[2014] FWC 4887

FAIR WORK COMMISSION

DECISION

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

Justin Corfield
(AB2014/1113)

COMMISSIONER BISSETT

MELBOURNE, 21 JULY 2014

Application for de-identification of parties in an application for an order to stop bullying.

[1] The Fair Work Commission (the Commission) has received an application for anti-bullying orders from Mr Justin Corfield (the Applicant) pursuant to s.789FC of the Fair Work Act 2009 (the Act).

[2] The matter has been listed for hearing and directions have been issued for the filing of submissions and witness statements by all parties.

[3] The Respondents (the named individual and the employer) have made an application that the parties in the matter be de-identified pursuant to s.593(3)(c) of the Act. Prior to making a decision on the application I sought the views of the Applicant and provided the Respondents with an opportunity to reply to those submissions.

[4] In making the application the Respondents submit that the publication of the name of the Applicant and Respondents in what is essentially a private and confidential matter will not be conducive to good governance of the Respondent employer.

[5] The Applicant opposes the application. He says that the names of the parties have already been identified in the daily hearing lists of the Commission on the two days when the matter was previously listed. The Applicant says that an application involving allegations of one staff member against another is not unique or unusual in Commission proceedings and that, of itself, does not warrant de-identification.

[6] The Applicant submits that the matter is not ‘essentially a private matter’ and indicates his intention to call evidence as to the knowledge of others to the matters.

[7] The Applicant submits that the Respondent has not shown that de-identification is necessary ‘in the interests of justice.’ Further he says that the Respondent has not identified how public access to any proceedings or decisions would not be conducive to good governance of the organisation nor how any party might be prejudiced if the parties are identified in the normal manner.

[8] In reply the Respondent says that proceedings to date have been of the nature of private conciliation. It seeks to suppress the names of the parties in respect of any hearing list and published reason for decision.

[9] The Respondents submit that it is not unusual for the Commission to de-identify parties to such proceedings.

[10] The Respondents also say that, even though others may have some knowledge of the matters in dispute, this does not detract from the essentially private nature of the dispute between the Applicant and the Respondents. Further, it says that the performance management system of the Respondent (to which the application does, in part, relate) should not be subject to public scrutiny. They argue that the performance management system of the organisation is robust and should continue and if the application for orders is not successful, the integrity of the system may well be compromised and confidence in the organisation adversely effected.

[11] The Respondents submit that there is nothing untoward in the Commission balancing the public interest against the parties’ private interests. It submits that it is not essential that employment related matters be conducted in public and this is demonstrated by s.397 and s.398 of the Act.

Consideration

[12] There have been some 27 decisions of the Commission issued with respect to applications made pursuant to s.789FC of the Act. If decisions where an application has been refused because the Applicant has failed to comply with the procedural requirements of the Act are excluded there are 10 substantive decisions issued by the Commission in respect of such applications. Six of these applications have had the parties ‘de-identified’ although none give detailed reasons as to why this was done. It appears that de-identification was not a contested matter.

[13] It is also the case that relatively few unfair dismissal decisions have the parties de-identified.

[14] There are some matters before the Commission where the Commission must conduct proceedings in private. These relate to conferences in respect of disputes involving a contravention of the general protections of the Act (see s.368 and s.374 of the Act), whether they involve a dismissal or not, and in respect of an application for relief from unfair dismissal being dealt with by way of conference (s.398). Any other conference must be conducted in private unless otherwise determined by the Member dealing with the matter (s.592).

[15] That a conference is conducted in private does not mean that any ultimate decision involving the parties will have the parties de-identified. For example, an extension of time decision in relation to a general protections application involving a dismissal (s.365 of the Act) will not have the parties de-identified even though any subsequent conference conducted by the Commission will be conducted in private. That conferences are conducted in private is no reason, per se, to de-identify the parties.

[16] Whilst conferences are generally conducted in private this does not require, and it is not the practice, that there is no public identification of the parties to the matter. In fact, a perusal of the daily hearing list will indicate the names of parties to any number of matters that are to be dealt with by way of a private conference.

