DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Restaurant Industry Award 2010
(AM2017/57)

Restaurant Industry Award 2010 - substantive issues - application for confidentiality order.

Introduction

[1] This decision concerns an application by Restaurant and Catering Industrial (RCI) filed under s.594 of the Fair Work Act 2009 (the Act) in relation to 3 witness statements filed with the Fair Work Commission (the Commission) in support of RCI’s proposed variations in respect of the Restaurant Industry Award 2010 (the Award). The variations sought to the Award include proposed amendments to clause 15.1 of the Award relating to junior employees serving alcohol; clause 27 of the Award which will allow employers to pay employees on any day of the week and clauses 32.3 and 32.4 of the Award which relate to meal breaks and individual flexibility agreements.

[2] The matter was listed for Mention, by Video Link before me 24 September 2018. RCI failed to attend the Mention. United Voice (UV) appeared and advised that they object to the confidentiality order sought. The Directions issued on 25 September 2018 and Amended Directions issued on 27 September 2018 stated that the matter would be determined on the papers with liberty to apply generally. RCI has not requested a hearing in the matter and UV indicated on 19 October 2018 that it consents to the matter being determined on the papers by me, noting that it would request a hearing prior to the determination of the matter if it was to be dealt with by a Full Bench.

[3] The draft orders sought by RCI have the effect of:

(a) Limiting access to the witness statements to:

i. Employees of the Commission who need to deal with the Statements in the ordinary course of their duties;

ii. The parties to this matter, not including their members of their respective associations or unions.

(b) Access to the witness statements by any other party:

i. Being limited to the provision of a redacted copy (for this purpose RCI has provided redacted copies which redact the name, business name and business address of the witness); or

ii. Where a full copy is sought, the application be subject to a hearing before the Commission.

Background

[4] On 24 July 2018 RCI filed its submissions and evidence, which included 3 redacted witness statements. On 13 September 2018, RCI filed unredacted versions of the 3 witness statements with the Commission. The unredacted versions of the witness statements have not been published to the Commission’s website. The 3 witness statements the subject of this application relate only to the variations to the Restaurant Industry Award 2010 sought by RCI as set out above.

[5] On 25 September 2018 an Interim Order was issued by Commission in the following terms:

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

1. The three unredacted witness statements filed by Restaurant and Catering Industrial (RCI) on 13 September 2018 which are the subject of an application for confidentiality order shall be confidential (the Confidential Evidence).

2. The Confidential Evidence shall not be published or made available to any person other than authorised employees of the Commission.

B. This Interim Order shall come into effect on and from 25 September 2018 and shall remain in force until the final determination of the application for confidentiality order in matter AM2017/57.

Submissions

[6] RCI submit that the orders sought should be granted for the following reasons:

•  The 3 witnesses have stated they are not willing to submit evidence unless they are able to do so with anonymity;

•  That FWC will be greatly assisted by the evidence of the 3 witnesses in order to consider the facts, issues and competing perspectives; and

•  That the witnesses are concerned “… that publication of their details poses a significant risk to their business through the potential for negative media implications, targeted harassment and bullying from unions and lobby groups and harming their relationship with their employees”. 1

[7] UV oppose the application for confidentiality orders. In summary, UV submits that:

•  The Commission should uphold the “primacy of the principle” of open justice. That exceptions to that principle should only be made infrequently and with caution;

•  The nature of the evidence is not confidential and RCI have not established any reason as to why confidentiality orders should be made in the matter;

•  None of the claims (relevant to the 3 witnesses) relate to subject matter which is sensitive or personal; and

•  This matter is part of the 4 yearly review which is not an inter partes process but a public review which militates in favour of the process being open. 2

[8] In particular, UV submit that there is no evidence that publishing the names and the business names of the 3 witnesses will lead to the negative consequences alleged. In respect of the alleged negative consequences UV submits:

•  The consequences alleged suggest that UV would engage in what would be considered criminal or illegal conduct;

•  That the media may publish an article which is critical of the matter is not a reason to make the order sought;

•  There is no basis for RCI’s allegation that UV, or others, would harass of bully the witnesses; and

•  It is common for employers and employees to have different views about industrial matters in Commission proceedings and this does not amount to an unusual circumstance. 3

[9] UV also submit that the application should be characterised as an attempt to avoid negative publicity and public scrutiny for the 3 employer witnesses and this is not a proper basis for making an order. 4 Finally, that there are no proper reasons for the making of a confidentiality order and that the application should be dismissed.5

Consideration

[10] Section 577 of the Act provides:

“577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[11] Section 594 of the Act 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.

(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)).”

[12] In Bowker and Ors v DP World Melbourne Ltd and Ors (Bowker), 6 Deputy President Gostencnik dealt with an application for confidentiality order in the context of an application for an order to stop bullying. The orders sought were in respect of annexures to the Applicant’s witness statement. In Bowker, the Deputy President observed that:

“[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.

…

[20] Ultimately, the question of 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…” 7

[13] I agree with these principles and apply them to my consideration in this matter. RCI submit in support of the order that the 3 witnesses will not give evidence unless the order is made and this will deprive the Commission of the evidence. This is not a sound basis on which to make an order. It is simply a request to protect the identity of the witness without a sound basis for doing so.

[14] In this matter the order will have the effect of preventing the publication of the identity of the witnesses and will shield the witnesses from embarrassment, discomfort and inconvenience that might arise from public scrutiny of their evidence and to that extent is inconsistent with the principle of open justice.

[15] RCI claim that the witnesses are concerned about “a significant risk to their business” as a result of adverse media comment, targeted harassment and bullying from unions and lobby groups as well as harming their relationship with employees. There is no evidence advanced to support this claim. UV submit that there is no history of the union contacting or intimidating witnesses or their opponents. I am not satisfied that the claimed “significant risk” is a reasonable or well-founded concern and this is not a proper basis on which to make the orders sought. As to the possibility of negative media coverage, I note that mere embarrassment, distress or damage by publicity is not a proper basis for the making of a confidentiality order. 8

[16] Exceptions to the principle of open justice should be made infrequently and with caution. RCI have not established a proper basis to make the order sought.

[17] The application by RCI for confidentiality orders is dismissed and the interim orders made will be revoked.

[18] RCI have indicated that the 3 witnesses have stated they are not willing to submit evidence unless they are able to do so with anonymity. An order will be issued by the Commission at 10:00 am on Thursday, 1 November 2018 revoking the Interim Order issued 25 September 2018. RCI are to advise the Commission by no later than close of business Wednesday, 31 October 2018 if, in the circumstances, it wishes to withdraw the 3 witness statements which are the subject of this application. If the witness statements are not withdrawn, the 3 unredacted versions of the witness statements filed 13 September 2018 will be published to the Commission’s website.

COMMISSIONER

 1   RCI Submissions – confidentiality order, 5 October 2018 at paras 3 – 5

 2   UV Submissions – confidentiality order, 16 October 2018 at paras 7 – 16

 3   Ibid at para 21

 4   Ibid at paras 25 – 26

 5   Ibid at para 30

 6   Bowker and Ors v DP World Melbourne Ltd and Ors [2015] FWC 4542

 7   Ibid at [15], [20]

 8   Corfield [2014] FWC 4887 at [32]; see also Hankin [2014] FWC 8402 at [25] – [27]

Printed by authority of the Commonwealth Government Printer

<PR701758>