Fair Work Commission

Confidentiality orders

See Fair Work Act 2009 ss.593‒594

The Fair Work Commission is generally required to perform its functions and exercise its powers in a manner that is open and transparent,^[1] and conducts proceedings in a manner that is consistent with the principles of open justice.^[2] Commission hearings are normally required to be public,^[3] and the Commission is required to publish its decisions.^[4]

The rationale for open justice has been summarised as follows:

‘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. 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.’^[5][citations omitted]

There are limited exceptions to the principle of open justice. In particular, the Commission has power to make orders:

• that all or part of a hearing be held in private
• restricting the persons who may be present at a hearing
• prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing, and
• prohibiting or restricting the publication or disclosure of evidence given at the hearing, documents referred to in the proceedings, and the Commission’s decision or reasons in relation to the matter.^[6]

Jobkeeper disputes may involve disclosure of sensitive business information and employees’ personal information, and a party may seek confidentiality orders under ss.593(3) or 594(1).

While the Commission has discretion to make orders under s.593(3) or s.594(1), departure from the principle of open justice is only justified where it would frustrate the administration of justice by unfairly damaging some material private or public interest.^[7] Open justice 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.^[8]

Representation by lawyers and paid agents

See Fair Work Act ss.12 and 596, Fair Work Commission Rules 2013 r 11–12A

A party to a jobkeeper dispute requires permission of the Commission to be represented by a lawyer or paid agent at a conference or hearing, unless they are represented by a lawyer or paid agent covered by s.596(4) of the Fair Work Act – see s.596 of the Fair Work Act and rule 12 of the Fair Work Commission Rules 2013.

Relevantly, a person’s lawyer or paid agent is covered by s.596(4) of the Fair Work Act if the lawyer or paid agent is an employee or officer of the person, or an employee or officer of:

• a registered organisation,
• an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009, or
• a peak council

that is representing the person.

The Fair Work Commission Rules 2013 also set out when the Commission must be notified that a person is represented, or is no longer represented, by a lawyer or paid agent.

References