1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Kim Hodgkins
(AB2018/679)
DEPUTY PRESIDENT KOVACIC CANBERRA, 15 MAY 2019
Application for an FWC order to stop bullying – application by the Applicant for interim
orders and an application by the employer/principal for confidentiality orders – applications
for interim and confidentiality orders not granted Application for an FWC order to stop
bullying.
[1] On 29 October 2018 Ms Kim Hodgkins (the Applicant) filed an application under
s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance
with Part 6-4B of the Act. In her application, Ms Hodgkins alleged that she had been bullied
by the Chief Executive, a number of senior managers and several middle managers at the
Australian Financial Security Agency (AFSA). AFSA in its Form F73 – Response from an
employer/principal to an application for an order to stop bullying raised an objection to Ms
Hodgkins’ application on the basis that the alleged bullying behaviour was reasonable
management action carried out in a reasonable manner.
[2] Ms Hodgkins’ application was the subject of a conference convened by the Fair Work
Commission (the Commission) on 3 December 2018 which failed to resolve the matter. The
conference concluded on the basis that Ms Hodgkins would advise the Commission how she
wished to proceed with her application. On 21 January 2019 Ms Hodgkins advised the
Commission that she wished to have her application determined by the Commission. In
subsequent developments, on 11 April 2019 Ms Hodgkins sent two emails to the Commission
requesting that it issue an immediate interim order preventing her dismissal from the
workplace. Ms Hodgkins application for interim orders was made in circumstances where an
investigation into whether she had breached the APS Code of Conduct was about to be
finalised.
[3] Ms Hodgkins’ application for interim orders was listed for mention and directions
hearing/conference on 17 April 2019. In conference, AFSA provided an undertaking that no
decision on sanction arising from the Code of Conduct investigation would be made prior to
Ms Hodgkins application for interim orders being determined. Directions were issued later
that day, with Ms Hodgkins’ application for an interim order heard on 10 May 2019.
[4] In other developments, AFSA in filing its submissions regarding Ms Hodgkins’
application for interim orders filed an application seeking orders under s.593(3)(c) and 594(1)
of the Act prohibiting the publication and disclosure of the names of the parties in the matter
in any decision of the Commission regarding Ms Hodgkins’ substantive bullying application.
[2019] FWC 3344
INTERIM DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 3344
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[5] At the hearing on 10 May 2019, Ms Hodgkins appeared on her own behalf while
Ms Catherine Mann, a Senior Executive Lawyer with the Australian Government Solicitor,
appeared for AFSA.
[6] For the reasons set out below, I decline to make the orders sought by both
Ms Hodgkins and AFSA. Directions and a notice of listing in respect of Ms Hodgkins’
substantive application for an order to stop bullying will be issued in conjunction with this
decision.
Background
[7] In her application Ms Hodgkins described the behaviour which she considered to
constitute bullying in the following terms:
“Over the past 2 years I have experience [sic] multiple bullying events at AFSA.
This is predominantly in relation to Public Interest Disclosures (PID) that I have made
which the Agency has failed to address, and is trying to cover up.
The Agency appears to believe that terminating my employ [sic], or attacking my
character in the workplace, is the easiest measure to address the multiple frauds,
cover-up of fraud, flawed investigations, failure to comply with Commonwealth
legislation, Code of Conduct breaches and ongoing bullying and harassment that I
have raised with management and also via PID mechanisms.
As discussed with your officer … on the phone today, the Executive of the Agency are
employing measures to make it almost impossible for me to appropriately disclose
matters under PID legislation. I’m also worried that they plan to terminate my
employ [sic] so that it forces me to pursue these matters in an extremely disadvantaged
state, being unemployed. As a single mother with sole responsibility for supporting
my two young children, I need to ensure that this does not occur. Specifically as
reprisal is expressly prohibited under the PID legislation.”1
[8] In her application Ms Hodgkins cites the following as persons against whom bullying
is alleged:
Mr Hamish McCormick, Chief Executive;
Mr Gavin McCosker, Deputy Chief Executive;
Mr Andrew Sellars, Chief Legal Officer;
Ms Bridie Dawson, Chief People Officer;
Ms Jenni Pain, Director;
Ms Jo Stone, Chief Financial Officer; and
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Mr Mark Organ, Director Finance.
