Karijini Rail Pty Limited

[2018] FWC 7197

[2018] FWC 7197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Karijini Rail Pty Limited

(AG2018/3844)

Deputy President Beaumont PERTH, 28 NOVEMBER 2018

Application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018.

1. On 14 August 2018, Karijini Rail Pty Ltd (Karijini) made an application under s 185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (the Agreement).  The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made a written submission to be heard regarding its opposition to the approval of the Agreement on 29 August 2018. 

1. Subsequently, Karijini made an application for an order under ss 593(3)(d), and 594(1)(c) and (d) seeking the suppression of the identity and address of the bargaining representative and employee referred to in the relevant forms and Agreement.  This decision deals with the order sought and reasons why I was satisfied it was desirable to make the Order.[1]

Background

1. At the time of making the Agreement, Karijini had two employees, one of whom was an employee bargaining representative.  The employee bargaining representative signed the Agreement in accordance with Fair Work Regulation 2009 r. 2.06A.  The Form 16, Form 17, and the Agreement included the name of the employee bargaining representative, and the Form 16 and the Agreement included the address.  The name of the employee was referred to in the Form 17.

1. On 20 August 2018, the CFMMEU emailed the Commission requesting copies of the Form 16 and Form 17 filed in the matter.

1. By emails of 22, 23, and 27 August 2018, copies of the Form 16 and Form 17 filed in the matter were provided to the CFMMEU.  By email of 29 August 2018, the CFMMEU made a written submission seeking to be heard in opposition to the approval of the Agreement.

1. By email of 17 September 2018, the Commission notified Karijini’s legal representative of the CFMMEU’s submission regarding its request to be heard. Subsequently, on 17 October 2018, Karijini made an application for an order under ss 593(3)(d) and 594(1) requesting that the name and address of the employee bargaining representative, and the name of the employee, not be published in the Commission’s decision with respect to the application under s 185 for the approval of the Agreement, and that the same details be kept confidential on the Commission’s file. The application extended to the CFMMEU being prohibited from publishing the same.

1. By email of 1 November 2018, the Commission notified Karijini that the copy of the F16 and F17 that had been provided to the CFMMEU had redacted from it some of the personal details of the two employees.  The redacted information did not include the name of the employee bargaining representative. 

1. In support of its application, Karijini relied upon two witness statements from Mr Graham Robert Butler, Director of Karijini (Mr Butler).  Some of the contents of Mr Butler’s first witness statement[2] were a source of consternation for the CFMMEU.

1. In its correspondence to the Commission on 9 November 2018, the CFMMEU, through its National Legal Officer, Mr Alister Kentish (Mr Kentish), acknowledged that there had been discussions with the legal representative of Karijini, a Mr Simon Billing (Mr Billing), and advised the Commission that Karijini’s application for confidentiality orders was strongly opposed.  Mr Kentish continued to the effect that if Karijini wished to press the contents of Mr Butler’s witness statement which had given rise to its opposition to the order sought, then the CFMMEU asked that it be given the opportunity to respond.

1. On 13 November 2018, directions were issued regarding the application for the order under ss 593(3)(d) and 594(1).  Shortly, thereafter on 15 November 2018, Mr Billing informed Chambers that the parties had conferred and an agreement had been reached concerning the order that both Karijini had agreed (the draft order).  On 16 November 2018, confirmation was received of the same from Mr Kentish.

1. Karijini advanced that the two employees had concerns about their privacy and the possible effect on their relationship with other employees engaged on a particular project, if their names were published.  It was the case, according to Karijini, that the orders would not result in any prejudice to the CFMMEU, and would not offend the principal of open justice.  Karijini agreed that it would not press the parts of Mr Butler’s witness statement that had given rise to the CFMMEU’s opposition to the order sought. 

1. On 16 November 2018, amended directions were issued regarding the application for the order.  Karijini filed and served material in accordance with that direction on 21 November 2018.

1. In response to Karijini’s material filed on 21 November 2018, and noting the specific grounds of the application, on 23 November 2018 the CFMMEU reiterated its consent to the draft order and acknowledged that the issues that had given rise to concerns had in effect been dealt with.  It was the case that the CFMMEU would only seek to be further heard on the question of confidentiality orders if the Commission were minded to make a determination on the basis of the matter referred to in those parts of the material of Karijini that Karijini had formally withdrawn. 

1. The parties consented to the matter being determined on the papers, and therefore the matter proceeded on that basis. 

The Act

1. Sections 593(3) and 594(1) provide:

   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.

