REASONS FOR DECISION

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

Worker A, Worker B, Worker C, Worker D and Worker E
(AB2016/208)

Application for an FWC order to stop bullying; reasons for confidentiality order.

[1] On 15 August 2016 I made a confidentiality order 1 in respect of an application made by Worker A, Worker B, Worker C, Worker D and Worker E (Applicants) under s.594 of the Fair Work Act 2009 (the Act) principally restricting the publication or disclosure of the names or addresses of the Applicants and any other document from which that information may be discovered. In so doing, I indicated that I will publish my reasons for the decision to make the order in due course. These are my reasons for that decision.

[2] The principal application to which the application for a confidentiality order relates is an application by the Applicants pursuant to the Act for an order under s.789FF to prevent the workers from being bullied at work by an individual or group. Programmed Skilled Workforce Limited (Programmed) is involved in an industrial dispute with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) in connection with its acquisition of a contract to provide certain services at the Carlton & United Breweries site (Site) in Abbotsford, Victoria.

[3] The dispute centres around terms and conditions of employment of persons employed by Programmed, and the employment by it of persons whose employment was terminated by the previous contractor, on redundancy grounds. The dispute remains unresolved and the picket activity continues.

[4] The conduct about which complaint is made in the principal application involves allegations about the conduct or behaviour of persons who are participating in a picket outside of, and adjacent to, the entrance to the Site.

[5] The Applicants do not wish to be identified as applicants in the proceeding for reasons which include concerns about an escalation in the conduct about which they complain directed towards them.

[6] The AMWU, the CEPU and other respondents named in the principal application (collectively “the Respondents”) oppose the making of such an order and say that the need for a confidentiality order is “grossly unfair and denies us [the Respondents] proper procedural fairness in defending this case”. 2 Furthermore, the Respondents submit that it will be necessary during the course of the proceeding to obtain instructions from people at the picket about evidence given by the Applicants at the Fair Work Commission (Commission), and that the order sought would restrict their capacity to do so.

[7] As I have indicated above, the order sought by the Applicants seeks to protect their names or addresses from being published and/or discovered. The basis on which it is said that the order is necessary and justified is as follows.

[8] The Applicants maintain that the documents and information contained therein, that is sought to be protected, relates to particular allegations about conduct in the workforce (noting for present purposes that the conduct alleged is likely to be denied or is said to be conduct which is not “at work”) which has been raised on a confidential basis by the particular workers.
 
[9] The Applicants outline three key considerations in support of their application for a confidentiality order. First, the Applicants maintain that it has been a consistent objective of the Respondents’ to try and identify the Applicants. 3 The Applicants submit that absent a confidentiality regime, the result of the Applicants seeking the assistance of the Commission to address the bullying conduct would be to achieve one of the very objectives of that conduct and expose the Applicants to at least a real risk of heightened bullying behaviour.4

[10] Secondly, the Applicants submit that absent an order, they are subjected to an escalation in the conduct about which they complain directed towards them. The Applicants submit that there is a real risk that that information would be used as further leverage and as a tool to apply further pressure to them. 5

[11] Thirdly, the Applicants submit that the disclosure of their identity serves a very “limited forensic benefit” and that the Respondents are still able to present their case without such information, 6 just as it has up to date without such information.7 They submit that it has not been necessary for the Respondents to know the identities of the Applicants to engage in the conduct thus far and it is not necessary for the Respondents to know their names in order to respond to it.8 The Applicants maintain that the legal representatives of the Respondents will have access to all materials, subject to an undertaking not to disclose them,9 and that the relevant individual Respondents engaged in the conduct can be tested in cross-examination appropriately, without the Respondents needing the additional information.10
[12] At the time of hearing this application, four of the five Applicants had filed a confidential statement with the Commission and those statements have been provided to the legal representatives of the Respondents on the basis of the confidentiality undertakings provided by the Unions. The Respondents’ position is that the statements filed with the Commission are inadequate to indicate that the workers are seeking to participate in the proceeding, as the statements, they say, are conditional. 11

[13] The Respondents submit that not knowing the identity of the Applicants “defies every precept of a party that’s accused of misconduct under a statute of being able to know who is the accuser and what are the particulars that that accuser says the respondent or any of them did to that accuser”. 12

[14] The Respondents stress the importance of obtaining the name of the Applicants in order to “connect the individual with the allegation”. 13 The Respondents submit that there are aspects of this “whole matter that need to be explored and the people that we have to talk to, to get instructions, have to be able to connect activities and allegations with an individual”.14

[15] The Respondents say that the confidentiality regime sought by the Applicants is unsatisfactory as it ties their hands in a way which is “grossly unfair and denies [them] proper procedural fairness in defending this case”. 15 I tend to agree, the orders sought by the Applicants, would, in my view, unduly restrict the capacity of the legal representatives of the Respondents to properly prepare and prosecute their respective defences to the allegations that are made.

[16] Section 593 of the Act relevantly provides:

“593 Hearings

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(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.”

…”

[17] Section 594 of the Act relevantly provides:

“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.

…”

[18] 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. Section 594(3) allows for the making of orders relating to the extent to which a hearing is held in public, the publication of the identity of persons appearing at a hearing and the evidence given in a hearing.

[19] Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under either or both of ss.593 and 594 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.

