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[2014] FWC 8402
General information, not legal advice.
Fair Work Commission
2014-12-01
Commissioner Lewin
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op; Ben Ridgeway; Simon Ballingal; Chris Henry; David Power; Grant Crawford; Stephen Wells
Application for an FWC order to stop bullying - application by the Respondent for confidentiality orders - principle of the open administration of justice - status and nature of allegations made in the anti-bullying jurisdiction - confidentiality orders not granted.
[1] This decision relates to an application by Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-op (Plumbers Supplies) and the other named respondents (the Respondents) for the Fair Work Commission (the Commission) to make confidentiality orders in this matter on the following basis:
"1. That the hearing of Fair Work Commission matter AB2014/30, and all associated proceedings, be conducted in private;
2. That the names and addresses of persons attending the hearing of the aforementioned proceedings, and all associated proceedings, including Plumbers Supplies Co-op, not be published; and
3. That the whole of the decision and any orders in Fair Work Commission matter AB2014/30, and all related proceedings, be anonymised."
[2] Mr Peter Hankin, the applicant in this matter, opposed the confidentiality orders being made, except insofar as suppressing the personal addresses of any witnesses.
[3] I have decided not to make the orders sought, at this time and at this stage of the proceedings, for the reasons that follow.
[4] This decision does not preclude the Respondents from applying for confidentiality orders at a later time as the nature of the evidence flowing from the hearing of the substantive matter becomes clearer.
[5] The Respondents made the application for confidentiality orders on 3 October 2014. Mr Hankin responded to the application for confidentiality orders on 7 October 2014.
[6] The application for confidentiality orders was discussed at the hearing of 8 October 2014 in the following terms, as transcribed in paragraphs 41 to 70 of the transcript:
MR FORSTER: Indeed. I'm of the view that it's probably most appropriate at this point in time to simply hand up a decision of Bissett C in the anti-bullying jurisdiction, which appears to me to be the only occasion that a contested application to identify the record has been advanced, and I can provide a copy to my friend and also to you, Commissioner.
THE COMMISSIONER: Is it necessary to make this decision now?
THE COMMISSIONER: The hearing is conducted in private.
THE COMMISSIONER: And there is no transcript, unless I order it or the parties order it, and at an appropriate time before the transcript would be produced I could determine whether or not to impose a confidentiality order on it.
THE COMMISSIONER: So I'm not quite sure that it's necessary to make that now. Isn't there a respectable case that I should actually hear the evidence before I decide whether or not I blanket it?
MR FORSTER: In our submission, because of the number of allegations that have been raised against the individual employee respondents about behaviour that isn't connected to work, that is about behaviour that occurred outside of work, the potential for damage to be done to reputation because of that
THE COMMISSIONER: I'm more or less assuming that that's an arguable proposition and really just raising with you the question of when the determination of the extent of confidentiality should be made; whether it needs to be made now.
THE COMMISSIONER: At the present time there's no transcript of the proceedings. There will be one if I order it.
THE COMMISSIONER: I assume there's nobody in the room other than the people that are immediately involved in the matter.
MR FORSTER: Yes, that's quite right, and we don't cavil with the proposition that we could make that application at a later date or when we become aware
THE COMMISSIONER: I could decide it at a later date. I mean you'll put it on the record, I assume.
THE COMMISSIONER: And you've made it out in some detail and you're going to hand up this decision. I will receive it from you now.
THE COMMISSIONER: My associate will take it from you and I'll have a look at it now. I just wanted to raise with you this question because there are balancing considerations here. There is the question of public justice that is to be considered.
MR FORSTER: That's quite right, Commissioner. If I could...
THE COMMISSIONER: So there are balancing considerations and it's not as if I need to rush into this decision because it seems to me that I could impose a confidentiality order on the matter at any time.
THE COMMISSIONER: And whether or not I would do so might be informed by my consideration of the evidence, rather than making assumptions about what the evidence will reveal when it comes under cross-examination.
THE COMMISSIONER: If I get to the point where I become concerned about allegations that cannot be substantiated on any reasonable ground being made and are potentially defamatory, then at that point I might choose to impose a confidentiality order. If, however, the evidence proceeds on the basis where there are contested issues of fact - and I'm satisfied that there are matters of conduct which are serious in the jurisdiction - then I might not.
THE COMMISSIONER: So my inclination would be not to do that at the present time."
[7] As evidenced by the transcript, I made no decision at the hearing on 8 October 2014 to grant the confidentiality orders sought. At that time, the decision to do so would be subject to the consideration of the evidence as it unfolded. However, the course of the hearing on 8 October 2014 resulted in Plumbers Supplies proposing to undertake certain actions to remedy the concerns of Mr Hankin and the issue of the confidentiality orders was not revisited as the hearing concluded following Mr Hankin's acceptance, in-principle, of the proposal by Plumber Supplies.
[8] The Respondents pressed the application for confidentiality orders in their response to Mr Hankin's application for the Commission as presently constituted to recuse itself on the basis of apprehended or actual bias (see Peter Hankin v Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op & Anors [2014] FWC 7923).
[9] Due to the serious nature of the application for recusal made by Mr Hankin and the urgency with which a decision was required, I did not publish my reasons for not making the confidentiality orders sought by the Respondents at that time.
[10] The recusal decision, mentioned above, was published as a public document with no redactions or suppression of the facts, submissions, evidence or names of the parties as relevant to the making of that decision.
[11] The confidentiality orders sought by the Respondents rely on the Commission exercising its powers under two different sections of the Fair Work Act 2009 (the Act).
[12] Section 593(3) of the Act provides the power for the Commission to make orders in relation to confidential evidence given in hearings, as follows:
(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:
(ii) matters contained in documents before the FWC in relation to the hearing."
[13] Section 594 of the Act is general in nature and provides the power for the Commission to make confidentiality orders on the following basis:
(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;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter."
[14] The Respondents made the following submissions in relation to their request for the confidentiality orders to be made:
"1. Fair Work Commission Matter AB2014/30 and all related proceedings should be conducted in private and all names and addresses of those persons relevant to the proceedings, including Plumbers' Supplies Co-op, should be anonymised because the proceedings include:
1.1 allegations that are likely to cause severe embarrassment and unwarranted damage to the reputations of individual employees;
1.2 allegations about criminal conduct by individuals that are strenuously denied and unsupported by evidence;
1.3 allegations that Plumbers Supplies Co-op has sanctioned criminal behaviour (which it strenuously denies);
1.4 allegations that are likely to cause severe embarrassment to Plumbers Supplies Co-op and unwarranted damage to its reputation;
1.5 disclosure of sensitive information including but not limited to the names of clients of Plumbers Supplies Co-op and Mr Hankin's recent medical history and alleged diagnosis with a mental illness; and
1.6 allegations by Plumbers Supplies' Co-op that the proceedings are vexatious.
2. In all of these circumstances the requirement of the Commission to operate in an open and transparent manner are outweighed by the need to protect all persons involved in the proceedings from unwarranted damage."
[15] On 7 October 2014, Mr Hankin made a number of submissions in response opposing the application for confidentiality orders, which can be summarised as follows:
[16] I note that Mr Hankin does not object to maintaining the confidentiality of the personal addresses of the witnesses who may give evidence before the Commission.
[17] As noted above, at the hearing of 8 October 2014, I discussed the issues involved in granting a confidentiality order at that time. During the hearing, the Respondents handed up a copy of the decision of the Commission in Justin Corfield [2014] FWC 4887, as the only decision available, at the time of the hearing, in relation to contested confidentiality orders in the Commission's anti-bullying jurisdiction.
[18] Mr Hankin's submissions on the recusal application, made on 31 October 2014, obliquely discussed the question of making confidentiality orders, however, made no additional submissions to those advanced on 7 October 2014.
[19] The Respondents, in response to the recusal application, revisited the question of making confidentiality orders with the following submissions:
"81. Finally, although this issue was not raised during the mention on 31 October 2014, the Respondents' respectfully request that the Commission revisit its application for anonymity orders.
82. During the hearing on 8 October 2014 the Commission declined to make anonymity orders but did not dismiss the application entirely. Rather, the application was left on foot pending the progress of the matter.
83. In his written submissions dated 31 October 2014 the applicant said in relation to the Commission:
"The Applicant wonders what the general public would make of this sorry saga should it ever come to their attention."
84. Given that this comment followed an outrageous allegation by the applicant claiming that the conduct of the Commission in these proceedings has been designed to force the applicant to resign thus burying his applications, it is difficult to see how any reasonable person could interpret this comment as anything other than a threat to defame the Commission in public.
85. The respondents' fear the same for each and every one of them and contend that the anonymity orders sought (with the exception that transcript of the proceeding must be taken) should now be made."
[20] The considerations relevant to the exercise of the discretion to grant the confidentiality order in the context of the anti-bullying jurisdiction are set out in the decision of Commissioner Bissett in Justin Corfield, referred to above, with which I agree.
[21] The confidentiality orders sought by the Respondent can be characterised as seeking that the Commission exercise its powers to make confidentiality orders as follows:
[22] The presumption in s 593(2) of the Act is that if the Commission holds a hearing, it must be in public, subject to certain limited circumstances where it may be conducted in private. Further, the presumption in s 601(1) of the Act is that certain decisions of the Commission must be in writing and under s 601(4) of the Act those decisions must be published. Exercising the discretion to grant the confidentiality orders, all or in part, will have a varying degree of effect on the principle of open justice as it applies in the Commission.
[23] The Respondents submitted the Commission should exercise its powers to make the confidentiality orders sought on the basis that the allegations made by Mr Hankin in his application are of a serious nature and include allegations of criminality or complicity in criminal behaviour, which may cause serious embarrassment and unwarranted damage to the reputation of the individual employees named as respondents and to Plumbers Supplies. In addition, Plumbers Supplies was concerned that the names of its clients may be disclosed and that the proceedings were vexatious.
[24] The principal argument made by the Respondents involves the possible serious embarrassment and unwarranted damage to the reputation of the Respondents. At this stage of the proceedings, such embarrassment and damage can only arise on the basis of the mere fact of the application in this matter having been made. The substantive aspects of the application are yet to be heard. The potential embarrassment and damage raised by the Respondents is not unique to the circumstances of this matter or to any of the 37,000 other applications made to the Commission each year.
[25] I refer to the decision of Commissioner Bissett in Justin Corfield in which the Commissioner referred to the matter of Day v Smidmore and Others (No 2) (2005) 149 IR 80; [2005] NSWIRComm 406 (Smidmore). Smidmore is a decision of the New South Wales Industrial Relations Commission in Court session, which considered the making of confidentiality orders in that forum. The terms of the relevant legislation in exercising the discretion in that forum were substantially similar to those of this Commission. Commissioner Bissett summarised the approach of courts and tribunals in weighing the principle of open justice with any embarrassment or distress felt by a party to proceedings as follows:
"As was explained in Smidmore, mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application."
[26] Further, the key argument made by the Respondents is that it is the allegations or the nature of the allegations that should dispose the Commission to grant the confidentiality orders sought. Such arguments were considered in in Smidmore and rejected as follows:
"[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'...
"[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.'"
[27] I am not satisfied that it is desirable for the Commission to make confidentiality orders for the hearing to be held in private, for the publication of the names of persons attending the hearing to be prohibited or restricted, or for the prohibition or restriction of the publication of the names of any persons referred to in decisions in relation to this matter. This is because the mere embarrassment, distress or damage that may be caused to the Respondents by the publication of these allegations is not sufficient to displace the presumption in favour of the open administration of justice.
[28] In terms of the names of clients of Plumbers Supplies being published or the addresses of persons appearing at the hearing being published, the Commission does not propose to publish those details and accordingly I am not satisfied confidentiality orders in those terms are desirable at this time.
[29] The Respondents will have a further opportunity to make an application for confidentiality orders if, for instance, it became clear that the details of clients of Plumbers Supplies or personal addresses of persons attending the hearing were relevant details in relation to determining substantive issues in contention between the parties or in deciding any procedural issues that arise in relation to the Commission's handling of this matter.
[30] Finally, as I discussed in paragraph 21 of my decision in Peter Hankin v Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op & Anors [2014] FWC 7923, I have refused to strike out Mr Hankin's application as vexatious. As a result, this is no longer a ground upon which the application for a confidentiality order can be sustained.
[31] In balancing the interests of the open administration of justice against the embarrassment or perceived damage that the Respondents may suffer, I am not satisfied that it is desirable to make the confidentiality orders sought by the Respondents and accordingly the Respondents' application for confidentiality orders is refused.
[32] This decision does not preclude the Respondents from applying for confidentiality orders at a later time as the nature of the evidence flowing from the hearing of the substantive matter becomes clearer.
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(2005) 149 IR 80
(1991) 26 NSWLR 131