Application by FBIS International - Protective Services

[2014] FWC 855

[2014] FWC 855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Application by FBIS International - Protective Services
(C2013/7271)

COMMISSIONER GREGORY MELBOURNE, 4 FEBRUARY 2014

Application for release of documents produced pursuant to an order of the Commission.

[1] The Applicant in this matter, FBIS International Protective Services (Aust) Pty Ltd (FBIS), has sought an Order requiring ACG National Pty Ltd (ACG) to produce certain documents. ACG has not previously been involved in the proceedings and is apparently in competition with FBIS, having been successful in securing a contract for the provision of services FBIS previously provided.

[2] An Order was subsequently issued by the Commission on 16 December 2013. It required production of –

1. Letters of offer of employment for each of the Respondents with ACG National Pty Ltd (or any associated entity).

2. Employment contracts for each of the Respondents listed in Schedule 2 with ACG National Pty Ltd (or any associated entity).

[3] ACG complied with the Order on 24 December 2013. However, in an accompanying email it stated:

“We, however, object to the release of the information to the Applicant, FBIS International Protective Services, on the basis that the information is of a commercially sensitive nature and it also contains confidential information regarding our employees. The Applicant does not require this information as it already has knowledge of which of their former employees no longer works for them. The employment arrangements between ACG National P/L and it's employees is confidential and we have concerns that this information will be used on appropriately by the Applicant.” 1

[4] I subsequently provided an opportunity for both FBIS and ACG to provide written submissions about whether it is appropriate for the documents to be provided to the Applicant.

[5] I have considered those submissions and note, in particular, the submissions provided by FBIS that any sensitivity or secrecy surrounding the documents that might have existed has now “dissolved,” given the materials attached to witness statements filed in accordance with the directions issued in the substantive proceedings. Nevertheless, I also note that both FBIS and ACG do not object to the matter being resolved on the basis of the following Order being issued.

“The documents produced to the Commission pursuant to the order of Commissioner Gregory dated 16 December 2013 be released for inspection to the lawyers (including counsel) for the Applicant, provided that, without leave of the Commission:

(a) the documents are not be provided to any officer or employee of the Applicant; and

(b) the documents are not be used for any purpose other than for use in the present proceeding.

(c) if tendered in evidence, the documents be regarded as confidential evidence pursuant to section 594 of the Fair Work Act 2009.” 2

[6] Given the respective submissions I am satisfied that an Order in these terms is an appropriate means of resolving the matter. The Order will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

FBIS International Protective Services (Aust) Pty Ltd submitted on 29 January 2014.

ACG National Pty Ltd submitted on 3 February 2014.

 1   Email from Phillip Barravecchio to the Chambers of Commissioner Gregory on 24 December 2013 at 3:52pm

 2   Submissions of FBIS International Protective Services (Aust) Pty Ltd submitted on 29 January 2014

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