Horticulture Award 2020

[2021] FWC 1593

[2021] FWC 1593

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Horticulture Award 2020
(AM2020/104)

Agricultural industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 24 MARCH 2021

Horticulture Award 2020 – application for confidentiality order.

[1] On 16 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award). The application was published on the Commission’s website on the same day. A separate webpage was established for the matter and subscribers to the Horticulture Award were notified of the application.

[2] Directions for the filing of submissions and evidence were issued on 18 December 2020. Amended directions were issued on 5 March 2021. 1

[3] In accordance with the amended directions, the United Workers Union (UWU) filed submissions and 4 witness statements on 19 March 2021. The UWU also filed an application for a confidentiality order pursuant to ss.593 and 594 of the Fair Work Act 2009 (the Act) in relation to one of the witnesses (Witness 1).

[4] A copy of the statement of Witness 1 with the name and address of the witness redacted has been published on the Commission’s website. 2

[5] The order sought by UWU is set out below:

1. The name and address of the person who is described as Witness 1 in the witness statement filed by the United Workers’ Union in this proceeding (the Confidential Information) are to be kept confidential and no person shall publish or otherwise disclose the Confidential Information.

2. No person shall be permitted to access any document which contains the Confidential Information, or any document from which the Confidential Information may be discovered, on the file of the Fair Work Commission (Commission) in this proceeding.

3. Any part of the hearing of this proceeding in which Witness 1 is required to give evidence will be held in private, although a party to this proceeding will not be excluded from the hearing.

4. Any transcript of this proceeding must not be published to the extent that it records the Confidential Information.

5. Any decision of the Commission in this proceeding will not record the Confidential Information.

[6] The grounds upon which the UWU are seeking a confidentiality order are as follows:

•  The witness is a Protection Visa Applicant and is entitled to non-disclosure of their personal details. They are a vulnerable person and disclosure of their identity creates a risk of reprisal and reveals their location. Section 91X of the Migration Act 1958 (Cth) creates a presumption of non-publication in protection-related proceedings in all Courts of Federal jurisdiction. Although this is not a protection related proceeding, the UWU submits that the same reasoning applies to facilitate the administration of justice, that is, that the witness be entitled to anonymity so as ensure that their identity and location is not disclosed in Australia and their home country, thereby mitigating the risk of any reprisal.

•  The witness works in the horticulture industry in a rural small community and holds genuine fears not being able to secure further employment in that community if their identity and address is revealed to any extent.

[7] The application for a confidentiality order will be considered at the mention listed on 23 June 2021 at 9.30 am.

[8] Interested parties are directed to have discussions in relation to the order sought prior to the mention and to notify the Commission of the outcome of these discussions.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728045>

 1   [2021] FWC 1213.

 2   UWU, witness statement (redacted), 22 March 2021.