[20] The principle that Commission proceedings conducted by way of a hearing, subject of a contrary order, must be held in public enshrined in s.593(2) is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to the Commission which is given broad powers, for the forum in which those powers are to be exercised not to be a cloistered process. Hearings held in public and the publication of decisions arising therefrom properly exposes the Commission to public scrutiny, which in turn is calculated to enhance greater public confidence in the Commission, and the exercise by the Commission of certain of its powers.

[21] That said, the powers to make orders under ss.593(3) or 594(1) are not intended to lie dormant. The powers are there to be exercised, albeit infrequently and with caution. The purpose of their exercise is to secure to the Commission the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or a person affected by a proceeding is either properly entitled to preserve or should be permitted to preserve in order that that person may effectively participate in the proceeding. The capacity of a person to effectively participate in a proceeding before the Commission may be affected, for example, by a well-founded or reasonable concern held by the person that the disclosure and publication of that person’s name or address might result in some form of retribution, harassment or intimidation.

[22] The Applicants are concerned that if they are identified as applicants in the proceeding for reasons which include that there might be an escalation in the conduct about which they complain directed towards them. I accept that the concerns are genuinely held and are not without some foundation. I consider that the risk of escalating conduct is not merely theoretical. Whilst a named party to this proceeding might not escalate or repeat the conduct alleged (noting for present purposes that the conduct alleged is likely to be denied or is said to be conduct which is not “at work”), there is a risk in my view, of escalating conduct towards an applicant by persons at the picket who are not named in this proceeding, should the identity of the applicant be disclosed. In my view, it matters not for the purposes of the making of the order that I propose to make, that the risk of escalating conduct might not relate to conduct which is “at work”. In my view, this risk presents an unjustified hurdle in the capacity of the Applicants to properly or effectively participate in this proceeding. I therefore consider it appropriate to make an order designed to address the concerns and I will make an order which protects the Applicants’ anonymity in the sense that there should not be a disclosure of their respective names or addresses. The order I make will not in my view, unduly restrict the capacity of the legal representatives of the Respondents to properly prepare and prosecute their respective defences to the allegations that are made. In any event, should that not be the case, there will be liberty to apply.

[23] I consider that the order I make 16, strikes an appropriate balance taking into account the concerns of the Applicant’s and the interests of the other parties to this proceeding. Moreover, I consider that in the present case, the interests of open justice must give way to the desirability to mitigate the risk of escalating inappropriate conduct directed towards the Applicants.

Conclusion

[24] For the reasons given I consider that an order restricting the publication or disclosure of the names and addresses of the Applicants and any of other documents from which that information may be discovered should be made.

[25] An order has be made and separately issued in PR584235.

[26] On 18 August 2016, I made an interim order prohibiting certain conduct being directed towards inter alia, Workers A to E. The beneficiaries of the interim order was a collective group of workers described as “Programmed Workers”. The broad protective coverage of the interim order was necessary to ensure that the integrity of the confidentiality order I had earlier made was not undermined.

Post script

[27] On 13 September 2016 notices of a representative commencing to act were filed in the Commission and served on the Respondents on behalf of Worker B, Worker C and Worker D.

[28] On 4 October 2016 the solicitors now acting for these workers applied to have the order that I made varied on the grounds that:

• Workers B, C and D are persons affected by the interim order given that the order seeks to minimise the risk to their health and safety;

• the industrial dispute involving Workers B, C and D and the Respondents to the interim order at the Abbotsford Brewery site is unresolved and the picket remains in place; and

• following the change in their employer, Workers B, C and D continue to work at the Abbotsford Brewery site.

[29] Worker B, Worker C and Worker D are each now employed by CUB Pty Ltd and continue to perform work at the Site in that capacity. The solicitors acting for Worker A and Worker E gave their consent to the amendment of the interim orders given the change in employment of three of the Applicants. The Respondents’ position as to the application for amendment is that they do not consent to the proposed variation, they reserve their rights but they do not make any submission in relation to the proposed variation.

[30] In the circumstances, I considered that it was appropriate to deal with the application to vary the order on the papers. I consider that the utility of the earlier interim order made would be undermined if the application for a variation was not granted. The three workers on whose behalf the application is made would cease to have the protection of the interim order, the result of which would be to enliven the very risk the interim order sought to mitigate. There is no suggestion that the risk earlier identified, is no longer evident or real. In the circumstances it is appropriate that the interim order be varied.

[31]I have separately published a variation order in PR586136 and a consolidated order in PR586137.

DEPUTY PRESIDENT

Appearances:

Mr H Skene, Solicitor for the Applicants.

Mr H Borenstein, Counsel for the CEPU and the AMWU.

Hearing details:

2016.

Melbourne.

August 12.

 1   PR584235.

 2   Transcript PN98.

 3   Outline of Submissions dated 12 August 2016 at [8].

 4   Ibid at [9].

 5   Transcript PN62.

 6   Transcript PN28.

 7   Transcript PN59.

 8   Transcript PN63, Outline of Submissions dated 12 August 2016 at [13].

 9   Outline of Submissions dated 12 August 2016 at [14].

 10   Ibid.

 11   Transcript PN10.

 12   Transcript PN89.

 13   Transcript PN94.

 14   Transcript PN95.

 15   Transcript PN98.

 16   PR584235.

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