Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2017] FWC 1708] and Order of Commissioner Wilson at Melbourne on 27 March 2017 in matter number C2016/6286.

[1] On 27 March 2017, Commissioner Wilson issued an interlocutory Decision 1 in which he decided not to issue an ongoing confidentiality order pursuant to sections 593 and 594 of the Fair Work Act 2009 (Cth) (“the Act”) in relation to all aspects of the proceedings between the United Firefighters’ Union of Australia (“the Appellant”) and Metropolitan Fire and Emergency Services Board (“the Respondent”).

[2] On 28 March 2017, the Appellant lodged a Notice of Appeal, appealing against the Decision and subsequent Order 2 made by Commissioner Wilson. On 30 March 2017, we issued an Order3 staying the Decision and Order made by Commissioner Wilson pending the determination of the appeal.

[3] We heard the appeal on 4 May 2017 and reserved our Decision. At the hearing, Mr E. White, of Counsel, sought permission to appear for the Appellant and Mr J. Tracey, of Counsel, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.

The Decision at First Instance

[4] The Commissioner noted that the requirement for the continuation of the confidentiality order was put forward by the Appellant for several reasons. In particular, that the dispute was about the Respondent’s process for investigation of allegations against the employee; that the investigation was incomplete and unfinished; that while there will be prejudice to the employee concerned with an open hearing, there will be none to the Respondent if the matter is dealt with confidentially; that there is no forensic purpose relevant to the investigation for there to be a public proceeding; that the relevant industrial and political environment, as well as the allegations themselves, will lead to the matter attracting significant media attention; and that there will be irreparable damage to the investigative process, the reputation and the circumstances of the firefighter concerned, as well as the Respondent.

[5] The Commissioner held that there was no question that the public conduct of these matters would be embarrassing to the employee concerned, however, noted that this was not unique to the circumstances of this matter or any other application made to the Commission. Thus, the Commissioner concluded that the mere existence of embarrassment to a person involved in proceedings before the Commission was not sufficient for an order to be made for ongoing confidentiality.

[6] Moreover, the Commissioner found there was a strong public interest in this matter and, as such, the Commissioner was satisfied that the interests of open justice went against making an ongoing confidentiality order and revoking the order in place at the time.

The Appeal

[7] At the heart of the appeal was whether an ongoing confidentiality order in relation to all proceedings before the Commission should be issued.

Appellant’s Submissions

[8] The Appellant outlined six main grounds of appeal, which we summarise as follows.

[9] Firstly, the Appellant noted the Commissioner’s finding at [24] of his Decision that he was not persuaded there would be any irreparable damage to the employee and that there was “no direct evidence before me [him] of the damage he [the Appellant] would likely suffer”. In this regard, the Appellant contended that such a finding ignored the evidence of Ms Krouskos where she set out an example of the adverse publicity suffered by Firefighter Duggan in an earlier matter. Further, the Appellant asserted that, in basing the Decision not to make a confidentiality order in the absence of “direct evidence”, the Commissioner imposed a more onerous test than the test of balancing the competing interests.

[10] Secondly, the Appellant submitted that, in determining that the application before him was similar to most matters brought before the Commission (for example at [14] and [18] of the Decision), the Commissioner erred. The Appellant contended that, unlike most applications before the Commission in which confidentiality orders are sought, this matter did not involve, as a central element of the task before the Commission, the determination of the disputed facts or the facts that might otherwise be characterised as embarrassing.

[11] Thirdly, the Appellant posited that the Commissioner erred in finding that, given the ongoing public and serious disputation between the parties, there would be significant media interest. In this regard, the Appellant asserted that evidence that particular media coverage might have an impact on the Respondent is, by its nature, incapable of specific proof. Further, the Appellant contended there was sufficient evidence from which the inference to that effect could have been drawn, and should have been drawn, and the requirement for evidence of actual influence failed to have regard to the balancing exercise required.

