See Fair Work Act 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. However anti-bullying matters may involve disclosure of sensitive personal information (including medical information) and may have the potential for unwarranted damage to the reputation of individuals.
The Commission has the power to make orders
- that all or part of an anti-bullying 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.
Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under s.594(1) of the Fair Work 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.
In relation to the anti-bullying jurisdiction established by Part 6-4B of the Fair Work Act, the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti-bullying proceedings would be likely to have the effect of rendering the relevant worker’s continuing engagement unviable. However, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely because allegations have been made which are embarrassing, distressing or potentially damaging to reputations.
In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant’s allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and such an outcome may reflect adversely upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour.
If a party applies for confidentiality orders on the basis that disclosure of sensitive information is likely to endanger the viability of a continuing working engagement, then that party will need to positively satisfy the Commission that this is the case. It is not sufficient for this simply to be asserted.