PR732760

FAIR WORK COMMISSION

ORDER

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Family and domestic violence leave review 2021
(AM2021/55)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 12 AUGUST 2021

Family and domestic violence leave review–Order prohibiting or restricting the publication of confidential documents.

Pursuant to s.594 of Fair Work Act 2009 (Cth) the Commission orders as follows:

Name of order

[1] This order will be known as Confidentiality Order 1 in AM2021/55.

Definitions

[2] In this order:

(a) ACTU means the Australian Council of Trade Unions

(b) Commission means the Fair Work Commission

(c) confidential document means a document marked confidential by the Commission pursuant to paragraph [3] or [8] of this order

(d) confidentiality undertaking means an undertaking in the terms set out in Schedule A to this order

(e) employer party means the Australian Industry Group, Australian Business Industrial, NSW Business Chamber or Australian Chamber of Commerce and Industry

(f) proceeding means matter AM2021/55

(g) sensitive information means any information from which an individual is reasonably identifiable and which relates to the individual having experienced family or domestic violence.

Restriction on access to and disclosure of confidential ACTU witness statements

[3] If a witness statement lodged in the proceeding by the ACTU contains sensitive information, the ACTU will:

(a) notify the Commission and the employer parties that the document contains sensitive information

(b) request that the Commission mark the document as confidential, and

(c) provide the Commission with a version of the document for publication by the Commission from which the sensitive information has been redacted.

[4] Access to a confidential document is restricted to:

(a) Members of the Full Bench in the proceeding and employees of the Commission who need access to the document in the course of their duties

(b) employees and legal representatives of the ACTU

(c) employees and legal representatives of an employer party who have direct responsibility for or involvement in the conduct of the proceeding, provided that:

(i) the ACTU is notified of the names of each such person who will be given access to the document, and

(ii) each such person signs a confidentiality undertaking before being given access to the document

(d) employees and legal representatives of an employer identified in the confidential document (identified employer) that an employer party wishes to contact for purposes of the proceeding, provided that:

(i) the employer party first discusses with the ACTU how it intends to proceed

(ii) the ACTU is notified of the names of each employee and legal representative of the identified employer who will be given access to the document, and

(iii) each such person signs a confidentiality undertaking before being given access to the document

(e) a person granted access to the document by the Commission pursuant to paragraph [7] of this order.

[5] The Commission will not publish a confidential document on its website and except as provided for in this order will keep the document confidential.

[6] A person must not publish a confidential document or any sensitive information from a confidential document except:

(a) to a person permitted access to the document under paragraph [4] of this order, or

(b) as permitted under a confidentiality undertaking signed by the person.

[7] A person who does not have access to a confidential document under paragraph [4] of this order may apply to the Commission to obtain access to the document. The Commission will determine the application after giving the ACTU and other interested parties an opportunity to be heard.

Restriction on disclosure of sensitive information from confidential documents

[8] If a party lodges a written submission, written evidence or another document in the proceeding that contains sensitive information from a confidential document, the party must:

(a) notify the Commission and the other parties that the document contains sensitive information from a confidential document

(b) request that the Commission mark the document as confidential, and

(c) provide the Commission with a version of the document for publication by the Commission from which the sensitive information has been redacted.

[9] If a party other than the ACTU wishes to refer to sensitive information from a confidential document in the course of the hearing of the proceeding or elicit oral evidence including such information, the party must notify the ACTU in advance in sufficient time for the ACTU to make an application to have the hearing conducted in private.

[10] During the course of the hearing(s) in this matter, the ACTU may apply for further orders prohibiting or restricting publication of sensitive information pursuant to s.594 of the Act. This may include an application that a witness give evidence in private or that redactions are made from transcript before it is published on the Commission’s website.

Effect of order and leave to apply

[11] This order remains in force until further order of the Commission.

[12] Leave is granted to apply generally.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Schedule A

Confidentiality Undertaking

I, ___________________ [name], of _________________________ [employer party/identified employer/other] agree that:

(1) In this confidentiality undertaking:

(a) confidential document means a document marked confidential by the Fair Work Commission pursuant to Confidentiality Order 1 in matter AM2021/55

(b) sensitive information means any information from which an individual is reasonably identifiable and which relates to the individual having experienced family or domestic violence, and

(2) Subject to clause (3), I will:

(a) keep strictly confidential any confidential document and any sensitive information from a confidential document that I obtain access to

(b) not copy any confidential document, and

(c) either return to the ACTU or destroy any confidential document (including any copy) in my possession or control at the conclusion of the proceeding.

(3) I may disclose a confidential document or sensitive information from a confidential document (including giving a copy of a confidential document) to:

(a) a barrister acting for the ___________________ [employer party/identified employer] in the proceeding

(b) a person permitted access to the document under paragraph [4] of Confidentiality Order 1 in AM2021/55, or

Signed

Date