| [2021] FWC 4927 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Family and domestic violence leave review 2021
(AM2021/55)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 11 AUGUST 2021 |
Family and domestic violence leave review–research program–confidentiality orders
[1] On 30 July 2021 the ACTU wrote to the Commission about confidentiality issues that arise in this matter. The ACTU does not intend to file statements by individuals who have directly experienced family and domestic violence; but a number of the ACTU’s ‘lay witness statements’ contain sensitive case studies detailing experiences of family and domestic violence. The ACTU has agreed with the Australian Chamber of Commerce and Industry and Ai Group on the following proposed process to protect the identity and privacy of the individuals who are the subject of these case studies:
‘1. Confidentiality Orders will apply only to lay witness statements that contain sensitive case studies disclosing details of an individual’s experience of domestic and family violence. All other evidence will be dealt with in accordance with the usual Commission procedures.
2. The ACTU will prepare a redacted and unreacted version of each lay witness statement which contains sensitive case studies, with Confidentiality Orders applying to the unredacted version of the statement only. The redacted version of the statement can be published on the FWC website.
3. Confidentiality Orders will provide that the unredacted version of the witness statements will only be provided to:
a. the Commission members and their staff; and
b. a limited number of confirmed representatives of AIG, ABI, NSW Business Chamber and ACCI who have signed a confidentiality undertaking.
4. Unredacted lay witness statements to which the Confidentiality Orders apply will not be published on the FWC website, nor will they be copied or published except for the purpose of briefing Counsel. At the end of the proceedings, these statements should be destroyed or returned to the ACTU.
5. If other employer organisations wish to obtain the unredacted witness statements, then they will be required to make an application to the Commission. The ACTU will take a position on these applications on a case-by-case basis.’
[2] The ACTU provided draft consent confidentiality orders.
[3] In a Statement 1 issued on 6 August 2021, the Family and Domestic Violence Leave Review 2021 Full Bench indicated that it had some concerns about the drafting of the proposed orders and that the matter will be the subject of a mention at 9:30am on Thursday
12 August 2021 before me.
[4] Attached is a document setting out some comments in relation to the draft confidentiality order filed by the ACTU (see Attachment 1) and a revised draft order is also attached (Attachment 2).
[5] These matters will be discussed at the mention on Thursday 12 August 2021.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732705>
ACTU draft order |
Comment |
1. The Commission makes orders pursuant to section 594 of the Fair Work Act that: |
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(a) Any document that contains sensitive information about an individual whose identity is apparent, or can reasonably be ascertained will be marked as confidential (confidential documents). (b) Sensitive information means any information that pertains to a person’s experience of family or domestic violence, whether experienced by that person, or by another person including a family member or friend. (c) Confidential document(s) will include the following: (i) documents provided to the Commission by the Australian Council of Trade Unions (ACTU) under any Order Requiring Production of Documents etc. to the Fair Work Commission; (ii) witness statements, affidavits, written materials, and submissions filed by any party in the proceedings; (iii) documents or things tendered into evidence by any party in the proceedings; (iv) transcripts of the hearing of the proceedings, |
The definition of ‘confidential document’ is unclear. Also, the definition includes documents lodged by any party to the proceedings even though the arrangements for access to confidential documents (in clauses (f)(ii) and (iii) and the attached ‘confidentiality undertaking’) only appear appropriate for confidential documents lodged by the ACTU or documents of other parties that are confidential documents because they contain information derived from documents lodged by the ACTU. Is ‘confidential documents’ intended to be confined to: documents lodged by the ACTU; documents lodged by the ACTU and documents lodged by other parties that are confidential documents because they contain information derived from documents lodged by the ACTU, or documents lodged by any party that satisfy the definition of ‘confidential document’? To avoid any doubt about whether a document is or is not a confidential document, the order could require a party lodging a document to identify it as a ‘confidential document’ and request that the Commission mark it ‘confidential’. More specific comments are: • Presumably, it was intended that clauses 1(a) and (b) would operate to confine ‘confidential documents’ to those from which the identity of an individual who has been the victim of domestic violence (or a close associate of them) can be ascertained. They don’t succeed in doing this because on a literal reading the clauses encompass, for example, a witness statement made by a domestic violence worker from which the identity of the domestic violence worker (rather than the identity of the worker’s clients) can be ascertained.