[9] Attached to the Ms Hodgkins’ abovementioned emails of 11 April 2019 was among
other things a copy of document titled Code of Conduct Investigation Report to the Australian
Financial Security Authority Preliminary Findings and dated 2 April 2019. The document,
which had been prepared by Ms Alison Spivey a consultant with law firm Ashurst, was
forwarded to Ms Hodgkins to provide her with an opportunity to respond to the preliminary
findings before the investigation report was finalised. Under the heading “Summary of
Preliminary Findings” the document stated “I find that the information gathered supports the
conclusion that Ms Hodgkins breached various elements of the APS Code of Conduct ...”2
[10] By way of background, the Code of Conduct investigation arose as a result of the
alleged failure by Ms Hodgkins to provide a recording of a meeting she had with Mr
McCosker on 21 September 2018 despite initially being asked to do so (as was agreed at the
meeting) and subsequently directed to do so. The transcript of that meeting was also attached
to Ms Hodgkins’ emails of 11 April 2019 and is headed “Transcript of Meeting Re. Public
Interest Disclosure and Reassignment of Duties”. The following are extracts from the
transcript:
“MS HODGKINS: ... is the agency willing to get this transcribed to be ...
MR McCOSKER: I’d like to have a copy of the recording, yes.
MS HODGKINS: Yes, that would be perfect.”3
and later:
“MS ANDERSON [Ms Hodgkins’ support person]: I can take on just to – it’s probably
a simple task for me to just download that into a file and email it to the four of you –
three of you. That’s easy enough for me to do, and I can do that on Monday.
MR McCOSKER: If Kim …
MS HODGKINS: Okay.
MS ANDERSON: If that’s all right with you?
MR McCOSKER: Sure.
MS ANDERSON: I can take that kind of administrative task from you.
MR McCOSKER: Yes. You’re happy with that, Kim?
MS HODGKINS: Yes.
MR McCOSKER: Okay, fantastic. All right, then, is it worth me – how do we do this?
Do you want me to send these notes that I have, and then you add to them, or do you
want me to – given you’re working next week, Kim, do you want me to have a first cut
at going through the recording and making the notes through that and send to you for
then updating, given it’ll take a bit of time? What would you suggest?
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MS HODGKINS: I don’t care. I’ve given up.
MR McCOSKER Okay, if you provide the recording, I will take the action to go
through and do the first draft of the notes.”4
[11] The Code of Conduct Investigation Report was finalised on 16 April 2019 with the
summary of findings unchanged from the abovementioned Preliminary Findings Report.
A copy of the final report was forwarded to Ms Hodgkins on 26 April 2019.
[12] As to AFSA’s application for confidentiality orders, the grounds cited in AFSA’s
application as to why such orders were appropriate included:
the harm that AFSA and individual AFSA employees named in Ms Hodgkins’
bullying application would suffer went beyond ‘mere embarrassment, distress or
damage by publicity’;
there was a real question as to whether Ms Hodgkins’ allegations involved serious
questions to be tried;
the identification of the parties in the matter may adversely affect the ongoing
relationship between the Applicant and others in the agency as was the case
in Application by Ms A,5 and
in circumstances where Ms Hodgkins’ allegations were untested, the identification of
individuals at this early stage of the proceedings may have an adverse impact on
their health and safety.
The statutory framework
[13] The provisions of the Act relevant to the applications before the Commission are set
out below.
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.
593 Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising
powers, except as provided by this Act.
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(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:
(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)).
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Ms Hodgkins’ submissions
[14] In her submissions Ms Hodgkins outlined the orders she sought as follows:
“ Preventing AFSA from taking any further steps to finalise the Code Of Conduct
processes against me, including but not limited to, imposing any disciplinary sanction
on me arising from the investigation or to terminate my employment;
Change my current supervisory arrangement from Ms Dawson to prevent further
bullying and reprisal and remove the conflict of interest that exists given Ms Dawson
is the subject of ongoing Public Interest Disclosure (PID), which I am the
discloser for;
Change my current PID reprisal officer from Ms Denton to prevent further bullying
and reprisal and remove the conflict of interest that exists, and appoint someone to this
role in the wider APS, external to AFSA to reduce any bias; and
That the ‘organisation’ stop any and all actions related to bullying behaviour.”
