DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sharon Bowker; Annette Coombe; Stephen Zwarts

v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

Application for an FWC order to stop bullying – Application for confidentiality order.

Introduction

[1] DP World Melbourne Ltd (DP World) has applied for an order to be made pursuant to s.594 of the Fair Work Act 2009 (the Act) principally directed to the applicants’ legal representatives, restricting the publication of certain documents attached as annexures to a witness statement of Mr Glen McCluskey (McCluskey statement) dated 22 May 2015 and filed in these proceedings pursuant to procedural directions earlier made. The McCluskey statement and the annexures are yet to be admitted as evidence in these proceedings.

[2] The applicants in these proceedings oppose the making of such an order and say that the need for confidentiality has not been made out and, in any event, an order is unnecessary because DP World's concerns about the use and disclosure of particular documents are adequately protected by the implied undertaking to which the applicants and their legal representative are subject to as discussed in Harman v Secretary of State for the Home Department 1 (Harman). To the extent that there is any doubt about whether the Harman implied undertaking applies in matters before the Fair Work Commission (Commission), the applicants have confirmed by undertaking in writing to DP World that they will be bound.

[3] The Maritime Union of Australia (MUA), which is also a party to these proceedings, through its legal representatives has given an undertaking to DP World in substantially the same form as the orders DP World seeks.

Consideration

[4] As I have indicated above the order sought by DP World seeks to restrict the publication of a number of documents annexed to the McCluskey statement. The basis on which it is said that the order is necessary and justified as follows.

[5] DP World maintains that the documents and information contained therein, that is sought to be protected, relates to particular allegations about conduct in the workplace which has been raised on a confidential basis by the particular employees with DP World. The documents identify the employees that have been involved in investigations into various allegations to date, and the specific information provided by them to DP World in those investigations.
 
[6] DP World submits that the identity of employees who participated in investigations and the information disclosed by them is not relevant to the question of whether the relief sought by the Applicants should to be granted.
 
[7] Furthermore, DP World submits that absent an order, given the number of employees and union representatives who are named as parties in the proceeding, if all individual named parties are to be provided with copies of the relevant documents (or the information set out therein), there is a real risk that the information provided to DP World during its investigations, and the details of the employees who have provided the information, may be disclosed among DP World’s workforce.
 
[8] DP World submits, without suggesting that any of the parties to the present proceeding would engage in inappropriate conduct, in the past, documents filed in Federal Court proceedings have been distributed among the workforce at site level, such that the evidence of those matters was disclosed to people who were not directly concerned in the issues before the Court.  DP World says that when such disclosure had occurred previously, it was not possible to identify how this had occurred. 
 
[9] According to DP World, the documents in relation to which the restriction order is sought are confidential documents relating to workplace investigations at DP World. If these documents and the information in them are disclosed, there is a risk that it could undermine both continuing workplace investigations of DP World and employee confidence in the investigation policies and procedures more generally.

[10] The applicants submit that the order should not be made. They say that the paramount consideration in determining whether the order should be made is the principle of open justice, including the open disclosure of the document relied upon by a party in these proceedings.

[11] The applicants submit that their case is that they have been subjected to workplace bullying because they have resisted the acknowledged culture of silence at DP World. They have sought to support each other and their circumstances are intertwined and not separable. The applicants say that the manifestation of the culture of silence at DP world is that an unidentified group considers that there is, and should continue to be, a system of authority and control which stands apart from the employer and any employee who fails to adhere to that system should be subjected to retribution. The applicants submit that it would work to the advantage of those who perpetuate this view that confidentiality orders are issued. Consequently, the orthodox principle of open justice tells against the making of the order sought by DP World.

[12] The applicants submit that even if the need for confidentiality had been made out by DP World, which they do not accept, the order should nonetheless be refused if it has the effect of frustrating the administration of justice. In any event, the applicants submit, orders of the kind sought are usually made in cases where there was a need to protect genuine trade secrets or commercially confidential material, matters on which it is usually unnecessary for legal representatives to take instructions in the furtherance of their clients cases. However, the material that would be the subject of the order sought by DP World is not of that kind. Moreover, the restrictions that would be imposed by the order sought would impede the applicants’ legal representative’s capacity to take instructions from the applicants and thereby provide DP World with a forensic advantage over the applicants. In the result, so it was submitted, the administration of justice would be frustrated.

