1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Luke Maxitanis
v
Department of Justice and Community Safety
(U2019/7624)
COMMISSIONER CIRKOVIC MELBOURNE, 19 FEBRUARY 2020
Application for an unfair dismissal remedy – application for confidentiality orders.
[1] This is an application by the Department of Justice and Community Safety (the
Department) seeking an order (the Order) pursuant to section 594 of the Fair Work Act 2009
(the Act), the effect of which de-identifies personnel, prisoners and procedures adopted by the
Department that it submits require confidentiality.
[2] The Department applied for the Order in the context of a substantive application for
unfair dismissal made against it by Mr Luke Maxitanis. The substantive application is
currently before the Fair Work Commission (the Commission).
[3] The application under section 594, the subject of this decision, is consented to by Mr
Maxitanis in so far as it relates to the personal information of a particular prisoner, but
otherwise “neither consents nor opposes” the balance of the orders sought.1
Statutory provisions
[4] The Department seeks confidentiality orders pursuant to section 594(1) of the Act.
Section 594(1) provides as follows:
“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;
1 Email to Chambers dated 3 December 2019.
[2020] FWC 902
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 902
2
(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.”
Legal principles
[5] In Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 (“Amie Mac”), a
case which concerned an application for orders to stop bullying, Vice President Hatcher
helpfully set out the principles of open justice as well as what is to be considered in an
application for confidentiality orders.i These are principles which have been adopted by the
Commission on several occasions since.ii
[6] I have considered the principles of open justice which are clearly relevant to the
exercise of the discretion to make an order under section 594(1) of the Act. However, as was
observed by Deputy President Gostencnik in Bowker & Ors v DP Work Melbourne Limited
t/a DP World & Ors “…these considerations are not 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…”iii
Consideration
[7] The parties do not dispute the power of the Commission to make the orders sought
pursuant to section 594(1) of the Act.
[8] I have also taken into account sections 594 and 577 of the Act and the authorities
wherein the principles of open administration of justice have been considered by the
Commission.iv I also considered the submission of the Department detailing the bases for the
Order and in particular the following:
the evidence of Mr Ivan Calder as it related to the risk to the effectiveness of
internal procedures should such information become publicly accessible;
the duty of care owed by the Department, under the Health Records Act 2001 (Vic)
to maintain confidentiality of prisoner health records;2 and
that Mr Maxitanis is not prejudiced by the making of the Order.3
[9] The question of whether to make an order of the kind sought by the Department
involves a consideration of open justice and fairness, taking into account the effects of the
granting of the order on each side, including in some cases persons who are not parties to the
proceeding.
[10] I am also persuaded that the purpose of the Order is to prevent material damage to
private or public interest, in this case the effectiveness of the internal procedures of the
Department, rather than an attempt to shield the Department from embarrassment, discomfort
or inconvenience.
2 Respondent’s Outline of Submissions Concerning the Section 594 Application dated 2 October 2019 at [7].
3 Ibid at [8].
[2020] FWC 902
3
[11] I am satisfied that the appropriate balance is struck by granting the Order and that in
doing so, the principles of open justice have not been undermined.
[12] For the reasons above, I am satisfied it is appropriate to grant the Order sought by the
Department.
Conclusion
[13] I will issue the order separately to this decision.
COMMISSIONER
Appearances:
Mr L Howard of Counsel for the Department
M R Millar of Counsel for Mr Maxitanis
Hearing details:
9 October 2019, 10 October 2019, 29 October 2019 and 15 November 2019
Final written submissions:
Email from Applicant’s representative dated 3 December 2019; and
Respondent’s Supplementary Submissions Concerning the Section 594 Application
filed 20 December 2019.
Printed by authority of the Commonwealth Government Printer
PR716873
i At [6] – [13].
ii See for example Application by Krcho [2020] FWC 181 at [11].
iii Bowker & Ors v DP Work Melbourne Limited t/a DP World & Ors [2015] FWC 4542 at [15].
iv See for example Amie Mac; MTCT Services Pty Ltd v CEPU & Ors [2019] FWC 1422 at [19] citing Les Laboratories
Servier v Apotex Pty Ltd [2009] FCA 2097 at [15] – [16].
OF THE FAIR WORK COMMISSION AUSTRALIA THE SEALO