[15] Ms Hodgkins submitted that the primary purpose of the interim orders was to preserve
her capacity to advance her substantive bullying application, which she stated she would not
be able to do were she to be dismissed. Key aspects of Ms Hodgkins’ submissions included
that:
her bullying and victimisation primarily started when she brought to the attention of
her supervisor ongoing procurement breaches within AFSA;
rather than addressing the multiple Code of Conduct breaches by senior AFSA staff
which she had identified, multiple executives sought to bully and harass her in an
attempt to have her resign from the workplace;
the bullying conduct included transferring her from AFSA’s finance area to its human
resources area to isolate and exclude her within the workplace, refusing to provide her
with appropriate transitional training, threatening her with suspension, threatening to
escort her from the workplace after she asked to be afforded procedural fairness,
initiating Code of Conduct processes against her after she raised public interest
disclosures, having her report to Ms Dawson after she raised concerns regarding
Ms Dawson’s bias and ability to apply procedural fairness and ignoring her concerns
regarding the ability of her assigned risk reprisal officer to undertake appropriate
investigations based on evidence and in accordance with procedural fairness;
there have been numerous instances where she asserted that AFSA had conducted
processes and investigations in a manner which were neither fair nor objective and
where significant bias and conflict of interest existed, disputing AFSA’s contention
that this constituted reasonable management action;
these significantly flawed processes had been undertaken intentionally and constituted
a form of bullying;
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were she to be dismissed her substantive bullying application would not be heard and
she would not be able to access the unfair dismissal/general protections jurisdiction
except in an extremely disadvantaged state, i.e. being unemployed and having to use
her personal time and resources to do so;
for more than two years she had suffered physical, emotional and psychological issues
arising from these events in the workplace; and
she believed that she had more than sufficiently met the requirement to show a
sufficient likelihood of success to justify the preservation of the status quo pending
determination of her bullying application.
[16] In response to a question from the Commission regarding the breadth and
enforceability of the fourth interim order which she sought, Ms Hodgkins indicated that the
things which would have the biggest impact on her were changing her reporting lines so that
she no longer reported to Ms Dawson and changing her risk reprisal officer.
Ms Hodgkins also submitted that she wanted to have put in place processes which would give
her some normality back such that she was not so ostracised in the workplace and was able to
do her job in a reasonable manner.
[17] In support of both her substantive bullying application and her application for interim
orders Ms Hodgkins filed with the Commission several hundred pages of documents which
she contended was a sample of the indicative evidence which supported her application and
noted that she intended to provide additional evidence and witness statements as part of the
substantive process.
[18] Ms Hodgkins objected to AFSA’s application for confidentiality orders for a number
of reasons including that:
to grant the confidentiality orders would unreasonably impact on her ability to pursue
and participate in a number of ongoing public interest disclosure matters and other
internal processes related to her bullying application;
she did not have any issues with her name being disclosed;
she would consider the granting of the confidentiality orders to constitute further
bullying, adding that she had asserted for nearly three years that she had been
subjected to and suffered detrimentally because of numerous flawed processes
intentionally undertaken by AFSA and by AFSA seeking numerous methods to
prevent her disclosure of this information by legitimate channels with these tactics
further isolating her in the workplace and taking away any support mechanisms or
mechanisms for redress from her situation;
relying on the decision in Amie Mac v Bank of Queensland Limited; Michelle Locke;
Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman
(BOQ),6 it was not sufficient to justify the making of a confidentiality order merely
because allegations had been made which were embarrassing, distressing or
potentially damaging to reputations; and
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her view was that the process regarding her bullying application should be open and
transparent.
