Equans Electrical And Communications Pty Ltd

[2023] FWCA 1705

[2023] FWCA 1705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Equans Electrical And Communications Pty Ltd

(AG2023/1538)

EQUANS ELECTRICAL AND COMMUNICATIONS PTY LIMITED NSW ENTERPRISE AGREEMENT 2023-2026

Electrical contracting industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 12 JUNE 2023

Application for approval of the Equans Electrical and Communications Pty Limited NSW Enterprise Agreement 2023-2026 – confidentiality orders sought – commercially sensitive information – transparency – open justice – enforcement of terms of an industrial instrument –prohibition on pay secrecy – s 333B, s 333C and s 333D

1. An application has been made for approval of an enterprise agreement known as the Equans Electrical and Communications Pty Limited NSW Enterprise Agreement 2023-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Equans Electrical and Communications Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to include a different name of the Agreement ultimately made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

2. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 7.8(iv) – Deductions from NES entitlements on termination.

•  Clause 9.4(iii) – Compassionate Leave.

•  Clause 13 – Abandonment of Employment.

However, noting clause 7.7(ii) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I noted that the Applicant requested in the application filed by Ms Nikki-Lee Holden, HR Business Partner at the Applicant, that a redaction was sought of the customer/client names under schedule J of the Agreement. My Chambers wrote to Ms Holden and sought submissions and evidence in support of confidentiality orders for this request. Consequently, Ms Holden filed an F1 and made submissions substantially repeating the case law provided by my Chambers with the only addition being to claim that this information was commercially sensitive and pressing the request for confidentiality orders. No evidence to support these claims was put before the commission.

1. I listed the matter for hearing on 9 June 2023. The Applicant and an Employee Bargaining Representative appeared.

1. I note the following case law in which the principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) 1 as follows:

   “[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

   [3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

   [4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.”

2. I also note the following case law in respect of commercially confidential information:

   “[8] Genuine trade secrets and commercially confidential information may be the subject of orders restricting publication and disclosure where their exposure in the course of litigation may result in a litigant suffering the injustice of detriment at the hands of a competitor.”[1]

3. In the present matter before me, I note that the exposure is not one that results in the course of litigation but rather that the Applicant made the decision itself, to include this list in its Enterprise Agreement in order to distinguish the differing amounts of overtime payable to employees working at these client sites as opposed to others. It is my view that the Applicant could have found another way to express such a condition if the names were indeed so commercially sensitive that they would somehow harm the viability of the Applicant’s business. Further, I note that the Applicant has distributed the unredacted Agreement to all of the Employees covered by it and it will be required to do the same for all future employees.

1. I am also of the view that should an employee covered by the Agreement, seek to have their entitlements checked by a third party, that such third party would be unable to access the full terms and conditions in order to perform such a check, should the confidentiality orders be granted. I also note that requiring employees not to disclose this information would be a

2. breach of s.333B of the Act and inconsistent with the intentions of Part 2-9, Division 4 of the Act. On that basis, I decline to issue the confidentiality orders sought. I provided the Applicant with time to decide if they wished to proceed with the Application and they advised my Chambers on 12 June 2023 that they wished to proceed with the Application.

3. The Agreement is therefore approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 11 June 2026.

DEPUTY PRESIDENT

Hearing in Brisbane via Teams on 9 June 2023

Ms Nikki-Lee Holden appearing or the Applicant.

Mr Ward, Employee Bargaining Representative.

[1] Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman (AB2014/1324) VP Hatcher (as he then was).

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