Application by Mapledoram

[2021] FWC 948

[2021] FWC 948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.593(d) - Confidentiality

Application by Mapledoram
(AG2019/2673)

DEPUTY PRESIDENT BULL SYDNEY, 22 FEBRUARY 2021

Application for production of documents and confidentiality order.

[1] This matter relates to an application by Mr David Mapledoram to terminate an enterprise agreement known as the ACES (Permanent Employees) Enterprise Agreement 2007 (the Agreement). On 16 February 2021, in support of the respondent’s opposition (the Australian Concert and Entertainment Security Pty Ltd) to the termination of the Agreement, Ms Lenette Ison, the Executive Manager Business, filed a witness statement which contained a document marked LI01. The document is referred to in Ms Ison’s witness statement at [71] and is said to contain the signatures of 243 employees who are opposed to the Agreement’s termination. Ms Ison has marked the document ‘confidential’ and it has not been provided to the applicant’s representative at this point in time.

[2] In filing the document marked confidential, the respondent advised that it would try to agree upon a confidentiality regime with the applicant’s representative, the United Workers Union (UWU), in order to make arrangements to serve this material on the applicant.

[3] On 17 February 2021, the UWU made an application for production of documents in respect of the document marked LI01 and confidential in Ms Ison’s witness statement, following which the matter was listed for a telephone conference on the morning of 19 February 2021.

[4] Following the telephone conference on 19 February 2021, at which the respondent advised that it required a confidentiality order to protect the names of the employee signatories contained in LI01, the respondent advised that it had not been able to reach agreement with the UWU on the confidentiality details of the relevant document and attached the proposed confidentiality order it wished the Commission to make.

[5] The UWU opposes the confidentiality order as it has not viewed the document and is therefore unable to make any submissions whether or not the document is in fact of a confidential nature and that it would be procedurally unfair to for a decision to be made by the Commission until the document is provided to the UWU.

[6] The respondent accepts that the applicant and his representative, the UWU, should be provided with attachment LI01 of Ms Ison’s witness statement, but states that it is concerned about the provision of current employee names to an ex-employee and to the UWU, which it states has limited coverage of its workforce. 1

[7] The confidentiality order sought by the respondent is to the effect that the document LI01 attached to Ms Ison’s is not published or disclosed and not used for any purpose outside the hearing of the matter by any party, their representative or witnesses. Such an order is within the Commission’s power to make under s.593(3)(d) of the Fair Work Act 2009 and is consistent with the common law implied undertaking that witness statements served by one party on another party are not to be used by the other party other than for the purpose of the proceedings in which they were prepared. 2

[8] The Commission is satisfied that the relevant document as sought should be produced to the applicant and his representative, the UWU, and to the extent necessary 3 together with the confidentiality requirements sought by the respondent. As the respondent is agreeable to the production of the document subject to its confidentiality request it is only necessary to issue a confidentiality order which the applicant or respondent can at any time make application to have set aside or varied.

[9] To the extent that the respondent has not complied with the Commission Rules in making its confidentiality order application they are dispensed with as per Rule 6.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727187>

 1   The UWU disputes that it has limited coverage

 2   See Hearne v Street [2008] 235 CLR 125 at 154-155

 3   See above