AFSA’s submissions
[19] In its submissions regarding Ms Hodgkins’ application for interim orders AFSA inter
alia set out a chronology of key events and highlighted a number decisions regarding the
issues to be considered in respect of an application for interim orders and the issue of
reasonable management action carried out in a reasonable manner. The decisions included
Quinn v Overland,7 Aly v Commonwealth Securities Limited and others,8 Ms SB,9 and
Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears.10
[20] In summary, AFSA’s position was that:
the Commission could not be satisfied that there was a serious question to be tried
because there was a real prospect that its actions were reasonable management action
carried out in a reasonable manner; and
the balance of convenience did not favour the making of any interim order because it
would unjustifiably interfere with its ability to manage Ms Hodgkins, including
addressing legitimate concerns about her behaviour.
[21] AFSA in its submissions noted that Ms Hodgkins in her application did not provide
any specifics about the alleged bullying behaviours that would fall within the definition of
when a worker was bullied at work under s.789FD of the Act. Despite this, AFSA sought to
distil from Ms Hodgkins’ submissions what appeared to it to be the alleged instances of
bullying behaviour, identifying eight specific instances as well as a number of generalised
allegations and complaints. Specifically, AFSA contended that Ms Hodgkins had not
demonstrated a serious question to be tried, positing that with the exception of one allegation
which involved an external consultant that each of the allegations identified concerned
management actions taken by AFSA. AFSA further contended that in circumstances where
Ms Hodgkins had not set out why these management actions were said to be unreasonable or
why they had been carried out unreasonably and there was evidence before the Commission
suggesting that there was a reasonable basis for the actions, the Commission should not be
satisfied that Ms Hodgkins had a prima facie case establishing the allegations of bullying.
AFSA also noted that many of the allegations raised by Ms Hodgkins had been considered by
the Australian Public Service Commissioner who, in correspondence dated 6 May 2019 (sent
by email on 7 May 2019), concluded that the evidence did not support that Mr McCormick
had breached the APS Code of Conduct in relation to his dealings with Ms Hodgkins.11
[22] As to the balance of convenience, AFSA submitted that the balance of convenience
favoured it because the inconvenience or injury which it would suffer were the interim orders
granted outweighed the injury which Ms Hodgkins would suffer if the interim orders were not
granted. In its submissions in this regard, AFSA drew extensively on the decision in Lynette
Bayly (Bayly).12 AFSA also submitted that:
while the termination of Ms Hodgkins’ employment would prejudice her ability to
pursue her substantive application, most of the interim orders which she sought went
far beyond what would be reasonable and appropriate to protecting her interests in
pursuing her substantive application;
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granting the interim orders sought, particularly as they relate to the Code of Conduct
processes, would involve circumventing reasonable disciplinary action and its
consequences;
the present case could be distinguished from the circumstances in Bayly in a number
of respects, including that making an order in this case would be premature in
circumstances where a sanction delegate was yet to be appointed and there was no
suggestion that Ms Hodgkins dismissal was being contemplated by AFSA;
it would be inappropriate to change Ms Hodgkins’ current supervisory arrangements
for the reasons outlined in Mr McCormick’s letters of 22 March and 1 May 2019 to
Ms Hodgkins which included the following reasons – “staff have reported concerns
about your conduct and behaviour and moving you into your previous role may impact
on work health and safety of staff in that work area” and “Ms Dawson, as the most
senior HR practitioner in AFSA, is better placed than other supervisors to effectively
monitor and manage the challenges associated with your conduct and behaviour in the
workplace”; and
it would not be possible, nor appropriate to change the risk reprisal officer to a person
in the wider APS given s.77(1) of the Public Interest Disclosure Act 2013 (Cth) (the
PID Act) which provides that “[t]he principal officer of an agency … may, by writing,
delegate any or all of his or her functions or powers under this Act to a public official
who belongs to the agency”. (underlining added)
[23] AFSA further submitted that should the Commission decide to make any interim
orders, the orders should not go beyond preserving Ms Hodgkins ability to pursue her
substantive application, i.e. to provide a mechanism for her to seek an interim order should a
sanction delegate write to her advising that they are considering imposing a sanction of
termination of employment. AFSA also submitted that regardless of whether or not the
Commission made an interim order, Ms Hodgkins’ substantive application should be listed
for hearing on an expedited basis.
[24] With regard to its application for confidentiality orders, AFSA submitted
inter alia that:
consistent with the principle of open justice and the aims of the anti-bullying
jurisdiction as set out in the Explanatory Memorandum to the Fair Work Amendment
Bill 2013,13 it had sought minimal orders in an effort to maintain productive working
relationships;
public ventilation of what at this stage were untested allegations in circumstances
where the parties work with each other in a small agency would not be conducive to
the maintenance of productive working relationships; and
it was concerned about the impact which identification of the individuals named in Ms
Hodgkins’ bullying application may have in term of the relationship between those
individuals and those they work with who are not aware of Ms Hodgkins’ application
and the issues involved.
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[25] In support of its application, ASFA relied on the decision in Australian Securities and
Investments Commission v PTLZ, Australian Securities and Investments Commission v VLDP,
Australian Securities and Investments Commission v Administrative Appeals Tribunal and
Another (ASIC)14 which included the following:
“[34] The starting point for any matter in the Tribunal is the legislation from which it
derives its jurisdiction. Because it is not a court, the Tribunal has no common law or
inherent jurisdiction. In the present case the source of jurisdiction is ss 41 and 35.
In most cases the words of the legislation will be a sufficient guide to the Tribunal’s
exercise of jurisdiction. This is particularly so in interlocutory applications where
“expedition” (s 33(1)(b)) assumes particular importance. Naturally, there will be
occasions when decided cases will provide guidance, but the actual words of the
legislation should provide the primary point of reference to which point it may be wise
to return from time to time during the process of deliberation…”15 (Underlining added)
[26] In response to a question from the Commission as to which “actual words” in ss. 593
and 594 the Commission should have particular regard to in determining its application for
confidentiality orders, AFSA responded that the provisions provided the Commission with a
broad discretion and did not limit the factors which the Commission could take into account.
As to the decision in BOQ, AFSA posited that regard should be had to the fact that at this
stage what was being sought in this case were interim as opposed to final orders and that to
date both parties had made a number of allegations in the material they had filed with the
Commission but no witnesses had been called in the matter.
[27] AFSA also responded to aspects of Ms Hodgkins’ submissions regarding its
confidentiality orders application, submitting among other things that:
it was not clear how any confidentiality orders would frustrate further public interest
disclosures; and
granting the confidentiality orders would not diminish the deterrent effect of any
decision issued by the Commission regarding Ms Hodgkins substantive bullying
application.
Consideration of the issues
The interim orders application
[28] The principles to be applied to interim decisions were canvassed by
Commissioner Hampton in Bayly and are set out below:
“5. The principles to be applied to an interim decision
[30] It has not been contended that the Commission is not empowered to make an
interim order in connection with a s.789FC application. That is, it was not suggested
by any party that s.589(2) was not available in an application of this nature or that
s.789FF of the Act represented a bar to the making of an interim order. This is
appropriate and I have proceeded on that basis.
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[31] In Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd, Gooley
DP was dealing with an application for bargaining orders under s.228 of the Act and
made an interim order. The Deputy President said:
‘[5] The AMWU submitted that in deciding whether to issue an interim order,
the Commission must determine if there is a serious issue to be tried and
balance of convenience.
[6] These principles were discussed by Bromberg J in Quinn v Overland where
His Honour said:
“[45] In determining an application for interlocutory relief, the Court addresses
two main inquiries. First, whether the applicant has made out a prima facie
case in the sense that if the evidence remains as it is, there is a probability that
at the trial of the action the applicant will be held entitled to relief. Second,
whether the inconvenience or injury which the applicant would be likely to
suffer if an injunction were refused outweighs or is outweighed by the injury
which the respondent would suffer if an injunction were granted: Australian
Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the
applicant must show that it is more probable than not that the applicant
will succeed at trial. It is sufficient that the applicant show a sufficient
likelihood of success to justify in the circumstances the preservation of
the status quo pending the trial. How strong the probability needs to be
depends upon the nature of the rights the applicant asserts and the
practical consequences likely to flow from the order the applicant
seeks. In that context there is no objection to the use of the phrase
“serious question” to convey the strength of the probability: Australian
Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72],
Gleeson CJ and Crennan J agreeing at [19].”
[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make
an interim decision. S.598(4) of the Act provides that a decision that is
described as an order must be made by order. An example is given in a note
and it refers to a decision that is described as a bargaining order.”
