1
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Horticulture Award 2020
(AM2020/104)
Agricultural industry
JUSTICE ROSS, PRESIDENT MELBOURNE, 24 MARCH 2021
Horticulture Award 2020 – application for confidentiality order.
[1] On 16 December 2020, the Australian Workers’ Union (AWU) made an application to
vary the Horticulture Award 2020 (the Horticulture Award). The application was published on
the Commission’s website on the same day. A separate webpage was established for the
matter and subscribers to the Horticulture Award were notified of the application.
[2] Directions for the filing of submissions and evidence were issued on 18 December
2020. Amended directions were issued on 5 March 2021.1
[3] In accordance with the amended directions, the United Workers Union (UWU) filed
submissions and 4 witness statements on 19 March 2021. The UWU also filed an application
for a confidentiality order pursuant to ss.593 and 594 of the Fair Work Act 2009 (the Act) in
relation to one of the witnesses (Witness 1).
[4] A copy of the statement of Witness 1 with the name and address of the witness
redacted has been published on the Commission’s website.2
[5] The order sought by UWU is set out below:
1. The name and address of the person who is described as Witness 1 in the witness
statement filed by the United Workers’ Union in this proceeding (the Confidential
Information) are to be kept confidential and no person shall publish or otherwise
disclose the Confidential Information.
2. No person shall be permitted to access any document which contains the
Confidential Information, or any document from which the Confidential
1 [2021] FWC 1213.
2 UWU, witness statement (redacted), 22 March 2021.
[2021] FWC 1593
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-subandf1-uwu-190321.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1213.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-uwu-190321.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1213.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-dir-181220.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-application-awu-151220.pdf
[2021] FWC 1593
2
Information may be discovered, on the file of the Fair Work Commission
(Commission) in this proceeding.
3. Any part of the hearing of this proceeding in which Witness 1 is required to give
evidence will be held in private, although a party to this proceeding will not be
excluded from the hearing.
4. Any transcript of this proceeding must not be published to the extent that it records
the Confidential Information.
5. Any decision of the Commission in this proceeding will not record the
Confidential Information.
[6] The grounds upon which the UWU are seeking a confidentiality order are as follows:
The witness is a Protection Visa Applicant and is entitled to non-disclosure of their
personal details. They are a vulnerable person and disclosure of their identity creates
a risk of reprisal and reveals their location. Section 91X of the Migration Act 1958
(Cth) creates a presumption of non-publication in protection-related proceedings in
all Courts of Federal jurisdiction. Although this is not a protection related
proceeding, the UWU submits that the same reasoning applies to facilitate the
administration of justice, that is, that the witness be entitled to anonymity so as
ensure that their identity and location is not disclosed in Australia and their home
country, thereby mitigating the risk of any reprisal.
The witness works in the horticulture industry in a rural small community and holds
genuine fears not being able to secure further employment in that community if their
identity and address is revealed to any extent.
[7] The application for a confidentiality order will be considered at the mention listed on
23 June 2021 at 9.30 am.
[8] Interested parties are directed to have discussions in relation to the order sought prior
to the mention and to notify the Commission of the outcome of these discussions.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR728045