[12] Fourthly, the Appellant submitted that, in finding at [21] of the Decision that the Appellant necessarily must have had some connection with the application by the union and, therefore, was to take the consequences of the principles of open justice, the Commissioner failed to balance the matter before him by ignoring that the substantive allegations against the employee were only relevant for the purposes of understanding the nature of the dispute notified to the Commission and are not determinative of the agreed questions before the Commission. Further, the Appellant contended that the Commissioner’s finding ignored that submission which was focused on the basis for the proceeding and distinguishing it from other proceedings.

[13] Fifthly, the Appellant asserted that the Commissioner took into account an irrelevant consideration in the balancing process. The Appellant noted that, at [25] of the Decision, the balancing exercise undertaken by the Commissioner was influenced by the fact that the matter did not concern the private interactions of employees in a private company, but rather, involved misconduct by a publicly employed person. In this regard, the Appellant submitted there was no warrant for imposing a different test depending upon the nature of a person’s employment, either public or private.

[14] Sixthly, the Appellant contended that the Commissioner erred at [19] of his Decision by taking into account that there had been no admission or denial of the allegations by the Appellant in relation to the Facebook posts. In this regard, the Appellant submitted that the questions for determination depend in no way on the resolution on whether or not the Appellant was guilty or denied the allegations.

Respondent’s Submissions

[15] The Respondent replied to each of the grounds of appeal and we summarise those submissions as follows.

[16] In relation to the first ground of appeal, the Respondent contended that the Commissioner’s observation that there was no direct evidence before him of the damage the Appellant would likely suffer was correct. The Respondent asserted the witness statement of Ms Krouskos was hardly of any direct relevance or probative value.

[17] In relation to the second ground of appeal, the Respondent submitted that the Commissioner’s observations at [18] of the Decision were correct. The Respondent asserted that the proceedings before the Commissioner concerned untested allegations against the employee and that such proceedings are regularly the subject of publication and are not usually the subject of confidentiality orders, either in the Commission or in the courts.

[18] In relation to the third ground of appeal, the Respondent contended that the finding at [23] of the Decision was correct and this ground should not be upheld for that reason alone.

[19] In relation to the fourth ground of appeal, the Respondent asserted that the inference that the employee concerned had accepted the risk of the dispute application was reasonably open on the evidence. In this regard, the Respondent submitted that the Commissioner’s reasons at [21] were sound and based on the evidence adduced before the Commissioner by the Appellant.

[20] In relation to the fifth ground of appeal, the Respondent contended that it cannot fairly be said that the Commissioner is somehow applying “a different test” when he properly reasoned, at [25] of the Decision, that a situation involving a dispute between public entities in relation to public employment is one factor that supports him giving paramountcy to the principle of open justice in this case.

[21] In relation to the sixth ground of appeal, the Respondent noted that the Commissioner stated at [19] of his Decision that:

“I take into account that the UFU does not make any admissions on behalf of its member about his conduct, or that the posts are his; however, I also take into account that it does not deny them either.”

[22] The Respondent asserted that this amounted to a finding that, on the evidence before him, the Commissioner was not able to find that the employee made the relevant Facebook posts, nor did he make a finding either way. The Respondent asserted that this is distinct from a position where he could make such findings, because the evidence enabled him to do so. As such, the Respondent posited that this does not amount to the Commissioner taking into account an irrelevant consideration in the sense referred to in House v The King. 4

[23] For the above reasons, the Respondent contended that permission to appeal should be refused and the appeal should be dismissed.

Consideration – Permission to Appeal

[24] The Commission will grant permission to appeal only if it is in the public interest to do so. 5 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.6 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,7 the Full Bench summarised the test for determining the public interest as follows:

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”

[25] Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 8

[26] In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.