[17] Anti-bullying applications are, by their nature, applications made in the context of an on-going employment relationship. An anti-bullying application will be made whilst a person is employed and the range of orders is directed to making the bullying stop in the context of the continuation of the employment relationship. That is, an anti-bullying order cannot be made once the employment relationship has ended. 1 In this respect an application under s.789FC is different to many other ‘individual’ applications made to the Commission (unfair dismissal and general protections involving dismissal) where the employment relationship has ended.

[18] An anti-bullying application will, in most circumstances, be made against a named individual or group of individuals in a workplace. The employer will also be a party to the proceedings.

[19] With respect to the conduct of hearings before the Commission, s.593 of the Act states:

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.

(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)).

[emphasis added]

[20] The presumption in s.593 is that a hearing will be conducted in public. This accords with the ‘open justice’ principle. However, the Act does recognise that there are circumstances when a hearing or part of a hearing may be conducted in private.

[21] The principle of open justice applies to the Commission just as much to the Courts. Section 593 above is testament to this. There are, as has been identified above, some legislative exceptions where they are some limitations. These exceptions, however, should not be seen to distract from the application of the principal in general.

[22] The application of the open justice (or open court) principal was considered by Munro J in Moncreiff Fabrications Labour Services Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 2 where he noted:

In a recent publication, The Australian Judiciary, Professors Enid Campbell and H.P. Lee, the joint authors of the publication, devoted a chapter to the accountability of Judges and the function of the concept of open hearings. They note that the general rule of common law is that proceedings in a Court of justice must be conducted in open Court. It is claimed that such a rule, described as “inveterate” and “immutable”, has existed in England “for some centuries”.

Of course, and without quoting from the authors, the processes of this Commission are not judicial processes. It is equally clear that the processes are quasi judicial. The Commission’s function has long been associated with the recognition that our process is akin to a judicial process. The authors note that McHugh J has referred to the implication of open justice as an essential feature of the Federal judicial power. According to Gaudron J, open and public inquiry is an aspect of the judicial process. Such procedures have long been an aspect of the Commission’s processes. I have not researched its statutory provenance but I assume it is at least a legacy of the Commission’s antecedent, the Court of Conciliation and Arbitration.

At page 220 of the publication to which I have referred the authors continue, and this I quote:

“The justification for a relatively strict adherence to the general rule of public hearings has usually been based on one of two broad and related principles. In the first place, it is asserted that the exposure of the judicial system to publicity produces certain beneficial effects in the operation of the system. The dual nature of this beneficial (also described as `cathartic’) effect was identified by Bentham: `[P]ublicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.’ We believe that the spur to exertion refers to the tendency of publicity to ensure the maintenance of standards of formality, the conscientious performance of duties, and a certain decorum of procedure. As Lord Widgery stated:

The great virtue of having the public in our courts is that discipline which the presence of the public imposes on the court itself. ... [E]verybody is more careful about what they do, everybody tries just that little bit harder.

Publicity constitutes a `guard against improbity’, in that exposure to public scrutiny and criticism is said to create an environment in which abuses are less able to flourish undetected. The proposition was stated by Lord Diplock thus: `If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy.’” 3

[23] In that matter his Honour was considering the hearing of a matter ‘in chambers’. Despite this different context, his observations remain apposite to the matter before me.

[24] In Day v Smidmore and others (No 2) 4 (Smidmore) the New South Wales Industrial Relations Commission in Court session was considering an application to suppress the names of certain witnesses in a decision already issued. In deciding the matter the Court observed:

31 The test we are obliged to apply provides that the Court may exercise its discretion to make any non-disclosure order if we are satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. The application of that test must be approached on the basis that the legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test.

[25] The Court then said:

32 …we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings “publicly and in open view”: Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]):

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

33 As Kirby P observed in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142-143:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

[26] On the question of balancing considerations in deciding the grant of suppression orders the Court said:

36 The decision whether to make non-disclosure orders involves a very fine and difficult balance between a number of competing factors. Factors telling against the exercise of the power to make the orders include, as we have observed, the paramount consideration of open justice and that embarrassment, distress or damage by publicity will not, of themselves, provide a sufficient basis for making such orders.