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(d) Any confidential document will be retained and filed by the Commission in such a way as to ensure the confidentiality of the document(s) is maintained. |
Is it appropriate for the Commission to make such an order directed to itself? |
(e) Any confidential document will not be published on the Fair Work Commission website or otherwise. |
Is clause 1(e) confined to publication by the Commission or is it intended also to prohibit publication (presumably to the public generally) by any party? Note that ‘publish’ can have a very broad meaning (potentially including providing a document to a single individual). What meaning is intended? |
(f) Access to any confidential document will be limited to: (i) Members of the Full Bench, and the employees of the Commission who need to deal with the documents in the ordinary course of their duties and the proceedings; (ii) The employees or legal representatives of Australian Industry Group, Australian Business Industrial, NSW Business Chamber and Australian Chamber of Commerce and Industry (employer parties) with direct responsibility for or involvement in the conduct of the proceedings, provided that the ACTU is notified of the names of each such person who have been given access to the documents and that person has signed a Confidentiality Undertaking as set out in Schedule A to this Order. (iii) Any employer identified in the confidential documents (identified employer) who the employer parties wish to contact for purposes of the proceedings with such disclosure being subject to: (A) the employer parties first discussing with the ACTU how they intend to proceed; (B) the ACTU being notified of the names of each person at the identified employer who the employer parties intend to give access to the confidential documents; and (C) the execution by any person to be provided with the confidential documents of the Confidentiality Undertaking as set out in Schedule A to this Order. |
Clauses (f)(ii) and f(iii)(C) do not give the terms of a ‘confidentiality undertaking’ force under the order (rather they place a condition on giving access to a confidential document). The intention may have been that the order would restrict what the recipient of a confidential document can do with it (rather than just access to the document). This needs to be clarified. A further minor issue is the temporal difference in respect of signing a confidentiality undertaking in clauses (f)(ii) and f(iii)(C)—presumably the intention in (f)(ii) was that the person who is to receive a confidential document would sign the confidentiality undertaking before receiving the document? |
(iv) Any other persons or party who wishes to view the material may apply to the Fair Work Commission and the application shall be determined following a hearing involving the affected parties. |
Clause (f)(iv) does not fit under the prefatory words in clause (f) and should be redrafted as a separate clause. Clause (f)(iv) should not purport to bind the Commission to hold a hearing. It might be redrafted along the following lines: ‘Any other person who wishes to obtain access to a confidential document may apply to the Fair Work Commission. The Commission will determine the application after providing interested parties with an opportunity to be heard.’ |
2. The parties are at liberty, in the course of the hearing when oral evidence is being given touching upon these matters, to make an application under s.594 of the Act for confidentiality in respect of the particular evidence. |
The Commission can make orders ‘prohibiting or restricting publication’ pursuant to s.594. The wording of the order should reflect that terminology. It may be preferable to deal with restrictions of the publication of transcript under this clause or a separate clause. For example, the order might clarify that if the Commission grants an application for oral evidence to be given in private and not published then transcript will be redacted accordingly before publication. |
3. At the conclusion of the proceedings, the parties have liberty to apply to the Commission for permanent confidentiality orders in relation to the confidential documents. 4. This order will remain in effect until further order of the Commission. 5. Leave is granted to apply generally. |
It is not clear what is intended by clause 3. So far as concerns the permanency of any non-publication orders made by the Commission, clause 4 would seem to suffice. |
Schedule A to Draft Confidentiality Orders—Confidentiality Undertaking |
The confidentiality undertaking is poorly and confusingly drafted. In particular, it is not clear what (if any) different documents are dealt with under clauses a) and b) respectively. If a document can fall under both clauses then the clauses appear to conflict (eg clause a) restricts disclosure, use etc of a confidential document whereas clause b) prohibits it). Further issues include: • What is the intended effect of the prefatory words (which appear to indicate the signatory is purporting to bind the relevant employer party)? • Is the definition of ‘confidential document’ in clauses a) and b) intended to be different? • What documents covered by clause b) are the words ‘which are produced, filed or tendered … and are obtained by myself [sic] by virtue of the proceedings’ intended to attach to? |
Attachment 2
[2021] FWC XXXX
FAIR WORK COMMISSION
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Family and domestic leave review 2021
(AM2021/55)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, XX AUGUST 2021 |
Family and domestic violence leave review–Order prohibiting or restricting the publication of confidential documents.
Pursuant to s.594 of Fair Work Act 2009 (Cth) the Commission orders as follows:
Name of order
[1] This order will be known as Confidentiality Order 1 in AM2021/55.