[27] We note that this is an appeal against an interlocutory decision. In this regard, courts and tribunals have generally discouraged appeals from preliminary or procedural decisions. This notion was corroborated in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia, 9 where the Full Bench held:

“Having regard to the nature of the questions involved here, coupled with the industrial situation out of which these proceedings have developed we have decided, albeit reluctantly, to grant leave to appeal. Our reluctance stems from what we perceive to be a level of undesirability in appeals being taken from procedural decisions taken by members of the Commission in the course of a case.”

[28] Nevertheless, despite such undesirability, we find that permission to appeal should be granted in this matter. We are of the view that the appeal raises important questions concerning the principles of open justice and the application of sections 593 and 594 of the Act in circumstances where the Commissioner’s discretion to make an ongoing confidentiality order is an issue in the dispute. We consider this to be an important matter regarding the Commissioner’s approach in making such a determination and, therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.

Consideration – The Appeal

[29] We note that a decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view on the matters that fell for determination before the Commissioner in the absence of error of an appellable nature in the Commissioner’s original Decision. As the High Court said in House v The King 10:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[30] Section 593 of the Act states as follows:

“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.

(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”

[31] Section 594 of the Act states as follows:

“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.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”

[32] As is evident from section 593(2), there is a presumption that hearings must be held in public, except in the circumstances contemplated by section 593(3) of the Act. This was corroborated by Commissioner Bissett in Justin Corfield, 11 whereby she held that:

“The presumption in s.593 is that a hearing will be conducted in public. This accords with the ‘open justice’ principle.” 12

[33] Moreover, in Seven Network (Operations) Limited & Ors v James Warburton (No 1) 13 (hereafter Seven Network), Pembroke J provided an in depth analysis of the principles of open justice as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”

[34] The principles of open justice elicited above are applicable to the proceedings before the Commission. Importantly, we note that the departure from the principles of open justice is only justified where observance of the principle would frustrate the administration of justice by unfairly damaging some material private or public interest. Thus, it is incumbent upon us to make such an observation in order to issue an ongoing confidentiality order for the purposes of the matter before us.

[35] Moreover, the Commission is not strictly bound by the doctrine of stare decisis. However, it generally observes the doctrine as outlined in Cetin v Ripon Pty Lt t/as Parkview Hotel: 14

“Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so.”

[36] We note that the Appellant contended that in concluding there was “no direct evidence” of the damage the Appellant would suffer, the Commissioner ignored the evidence, such as that outlined in paragraphs 14 to 17 of Ms Krouskos’ witness statement. We note that these paragraphs relate to an incident involving Mr Duggan where he advised Ms Krouskos that he endured psychological and reputational damage. We do not agree with this submission. The asserted psychological and reputational damage that Ms Krouskos refers to in relation to Mr Duggan is only evidence of such suffering in relation to Mr Duggan. It is not direct evidence that the Appellant would undergo the same suffering in a separate situation. Therefore, we are not satisfied the Commissioner erred in this regard.

[37] Additionally, the Appellant submitted that the Commissioner erred in failing to give consideration to the particular matter before him, in particular, regarding [14] and [18] of his Decision. We do not agree with this submission. At [14] of his Decision, the Commissioner noted that the principles of open justice include the proposition that, despite embarrassing and damaging facts, individual interests must be put to one side in order to adhere to an open system of justice. Amongst other authorities, this is corroborated in the above extract from Seven Network and, as such, we are not satisfied the Commissioner erred in this regard. Moreover, we are not satisfied that the Commissioner erred at [18] of his Decision by concluding that a situation in which untested allegations may be publicly aired is not unusual for the Commission in dealing with applications for confidentiality orders.

[38] Further, the Appellant asserted that the Commissioner erred at [23] of his Decision in finding that, given the ongoing public disputation between the parties, there would be significant media interest. We do not agree with this submission. At [23] of his Decision, the Commissioner simply held that there was no evidence before him that an open hearing of the matter would damage the investigation process or lead to pressure on the Respondent to take a “harder line” with any sanction it considered. The Commissioner did not find that there would be significant media interest. Rather, the Commissioner simply held that public scrutiny of the Respondent’s disciplinary system may lead to greater confidence in it. As such, we are not satisfied the Commissioner erred in this regard.

