Jan De Nul (Australia) Pty Ltd

[2016] FWC 7528

[2016] FWC 7528

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Jan De Nul (Australia) Pty Ltd
(AG2016/4930)

DEPUTY PRESIDENT BINET PERTH, 28 OCTOBER 2016

Application for approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016 - Union standing to be heard.

[1] On 4 August 2016 Jan De Nul (Australia) Pty Ltd (Jan De Nul) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016 (Agreement).

[2] On 4 August 2016 Jan De Nul sought that the personal identifiers of the individual employees involved in the Agreement Application process be concealed from the public record.

[3] On 5 August 2016 a redacted version of the Agreement was filed with the FWC, with the identities of the individual bargaining representatives redacted.

[4] On 18 August 2016 the FWC received correspondence from the Australian Maritime Officers Union (AMOU) requesting that it be provided with a copy of the Jan De Nul Form F16 and Form F17 with a view to being heard as to the approval or otherwise of the Agreement by the FWC.

[5] On 23 August 2016 the FWC received correspondence from the Australian Institute of Marine and Power Engineers (AIMPE) requesting that it be provided with a copy of the Jan De Nul Form F16, Form F17 and any supporting documentation, with a view to being heard as to the approval or otherwise of the Agreement by the FWC.

[6] The FWC invited Jan De Nul to provide redacted versions of Forms F16 and F17 to the AMOU and the AIMPE by consent or apply for confidentiality orders. On 27 September 2016, Jan De Nul advised the FWC that it did not consent to providing the redacted versions.

[7] In accordance with Directions issued on 28 September 2016, Jan De Nul filed submissions and two Statutory Declarations in support of an application for confidentiality orders pursuant to section 593(3) and section 594(1) of the FW Act in the following terms:

“1. The following material is confidential:

(a) The personal identity and personal information of any individual employee bargaining representative(s) and/or any individual employee(s) produced, disclosed, named, revealed or referenced in this matter including, but not limited to, in any written document or in oral evidence including the responses to Form F16 Questions: 3.1, 4.1, 5.1, 5.2, 5.3 and the signature page, the Form F17s signature pages, instruments of appointment as bargaining representatives, the signature page of the Agreement (Part 7) and the Statutory Declarations filed in relation to this Application.

(b) Commercially sensitive information within the Agreement Application, including, but not limited to, the responses to Form F17 Questions: 2.3 (and attached Notice of Employee Representational Rights), 2.4, 2.5, 2.6, 2.7, 2.8, 2.10, 3.3, 3.4, 3.6, 4.2, 4.3 and 4.4, the responses to Form F16 Questions: 3.1, 4.1, 5.1, 5.2, 5.3, the Statutory Declarations filed in relation to this Application and additional correspondence with the Commission in relation to the approval of the Agreement referred to, disclosed, named, revealed or referenced in this matter including, but not limited to, in any written document or in oral evidence;

(together, the Confidential Material).

2. The Confidential Material shall not be published or made available for inspection.

3. The un-redacted versions of the following documents:

• Form F16-Application for approval of an enterprise agreement;
• Two Form F17-Statutory declarations of Jan De Nul in relation to the Agreement Application;
• Signatures page of the proposed Agreement;
• Statutory Declarations in support of this confidentiality Application

be inspected by Deputy President Binet for the purposes of determining this Application, and then be retained on the Fair Work Commission (Commission) file in an envelope which is not to be opened without the permission of a Member of the Commission as defined in s575 of the FW Act.

4. The Respondents not be permitted to access any redacted (or otherwise) documents in relation to the Agreement Application or this matter (including the Form F16 or F17 and other supporting documents), unless and until they have satisfied the Commission that they have standing to intervene.

5. The Respondents have liberty reserved to apply for a variation of these orders if they can establish any particular difficulty or impediment that the confidentiality orders give rise to in the presentation of their application for standing to the Commission.”

[8] Written submissions opposing Jan De Nul’s application for confidentiality orders were filed by the AIMPE and adopted by the AMOU.

[9] Sections 593(3) and 594(1) of the FW Act provide that:

“593 Hearings

…
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.”

“594 Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.”

[10] Section 593(3) and section 594(1) vest a discretion in the FWC to make an order prohibiting or restricting the publication of certain information in relation to matters before the FWC if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence or for any other reason.

[11] As noted by Deputy President Gostencik in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited t/a DP World; Maritime Union of Australia, The Victorian Branch and Others[2015] FWC 4542 at [20]:

“Ultimately, the question whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side.”

[12] The statutory declarations filed by Jan De Nul justify the request for anonymity based on a fear of victimisation or bullying. This fear is said to be based, in the case of the first declarant, on knowledge of the fears of other employees without any explanation of the basis of those other employees’ fears. In the case of the second declarant, the fear is said to be based on treatment of the declarant’s colleagues. Neither declaration contains particulars of the conduct upon which the fear is based, when or where it occurred or the identity of the victims or perpetrators of the conduct.

[13] There is insufficient evidence before me to be satisfied that the concerns of the declarants are so genuinely held or the risk of the alleged conduct so real so as to justify orders of the nature sought by Jan De Nul.

[14] Unlike the situation in Downer EDI Engineering Electrical Pty Ltd t/a Downer EDI Engineering [2016] FWC 5723 at [55] there is no evidence before me that Jan De Nul would be forced to withdraw the Application if the FWC is not prepared to maintain the anonymity of the employees involved in the Agreement approval process.

[15] The scope of the orders sought by Jan De Nul extend beyond protecting the identity of employees involved in the approval application process to the information contained in the Form F16 and F17 which Jan De Nul have characterised as ‘commercially sensitive information’.

[16] This information relates to the evidence tendered by Jan De Nul in support of its assertion that the Agreement was genuinely approved and that the Agreement satisfies the Better Off Overall Test. The information also includes information requested by the FWC in order to comply with its statutory reporting obligations under section 653 of the FW Act. I am not satisfied that this information reveals commercially sensitive information or reveals information that is not otherwise in the public domain (or will be if the Agreement is registered) or reveals information not otherwise lawfully ascertainable by the AIMPE or the AMOU.

[17] There is a need to balance a range of considerations in determining whether to issue a Confidentiality Order including the importance of open administration of justice.

[18] There is insufficient evidence before me to be satisfied that the concerns of the declarants are so genuinely held or the risk of the alleged conduct so real so as to justify orders of the nature sought by Jan De Nul which would remove any forensic capacity for the AIMPE or AMOU to test their evidence.

[19] The nature and scope of the orders sought by Jan De Nul has potential to unfairly and unreasonably inhibit the capacity of AIMPE and the AMOU to properly prepare and conduct their case in relation to standing and, if standing is granted, properly prepare and conduct their case opposing the approval of the Agreement.

[20] On the evidence before me I am not satisfied that Jan De Nul has demonstrated a basis for the orders which it has sought which would outweigh the scale of interference with the open administration of justice that is the inevitable consequence of the orders sought by Jan De Nul.

[21] Based on the evidence before me I am satisfied that the concerns of the employees involved in the Agreement approval process can be addressed while allowing the AIMPE and the AMOU the opportunity to properly prepare and conduct their case in relation to standing and, if standing is granted, properly prepare and conduct their case opposing the approval of the Agreement by the granting of confidentiality orders which limit the disclose of the identity of the employees involved in the Application approval process to the legal representatives of the AIMPE and AMOU.

DEPUTY PRESIDENT

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