Definitions
[2] In this order:
(a) ACTU means the Australian Council of Trade Unions
(b) Commission means the Fair Work Commission
(c) confidential document means a document marked confidential by the Commission pursuant to paragraph [3] or [8] of this order
(d) confidentiality undertaking means an undertaking in the terms set out in Schedule A to this order
(e) employer party means the Australian Industry Group, Australian Business Industrial, NSW Business Chamber or Australian Chamber of Commerce and Industry
(f) proceeding means matter AM2021/55
(g) sensitive information means any information from which an individual is reasonably identifiable and which relates to the individual having experienced family or domestic violence.
Restriction on access to and disclosure of confidential ACTU witness statements
[3] If a witness statement lodged in the proceeding by the ACTU contains sensitive information, the ACTU will:
(a) notify the Commission and the employer parties that the document contains sensitive information
(b) request that the Commission mark the document as confidential, and
(c) provide the Commission with a version of the document for publication by the Commission from which the sensitive information has been redacted.
[4] Access to a confidential document is restricted to:
(a) Members of the Full Bench in the proceeding and employees of the Commission who need access to the document in the course of their duties
(b) employees and legal representatives of the ACTU
(c) employees and legal representatives of an employer party who have direct responsibility for or involvement in the conduct of the proceeding, provided that:
(i) the ACTU is notified of the names of each such person who will be given access to the document, and
(ii) each such person signs a confidentiality undertaking before being given access to the document
(d) employees and legal representatives of an employer identified in the confidential document (identified employer) that an employer party wishes to contact for purposes of the proceeding, provided that:
(i) the employer party first discusses with the ACTU how it intends to proceed
(ii) the ACTU is notified of the names of each employee and legal representative of the identified employer who will be given access to the document, and
(iii) each such person signs a confidentiality undertaking before being given access to the document
(e) a person granted access to the document by the Commission pursuant to paragraph [7] of this order.
[5] The Commission will not publish a confidential document on its website and except as provided for in this order will keep the document confidential.
[6] A person must not publish or disclose a confidential document or any sensitive information from a confidential document except:
(a) to a person permitted access to the document under paragraph [4] of this order, or
(b) as permitted under a confidentiality undertaking signed by the person.
[7] A person who does not have access to a confidential document under paragraph [4] of this order may apply to the Commission to obtain access to the document. The Commission will determine the application after giving the ACTU and other interested parties an opportunity to be heard.
Restriction on disclosure of sensitive information from confidential documents
[8] If a party lodges a written submission, written evidence or another document in the proceeding that contains sensitive information from a confidential document, the party must:
(a) notify the Commission and the other parties that the document contains sensitive information from a confidential document
(b) request that the Commission mark the document as confidential, and
(c) provide the Commission with a version of the document for publication by the Commission from which the sensitive information has been redacted.
[9] If a party other than the ACTU wishes to refer to sensitive information from a confidential document in the course of the hearing of the proceeding or elicit oral evidence including such information, the party must notify the ACTU in advance in sufficient time for the ACTU to make an application to have the hearing conducted in private.
[10] During the course of the hearing(s) in this matter, the ACTU may apply for further orders prohibiting or restricting publication of sensitive information pursuant to s.594 of the Act. This may include an application that a witness give evidence in private or that redactions are made from transcript before it is published on the Commission’s website.
Effect of order and leave to apply
[11] This order remains in force until further order of the Commission.
[12] Leave is granted to apply generally.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Schedule A
Confidentiality Undertaking
I, ___________________ [name], of _________________________ [employer party/identified employer/other] agree that:
(1) In this confidentiality undertaking:
(a) confidential document means a document marked confidential by the Fair Work Commission pursuant to Confidentiality Order 1 in matter AM2021/55
(b) sensitive information means any information from which an individual is reasonably identifiable and which relates to the individual having experienced family or domestic violence, and
(c) proceeding means matter AM2021/55.
(2) Subject to clause (3), I will:
(a) keep strictly confidential any confidential document and any sensitive information from a confidential document that I obtain access to
(b) not copy any confidential document, and
(c) either return to the ACTU or destroy any confidential document (including any copy) in my possession or control at the conclusion of the proceeding.
(3) I may disclose a confidential document or sensitive information from a confidential document (including giving a copy of a confidential document) to:
(a) a barrister acting for the ___________________ [employer party/identified employer] in the proceeding
(b) a person permitted access to the document under paragraph [4] of Confidentiality Order 1 in AM2021/55, or
(c) another person after first discussing this with the ACTU and obtaining the agreement of the ACTU.
Signed
Date