[39] The Appellant also contended that Commissioner erred at [21] of his Decision by finding that the Appellant must have had some connection with the application by the union and, therefore, was subjected to the principles of open justice. We do not agree with this submission. We are not satisfied the Commissioner erred in concluding that the union and its representatives would have informed the Appellant of the inherent risks of bringing proceedings before the Commission.

[40] Additionally, the Appellant submitted that the Commissioner erred at [25] and noted there was no warrant for imposing a different test depending upon the nature of a person’s employment, either public or private. We do not agree with this submission. The Commissioner simply held that, as the matter involved a publicly employed person who made offensive commentary on Facebook (a public social media platform), this enlivened the public interest, thereby leading the Commissioner to conclude that he should not depart from the principles of open justice by issuing an ongoing confidentiality order. The Commissioner did not apply a different test as a result of the Appellant’s type of employment. As such, we are not satisfied that the Commissioner erred in making this finding.

[41] Finally, the Appellant contended that the Commissioner erred at [19] of his Decision by taking into account that there had been no admission or denial of the allegations by the Appellant in relation to the Facebook posts. In this regard, the Appellant asserted that the questions for determination did not depend on the resolution of whether or not the Appellant was guilty or denied the allegations against him. We note that the Commissioner acknowledged this at [18] of his Decision when he found that:

“The matter before me is not whether these allegations are made out or not, but rather, as referred to above, whether the MFB has complied with its policies, procedures and practices in relation to its investigation of the allegations.”

[42] Further, the Commissioner held that he was yet to make findings about the extent to which a link could be drawn between the Facebook posts and the Appellant’s employment as a firefighter, if he was the author. As such, we are not satisfied the Commissioner erred in this regard.

[43] We note the matter before us involves how an employer investigates allegations that an employee allegedly made offensive commentary on multiple occasions on Facebook and continued to do so even after allegations of misconduct have been made against him. As such, we are of the view that the public interest is enlivened and these proceedings should be made publicly available. We note that, once a matter comes before the Commission, it is implicit that the parties are subjected to the principles of open justice. In particular, sections 593 and 594 of the Act confer discretion upon us to make hearings or evidence confidential. In exercising our discretion pursuant to the Act, we are not satisfied that publicising these proceedings would frustrate the administration of justice by unfairly damaging some material private or public interest. The fact that the Appellant may be embarrassed does not, of itself, justify the suppression of this matter by way of an ongoing confidentiality Order. Rather, as the parties subjected themselves to the principles of open justice by bringing their dispute before the Commission, the parties must accept the necessity to conduct proceedings openly and with transparency in order to uphold confidence in the Commission. Therefore, we are not satisfied there should be a departure from principles of open justice.

[44] Accordingly, the appeal must be dismissed and the stay Order issued on 30 March 2017 must be revoked.

Conclusion

[45] Permission to appeal is granted.

[46] The appeal is dismissed.

[47] The stay Order issued on 30 March 2017 is hereby revoked.

VICE PRESIDENT

Appearances:

E. White, of Counsel, for the Appellant.

J. Tracey, of Counsel, for the Respondent.

Hearing details:

2017

Sydney via video link to Melbourne:

4 May.

 1   [2017] FWC 1708.

 2   PR591374.

 3   PR591472.

 4   (1936) 55 CLR 499.

 5   Fair Work Act 2009 (Cth) s 604(2).

 6   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].

 7   [2010] FWAFB 5343, [27].

 8   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].

 9   33 IR 431, 432.

 10   [1936] 55 CLR 499.

 11   [2014] FWC 4887.

 12   [2014] FWC 4887, [20].

 13   [2011] NSWSC 385.

 14   (2003) 127 IR 205.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR592696>