Application by FBIS International - Protective Services Summary

[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

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, the matter of an application by FBIS International - Protective Services was heard. The applicant sought the release of certain documents produced pursuant to an order of the Commission. The dispute centred on whether the documents, which were produced in response to a Commission investigation, should be made available to the public or remain confidential. The applicant argued that the documents contained sensitive information that, if disclosed, could harm their business interests and reputation. Conversely, the opposing party contended that the public had a right to access these documents as part of ensuring transparency and accountability in the investigation.

The court was tasked with determining the balance between the applicant's right to protect confidential information and the public interest in access to documents. Key legal issues included the application of section 119 of the Competition and Consumer Act 2010, which deals with the confidentiality of information, and the public interest considerations under section 118, which allows for the disclosure of documents if it is in the public interest to do so. The court had to weigh the potential harm to the applicant against the public's right to know and ensure that the decision aligned with legislative intent and judicial precedent.

After careful consideration, the court found that the documents in question contained information that was not of a confidential nature and that their release would not cause significant harm to the applicant. The court emphasised the importance of transparency and accountability in regulatory processes, and ruled that the public interest in access to these documents outweighed the applicant's interest in confidentiality. Consequently, the application for the release of the documents was granted. The court ordered that the documents be made available to the public, subject to any redactions necessary to protect unrelated confidential information.

Application by FBIS International - Protective Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established