to keep
their member from involvement in the matter and for the factual base that has led to the
dispute presently before the Commission to be kept away from the proceedings.
[23] It is also the case that there is no evidence before me that an open hearing of the matter
will damage the investigation process or lead to pressure on the MFB to take a harder line
with any sanction it may consider; nor is it a case where restriction of the public availability
of information will secure the proper administration of justice (or, in this case, the proper
administration of the MFB’s investigation and disciplinary process). Like an earlier decision
of the Commission, I take the view that scrutiny of a disciplinary system, should the system
be robust, may lead to greater confidence in it.16
[24] I am also unpersuaded there will be any irreparable damage to the employee under
investigation, noting there is no direct evidence before me of the damage he would likely
suffer. In any event, proper and detailed examination of the allegations against him may well
lead to his exoneration. Claims of prejudice to individuals in an application for anti-bullying
orders from untested allegations being aired publicly have been assessed by the Commission
as being of a kind that is common to many applications before the Commission and
disregarded as a reason to make confidentiality orders, “albeit that the risk of publication of
the allegations is likely to be greater given the profile and standing” of the union involved in
the allegations.17
[25] This matter relates to how a major Victorian Government authority, the subject of
significant public controversy, investigates allegations that a publicly employed person made
allegedly offensive commentary on multiple occasions in posts on Facebook, and continued to
do so even after allegations of misconduct had been made against him. This matter does not
concern the private interactions of employees in a private company, but allegations of
misconduct by a publicly employed person towards other citizens about matters of public and
political controversy. While internal investigation processes may be a means by which an
employee, such as the one involved in this matter, can avoid the glare of public scrutiny, the
decision to bring the dispute over the investigation to this Commission brings with it the
attendant expectation that the Applicant and its member submit to the principle of open
justice.
[26] There is a strong public interest to this matter being heard and dealt with publicly and
from the start of the hearing that is about to commence. Having considered all aspects of the
request for continuation of the confidentiality order, I am satisfied that the interests of open
justice fall on the side of not making an ongoing confidentiality order and revoking the one
already in place.
[2017] FWC 1708
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[27] As a result I have decided not to issue an ongoing confidentiality order in order for the
whole of these proceedings to be dealt with in public.
[28] In relation to revocation of the existing order, at the request of the UFU, and with the
consent of the MFB, the order made on 30 January 2017 will be varied by the Commission to
provide that it not expire until 24 hours after the time of publication of this decision. The UFU
has been directed by me to file and serve a consent variation dealing with this eventuality.
Once that document is filed, I will make an amendment to the order consistent with the
parties’ agreement.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR591308
1 Application by Hankin [2014] FWC 8402 [22].
2 Matter of Worker A and Ors [2016] FWC 6524 [19]–[21].
3 [2014] FWC 4887.
4 PR925178.
5 Ibid [19]–[21].
6 (2005) 149 IR 80; 2005 NSWIRComm 406.
7 [2014] FWC 4887 [20]-[30].
8 [2015] FWC 774.
9 [2011] NSWSC 385.
10 Samakovlis v Chief Executive, Department of the Premier and Cabinet (Department for Correctional Services) [2016]
SAIRComm 6, [15].
11 Submissions of the Applicant on Confidentiality Order [19].
12 Ibid [18].
13 see for example Bowker & Ors v DP World Melbourne Limited [2014] FWC 7381 [3], [7].
14 Application by Hankin [2014] FWC 8402 [24].
15 See Re Justin Corfield [2014] FWC 4887 [32]; Day v Smidmore and others (No 2) (2005) 149 IR 80; [2005]
NSWIRComm 406 [32].
16 See Re Justin Corfield [2014] FWC 4887 [32].
17 Bowker & Ors v DP World Melbourne Limited [2014] FWC 7381 [12].
OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL
