s.158 - Application to vary or revoke a modern award

Shop, Distributive and Allied Employees Association

Application to vary or revoke a modern award - application for confidentiality order

• [1] The applicant in the substantive proceedings, the Shop, Distributive and Allied Employees Association ("the SDA"), has applied for an order to keep confidential certain parts of the material it has filed in these proceedings. The Commission has powers to keep various matters confidential pursuant to sections 593 and 594 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). For the reasons that follow I have decided to make an order to similar effect as the order sought.

• [2] The substantive proceedings arise from the SDA's application to increase the minimum rates for junior employees in three modern awards, the General Retail Industry Award 2020, the Fast Food Industry Award 2020 and the Pharmacy Industry Award 2020.

• [3] In these proceedings persons, organisations and associations wishing to be heard in support of or in opposition to the application have been able to file submissions and/or evidence. For convenience I will refer to those who have done so, in this decision, as 'parties.'

• [4] The SDA has filed sixty witness statements of lay witnesses, along with expert evidence, an outline of submissions, and an outline of submissions in reply. The application for a confidentiality order does not relate to the expert evidence but does affect the lay witness statements and the outlines of submissions.

• [5] The SDA has itself applied redactions to the materials it has filed, filing both redacted and unredacted versions. In addition, as the substantive application is considered to be a major case, the Fair Work Commission's staff maintains a website for this case on which filed materials are published. The Commission's staff routinely apply redactions when publishing those filed materials. Those redactions applied by the Commission's staff do not have the force of a confidentiality order. The SDA now seeks an order to prevent publication of the content of its materials subject to redaction.

• [6] The application was made on 15 October 2025. The Commission invited objections to the order being made by 16 October 2025. One party raised an objection, which was resolved through private negotiation between the relevant parties. On 16 October 2025 I listed the application for hearing on 17 October 2025. The Notice of Listing was issued publicly via the Commission's website, including to any subscribers to that website, along with correspondence from my chambers indicating the listing was to hear the SDA's application for a confidentiality order. The Notice of Listing contained a hyperlink for remote attendance and expressly stated that the hearing was public. The draft order itself was published on 17 October 2025.

• [7] Only the SDA and another entity that had filed submissions, the Retail and Fast Food Workers Union ("RAFFWU"), entered an appearance at the hearing on 17 October 2025. The SDA made submissions in support of the application. RAFFWU did not oppose the application but sought procedural guidance as to whether the order if made would require closure of the hearing room. No-one appeared in opposition to the confidentiality order being made.

• [8] I have previously made confidentiality orders in these proceedings. Those orders were of a more limited nature. As this application relates to suppressing witnesses' names, I have decided to issue these written reasons.

• [9] As indicated above this application has been made pursuant to sections 593 and section 594 of the Fair Work Act. Those provisions confer a discretion on the Commission. If made the order would essentially prevent publication or disclosure to some of the persons who will be present at the hearing of matters contained in documents before the Commission, as contemplated under section 593(3)(d)(ii), and prohibit publication of certain evidence, and certain matters contained in documents lodged with the Commission or received into evidence (if the statements are tendered and received, and subject to any objections), as contemplated under section 594(1).

• [10] Under both sections the respective discretion to make such an order is enlivened if the Commission "is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason." This test was considered by a Full Bench in Santos WA Energy Ltd v Whittaker [2024] FWCFB 231. In that case the Full Bench considered the application of the principle of open justice and said:

"[31] We mentioned earlier that while the principle of open justice and the administration of justice are clearly relevant to the exercise of power under s 594(1) of the Act, the considerations are not applied in a vacuum. The statutory context is one consideration but there are others. For example, the significance that might attach to the consideration may be relevantly assessed by reference to the identity of the person, the extent to which the person is to be involved in the proceeding, or the nature of the interest that is to be protected by the orders sought. It is to be remembered that it is the parties to a proceeding which subject themselves to the open justice principle by bringing or defending the proceeding, rather than avoid that consequence by choosing to litigate their disputes by private arbitration. However, not all who are otherwise involved or who might be mentioned in litigation can be said to do so - witnesses who will give evidence and persons who are unwilling to give evidence but whose allegations may be agitated in the litigation come to mind. The weight of the principle of open justice on the question whether it is desirable to make an order protecting the identity of a person who will be mentioned in proceedings but who refuses and is not compelled to participate in them, take on a different complexion when it is understood that such a person did not opt to subject themselves to the litigation process nor the open and transparent processes involved in open court or before a tribunal conducted publicly."

• [11] These proceedings do not relate to a dispute as between specific parties that have opted to litigate to resolve a dispute affecting substantially only their private interests, but to an application to vary Modern Awards.

• [12] The redactions of the SDA's lay witness statements go to material that might identify the witnesses or reveal personal information. The witnesses' names, ages, dates of birth, and signatures are redacted. Annexures such as payslips are redacted. Some information that might tend to identify a witness, such as the store where the witness works, or their period of service, is also redacted. The redactions of the outlines of submissions are limited to a small amount of content that would identify the lay witnesses. The nature of these redactions is apparent from the context in which they appear, in documents that have been published including the statements and outlines when filed, and the Hearing Book published on 14 October 2025 in preparation for the hearing.

• [13] The preponderance of the lay witnesses are young people. Many were teenagers when their statements were made. Many of those were minors at the time. Some were aged under seventeen and would still be minors. Keeping their identities and personal information confidential serves those witnesses' interests but it also serves the public interest by promoting participation, by young people, in proceedings affecting junior rates.

• [14] None of the witnesses are themselves a party to the proceedings. As is obvious from the foregoing the redactions relate to matters in respect of which there would be little if any public interest in disclosure.

• [15] No person, organisation or association, whether they have filed materials in these proceedings or not, has sought to take issue with the redactions applied to the SDA's materials, or to apply for the unredacted materials to be made available. As indicated above no-one sought to be heard in opposition to the confidentiality order being made.

• [16] The redacted versions of the witness statements are readily navigable despite the redactions. Each witness has been given a unique identifier in the form of a set of two or three initials. The SDA's redacted outlines indicate which witnesses are in which state, and the award to which each witness's evidence is relevant.

• [17] Making the confidentiality order sought is unlikely to give rise to any need to close the hearing room during the hearing. That is because the witnesses' evidence will be able to be openly discussed by way of reference to their initials, and because the applicant and those parties that have filed submissions and/or evidence in opposition to the application have agreed that the SDA's lay witnesses are not required for cross-examination. The consequence of this agreement is that it is not anticipated that any of these witnesses will give oral testimony. If that changes for any reason and an issue arises in relation to whether the hearing room needs to be closed as a consequence, anyone sufficiently interested will be at liberty to apply to vary the confidentiality order.

• [18] For the reasons above I am satisfied that it is desirable to make an order preventing disclosure or publication of the redacted matter referred to above. So, the discretion is enlivened. I have decided to exercise the discretion in favour of making an order to similar effect as that sought by the SDA. An order[1] has been issued separately.

• [19] The order made is in similar terms to the order sought, with the primary difference being that any person with sufficient interest to do so will have liberty to apply to vary the order. I have expressed liberty to apply in these terms because of the significance of these proceedings, recognising that there may be persons or organisations other than the parties who may have a legitimate interest in being heard as to the proper balance of considerations of open justice and protecting witnesses' personal information. If such an application is made, then in weighing the discretion to vary, the Commission may take into account the fact that the order was made after a public hearing, notice of which had been issued via the Commission's website.

Mr D. Macken of Macken and Co, Lawyers, for the applicant

[1] PR792789.

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