DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yancoal Mining Services Pty Ltd
(AG2016/5379)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 SEPTEMBER 2016

Application for approval of the Yancoal Mining Services Pty Ltd - Enterprise Agreement 2016 – Confidential Documents.

[1] Yancoal Mining Services Pty Ltd (the Applicant) has made an application pursuant to s.185 for the approval of the Yancoal Mining Services Pty Ltd – Enterprise Agreement 2016 (the Proposed Agreement).

[2] The Proposed Agreement was negotiated with three employee bargaining representatives (the Affected Employees).

[3] The CFMEU has sought leave pursuant to s.590 to be heard in relation to the approval of the Proposed Agreement, and has been provided with the forms (including the F16, F17 and F18As) filed by the Applicant in support of this application.

[4] The Applicant now seeks an order pursuant to sections 593 and 594 (the Order) to restrict the disclosure of personal information of the Affected Employees, which is contained within various documents including those filed in support of the Application, and within the signature page of the Proposed Agreement. The personal information consists of the Affected Employees’ home address, personal email address, and telephone number. For clarity, the Order does not seek to restrict the publication of the names of the Affected Employees.

[5] Section 593 provides:

“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;

(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)).“

[6] Section 594 provides:

“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;

(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)).”

[7] Submissions were made yesterday on behalf of the Applicant (and supported by the Affected Employees) and by the CFMEU in relation to the Order sought. I am satisfied that the documents in question contain personal information and that the Affected employees do not want this information in the public domain.

[8] Having considered the submissions made, I have decided to make an order to suppress specified personal information of the Affected Employees, but not in the terms sought by the Applicant. I note that there was general acceptance by the CFMEU that it would be reasonable to suppress specified personal information of the Affected Employees, however the terms of the Order were opposed.

[9] I accept that it is appropriate to protect and maintain aspects of the privacy of the Affected Employees through the making of orders. In so deciding, I have had regard for the need to balance the considerations of open justice and matters of fairness. In this case, the names of the Affected Employees will remain available and in the public domain. There is no public interest served in publishing the home address or personal contact details of the Affected Employees, all of whom can be contacted (to the extent this is necessary) via their employer.

[10] An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr T Sebbens, solicitor, for the Applicant

Mr A Thomas for the CFMEU

Mr Kye Rollason, Bargaining representative

Mr Doug Brooks, Bargaining representative

Mr Cody Brooks, Bargaining representative

Hearing details:

2016.

Sydney (by telephone)

September 7.

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