[13] Finally, the applicants submit that a Harman undertaking, which their legal representatives have already given, is sufficient and that DP World’s reliance on the confidentiality provisions of its workplace policy is not a basis for the making of the order.

[14] Section 594 (1) of the Act vests a discretion in the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission if satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.

[15] Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under section 594 (1) of the Act. However, these considerations are not to 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.

[16] We are not here concerned with an application to restrict the publication of the identity of any party to those proceedings, or to avoid bringing about some embarrassment to such party. Rather, this application is concerned with protecting the identity of employees who are not parties to this proceeding and are not presently proposed to be witnesses in the proceedings, who have given information to DP World on a confidential basis pursuant to its workplace behaviour policy that assures confidentiality to such employees, as well as the information given by those employees to DP World during its investigations.

[17] The applicants do not dispute that the information to which the order is sought relates was provided to DP World by various employees on the basis that would maintain confidential. It is also not disputed that DP World’s workplace behaviour policy assures confidentiality so far as is practicable in the complaints and investigation process and that complaints about unacceptable workplace behaviour will be treated confidentially. In the circumstances I am satisfied that the information in the documents is of a confidential nature.

[18] In my view, making an order of the kind of sought by DP World does not undermine the principle of open justice. As I have already indicated, the order sought is not directed to preventing the publication of the identity of the party to these proceedings or any witness to the proceedings. The order sought does not seek to shield DP World from disclosure of the allegations made against it by the applicants or from any embarrassment, discomfort or inconvenience that might arise from the public scrutiny of the allegations made. Nor does the order seek to limit disclosure or scrutiny of DP World’s workplace behaviour policy.

[19] Given that certain employees provided information to DP World pursuant to an assurance of confidentiality, I accept that there is a real risk of undermining the confidence that those employees have in the workplace behaviour policy if the employees’ identities, or the information that they provided to DP World during the investigation is disclosed, particularly in the workplace. Moreover, given the allegations made by the applicants in this proceeding relate to conduct to which they have been subjected by some DP World employees because of complaints they have made or information thought to have been provided to DP World, the applicants should recognise that there is a risk that similar conduct about which they comply, might be directed at the employees whose identity DP World seeks to protect. I do not accept that the culture of silence will be perpetuated if an order is made. The employees for whom protection is sought have already provided information to DP World. A diminution of confidence in the integrity of the investigation process under DP World’s workplace behaviour policy is more likely to have that effect. An order of the kind sought will minimise that risk.

[20] Ultimately, the question whether to make an 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. It is also appropriate to take into account the interests of persons who are not parties to this proceeding, but who have given information to DP World under an assurance of confidentiality. I am satisfied that an appropriate balance is struck by the making an order of the kind proposed. I do not accept that an order of the kind sought is contrary to the proper administration of justice because it will give DP World a forensic advantage or inhibit the capacity of the applicants to properly prepare and conduct their cases. Each of the applicants will have access to relevant material as it affects their respective case. It is not the point that their cases are being heard together or that the applicants support one another. Their legal advisers will have access to all of the material, and any difficulties that arise may be brought to my attention with notice to DP World, for resolution.

[21] I am satisfied in the context of these proceedings, having regard to that nature of the confidential information, that it is appropriate to make an order restricting publication of the documents identified by DP World. The order will appropriately protect the identities of non-parties to this proceeding and the information that these non-parties have given DP World during confidential workplace investigations. The order will also avoid the prospect of compromising any on-going investigations and will maintain confidence in the confidential investigation procedures of DP World’s workplace behaviour policy.

Conclusion

[22] I am satisfied that the matters contained in the documents identified as particular annexures to the McCluskey statement are confidential in nature. For the reasons given I consider that an order restricting the publication of those matters is desirable and I make such an order, which is separately issued in PR569103.

DEPUTY PRESIDENT

Appearances:

T. Lange for the applicants

Y. Bakri of Counsel for the The Maritime Union of Australia

H. Skene for DP World

Hearing details:

Melbourne.

2015

30 June

 1   [1983] 1 AC 280

Printed by authority of the Commonwealth Government Printer

<Price code A, PR569102>