[32] This approach is on all fours with that adopted by Gostencnik DP in Worker A, B,
C, D and E v “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia and others. This matter involved the issuing of
interim orders in a s.789FC anti-bullying application.
[33] I have adopted an approach consistent with the above decisions.
[34] It also appears to me that the consideration of the prima facie case and the
balance of convenience must be assessed having regard to the nature of the substantive
application, the jurisdictional context in which the application is being considered, and
the circumstances of the parties.
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[35] In a matter such as this, I also consider that the nature of the remedy provisions of
s.789FF of the Act should inform the consideration of the request for interim orders
and the nature of any discretion to be exercised. However, the purpose of the interim
orders, including to preserve the capacity to advance the substantive application in
appropriate circumstances, must also be considered.
[36] I would also observe that given the scheme of the Act, interim orders of the
nature being considered here would not be issued lightly. The direct intervention of the
Commission at such an early stage of proceedings should be exercised with
considerable caution. Further, the mere indication that a disciplinary process was
involved in the complaints of workplace bullying, without much more, is unlikely to
trigger the balance of convenience necessary for such action. Of course, each
application must be considered in its own right and circumstances.
[37] As BKI contended, the Commission should be alert to the undesirability of
permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable
disciplinary action and its consequences. In this case, there are some particular
circumstances that have justified the making of the interim order.”16 (Endnotes not
included)
[29] I have adopted the approach outlined above in this case.
[30] In this case I consider that there is a serious issue to be tried both in respect of
Ms Hodgkins’ application and AFSA’s jurisdictional objection. In my view, these
considerations balance each other out.
[31] However, with regard to the first interim order sought by Ms Hodgkins, I am not
satisfied that the balance of convenience warrants making the interim order sought by
Ms Hodgkins to prevent AFSA concluding its Code of Conduct investigation. More
particularly, in the absence of any probative material pointing to AFSA giving consideration
to terminating Ms Hodgkins’ employment it is difficult to see what inconvenience or injury
Ms Hodgkins would suffer in the absence of the interim order being made at this point in
time. A relevant consideration in that regard is that it would be open to Ms Hodgkins to make
a further application for an interim order should the sanction delegate, when appointed,
indicate that they are considering the termination of her employment as the appropriate
sanction in this case.
[32] With regard to the orders sought in respect of Ms Dawson and Ms Denton, I am again
not satisfied that the balance of convenience supports the making of the second and third
interim orders sought by Ms Hodgkins. Relevant considerations in coming to that view
include the fact that Ms Hodgkins will relocate to AFSA’s Brisbane office as of 8 July 2019
and the requirements of s.77(1) of the PID Act. I note also that Mr Denton is not named in Ms
Hodgkins bullying application as a person against whom bullying is alleged (though on 13
May 2019 the Applicant made an application to amend her application to add Ms Denton -
that application is yet to be determined).
[33] As to the final interim order sought by Ms Hodgkins, I note that it is framed so broadly
that it would be unenforceable and Ms Hodgkins’ previously mentioned response to a
question from the Commission that the things which would have the greatest impact on her
were changing both who she reported to and her risk reprisal officer. Against that background,
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I am not satisfied that the balance of convenience supports the making of the fourth interim
order sought by Ms Hodgkins.
The confidentiality orders application
[34] The decision in ASIC in my view provides little practical assistance in this matter
given that the terms of ss.593 and 594 provide no guidance as to when the broad discretion
provided for in those provisions is to be exercised. More relevant in my view to AFSA’s
application for confidentiality orders is the decision in BOQ where Vice President Hatcher
dealt with the issue of an application to de-identify the respondents in a bullying application.