...

41 The factors in favour of granting the respondents’ application include the very wide power granted to the Court to do so under s 164A(2). Secondly, there was the approach of the appellant to the application, who indicated no opposition and that it was a matter for the Court, subject to the protection of his costs. Next, there is the unchallenged evidence... regarding the distress felt by certain persons at seeing their names in the judgment linked to unsavoury allegations of a professional and personal nature and the effect that might have on careers and the respondents’ business. This is a particularly difficult consideration given our view that mere distress does not warrant a non-disclosure order.

[27] In that matter the Court was considering its powers to make suppression orders under the Industrial Relations Act 1996 (NSW) which provides:

164A Powers of Commission as to the disclosure of matters before the Commission

(1) A non-disclosure order is any of the following orders:

(a) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission)...

(2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason...

[emphasis added]

[28] The language of the provisions being considered by the Court is not substantively different to s.593(3) of the Act. For this reason I find the reasoning of the Court persuasive although I do note that in that matter the application was not contested.

[29] It is clear that there are a number of different types of orders that can be made by the Commission pursuant to s.593 of the Act. Each of these will have a varying degree of effect on the open justice principle as it applies to the Commission. These include an order prohibiting who may be present during a hearing (so that a matter might essentially be heard in private) to orders that restrict the names of parties or witnesses in a matter (as is sought in this application). To this extent the application of the Respondents are within jurisdiction of the Commission. An order to de-identify parties to a matter is considered the least adverse to the maintenance of open justice.

[30] In deciding whether or not to grant the application of the Respondents it is necessary that I balance the open justice principle against the effects of identification on the on-going employment relationship that between the Applicant and the Respondent employer and any embarrassment or distress felt by the Respondents in being identified.

[31] I am, in this case, aware of the identification of the Respondent employer and can appreciate the concerns it has expressed in relation to the public disclosure of its name in the context of what is, in some respects, a matter relating to performance management (on the Respondent employer’s view).

[32] It is undoubtedly true that the Respondents would prefer that their details not be made public. It is likely that this would be the preference of many parties in matters before the Commission. That it is the preference of the parties or that there may be some unwanted scrutiny because of the identification of the parties is not a basis to conclude that the parties should be de-identified. It seems to me that there is no harm, apart perhaps from some embarrassment to the Respondent employer, which will come from the identification of the parties. As was explained in Smidmore, mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application. Further, I am not convinced at this stage that the airing of aspects of the Respondent employer’s performance management system should adversely affect the integrity of that system. It seems likely that any scrutiny, should the system be robust, may lead to greater confidence in it.

[33] I note that any identification in relation to the application will, up until the time of the hearing, be limited to the Applicant. The Applicant opposes this application and therefore, it can be assumed, has no objection to his details being identified. The decision I have reached on this application should not be seen as giving the Applicant permission to publicly identify the Respondents to his application. Any such action would not be viewed favourably by the Commission and may result in appropriate orders being made.

Conclusion

[34] Whilst recognising that the Commission does have the power to grant the application I am not satisfied that there are sufficient grounds to warrant the application being granted at this time.

[35] In coming to my conclusion I have taken into account that the application goes to de-identification of the parties in the hearing list (which, in any event, does not, as a matter of administrative policy, identify the Respondents to an anti-bullying application), persons appearing at the hearing and the decision, which will not be issued until after the hearing is completed. The hearing list will not identify the Respondents and matters associated with the hearing and decision can be considered, on application, at a more appropriate time.

[36] I also recognise that in this decision I have relied on material not brought to the attention of the parties. As the Applicant does not object to identification I do not consider this an issue at this point in time where there has been no identification of the Respondents.

[37] This decision does not preclude a further application under s.593 as the matter proceeds.

COMMISSIONER

 1   See s.789(1)(b)(ii). See also Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank and Anor [2014] FWC 3408.

 2   PR925178.

 3   Ibid, [19]-[21].

 4   (2005) 149 IR 80; [2005] NSWIRComm 406.

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