At paragraph [6] of that decision, Hatcher VP sets out the main features of the principle of
open justice as summarised in the NSW Supreme Court decision (Pembroke J) in Seven
Network (Operations) Limited & Ors v James Warburton (No 1).17 It is not necessary to
repeat that summary here. Of particular relevance to the application before me, Hatcher VP in
BOQ explored the application of the principle of open justice in relation to the anti-bullying
jurisdiction established by Part 6–4B of the Act. Specifically, Hatcher VP made the following
observations:
“[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW
Act, it is apparent that the purpose of the legislation, namely to ensure that workers can
continue in their engagements at work free from the risk to health and safety caused by
workplace bullying, would be defeated if the public disclosure of sensitive information
during the course of anti-bullying proceedings would be likely to have the effect of
rendering the relevant worker's continuing engagement unviable. However it is equally
apparent that, in accordance with the open justice principle, it is not sufficient to justify
the making of a non-disclosure order merely that allegations have been made which are
embarrassing, distressing or potentially damaging to reputations. In an anti-bullying
matter, as with other types of proceedings before the Commission such as unfair
dismissal remedy applications, the findings of the Commission concerning allegations
which have been made will usually appropriately resolve concerns about
embarrassment, distress or damage to reputation. If findings are made that an
applicant's allegations of bullying behaviour are unfounded, then the position of
persons alleged to be the perpetrators of such bullying will be vindicated and the
outcome will redound upon the applicant. However if allegations of bullying are found
to be substantiated, then public identification of the perpetrators of that bullying is
normally appropriate. In either case, the public scrutiny involved will have a deterrent
effect that is in the public interest - in the former case against the making of unfounded
allegations and in the latter case against engagement in bullying behaviour.”
(Underlining added)
[35] In this case Ms Hodgkins did not object to her name being published. While I note
AFSA’s submissions in support of its application, based on the material before the
Commission it appears that Ms Hodgkins’ relationship with those named in her application is
already quite strained. In those circumstances, I fail to see how granting the confidentiality
orders sought by AFSA would assist in maintaining productive working relationships between
Ms Hodgkins and those named in her application. Similarly, in the absence of any probative
evidence I consider it unlikely that not granting the confidentiality orders will result in some
broader negative impact on working relationships within AFSA and particularly between the
named individuals and those that they interact with in the workplace.
[2019] FWC 3344
14
[36] Drawing on the decision in BOQ, these considerations when taken together do not
outweigh the principle of open justice or support the making of orders sought by AFSA.
Conclusion
[37] For all the above reasons I decline to make the interim orders sought by Ms Hodgkins
or the confidentiality orders sought by AFSA. As previously noted, it is open to Ms Hodgkins
to make a further application for an interim order should the sanction delegate, when
appointed, indicate that they are considering the termination of her employment as the
appropriate sanction in this case.
[38] In terms of next steps, Directions and a notice of listing will be issued in conjunction
with this decision in respect of Ms Hodgkins’ substantive bullying application. While those
Directions have regard to the views of the parties as expressed in conference following the
hearing on 10 May 2019, they provide for an expedited hearing of Ms Hodgkins’ bullying
application. The timetable necessarily requires both Ms Hodgkins and AFSA to clearly set out
the grounds they rely on in support of their respective submissions and that any evidentiary
material that they seek to rely on is directed to establishing/supporting those grounds. In that
context, both parties should be particularly judicious as to the material they seek to rely on in
respect of their submissions. To that end, I note that the unstructured provision of copious
numbers of documents in circumstances where those documents are not linked to any
particular submission/evidentiary point is likely to be of little assistance to the Commission in
determining the substantive application and AFSA’s jurisdictional objection.
Appearances:
K. Hodgkins on her own behalf
C. Mann for the Australian Financial Security Agency
Hearing details:
2019
Canberra
May 10.
Printed by authority of the Commonwealth Government Printer
PR708314
THE FAIR WORK COMMI AUSTRALIA DEPUTY PRESIDENTS SEAL SION THE
[2019] FWC 3344
15
1 Form F72 – Application for an order to stop bullying at Question 2.1
2 See page 3
3 Transcript at page 22, lines 22-29
4 Ibid at page 42, lines 14-47
5 [2018] FWC 4147 at [99]
6 [2015] FWC 774
7 (2010) 199 IR 40
8 [2015] FWCFB 6895
9 [2014] FWC 2104
10 [2018] FWCFB 4174
11 AFSA documents at page 570
12 [2017] FWC 1886
13 See paragraph 119
14 (2008) 48 AAR 559
15 Ibid at [34]
16 [2017] FWC 1886 at [30]-[37]
17 [2011] NSWSC 385