Consideration

1. Sections 593(3) and 594(1) give the Commission discretion to make an order prohibiting or restricting the publication of certain information in relation to matters before the Commission.  The exercise of the discretion is subject to the Commission being satisfied that it is desirable to make an order because of the confidential nature of any evidence, or for any other reason.

1. The confidentiality order applied for is one that is open to the Commission to make under ss 593(3)(d) and 594(1)(c) and (d), as the names and address that are sought to be suppressed all come within documents before the Commission including evidence within or attached to a Form 16 and Form 17. 

1. I have initially considered whether the making of the order sought would contravene the requirements in s 601(4)(b), and consider that is not the case.  Unlike the circumstances in Boeing Defence Australia Limited,[3] or Logan Moulders Pty Ltd,[4] this case concerns the names and address of an employee, or employee bargaining representative, which are not terms of an enterprise agreement. It would appear that s 601(5)(g) contemplates the suppression from publication of this type of information. 

1. In suppressing the name and address of the employee bargaining representative and the name of the employee, attention turns to balancing the considerations of open justice and the interests of fairness and justice, as was observed in reasoning of the Deputy President 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.[5]  That balancing of interests inevitably leads to regard being had to any potential for prejudice to the interest of the CFMMEU or its members in the advancement and determination of its intervention in the application for approval of the Agreement. 

1. In Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering[6] (Downer) an order was granted suppressing the employee’s signature, name, address and title on the employee signature page and the employee’s affidavit unless a further direction or order of the Commission was made.  

1. The employee in Downer had concerns regarding victimisation and therefore undertook to sign the enterprise agreement only if his identity remained confidential.  The applicant in Downer clearly stated that if the Commission was not prepared to maintain the anonymity of the employee, they would be forced to withdraw the application for approval of the Agreement which, they submitted, in all other respects was validly made.[7]

1. In reaching her decision to make the order, the Commissioner referred to ‘a need to balance a range of considerations in considering a suppression Order, including the right to the open administration of justice’.[8] The Commissioner was, however, satisfied that the respondent party had not made out their case as to how the suppression of the employee’s signature, name, title and address pursuant to section 593(d)(ii), and 594(1)(c) would prejudice it,[9] and that the employee had provided a reason for the requested confidentiality.[10] 

1. Orders were made in Yancoal Mining Services Pty Ltd[11]  to ‘maintain the privacy’ of affected employees who had signed an enterprise agreement that the employer sought approval of.  The Deputy President observed that ‘there was a general acceptance by the CFMEU that it would be reasonable to suppress specified personal information’.[12]  The orders were, however, confined by the Deputy President to the home address and personal contact details of the affected the employees having found the public interest was not served in publishing them. 

1. Mr Butler gave evidence through two witness statements.  He confirmed that he had spoken to the two employees on 18 October 2018 and that they had informed him to the effect:

They are concerned that if their names are not kept confidential in relation to the Karijini Rail enterprise agreement approval application currently before the Commission, that their relationship with other employees at Roy Hill would be at risk of being strained.[13] 

1. On being asked to provide a statement of evidence, or affidavit to the Commission regarding the order sought by Karijini, the employees informed Mr Butler to the effect:

I am too anxious and nervous about the situation to provide such a statement but were prepared to confide in me and for me to convey their concerns to the Commission.[14]

1. Mr Butler’s evidence was:

I am concerned that if the current dispute over the enterprise agreement escalates, they are worried and anxious about what may happen to their onsite relationships with over drivers.[15]

1. The order sought by Karijini is not directed at preventing the publication of the identity of a party to the proceedings.  Further, it is not evident from the submissions of the CFMMEU concerning its basis for being heard under s 590(1) that the orders sought by Karijini would prejudice it in advancing the application under s 590(1) or the determination of the same. 

1. The CFMMEU have reached agreement with Karijini regarding the extent of a confidentiality order.  Where the parties have adopted a position of cooperation concerning a dispute between them, and have conferred so as to enable them to arrive at a draft order by consent, then clearly this must be given due consideration.  However, it is not the case that this Commission is obliged to accede to the application for such orders simply because the parties have agreed to the directive by which they will be bound.  The discretion is to be exercised if the Commission is satisfied it is desirable to do so and while the discretion is arguably broad, it is accepted that the question of 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’.[16]

1. I am satisfied that the evidence in this case supports the making of the Order notwithstanding that the information sought to be supressed does not appear to be confidential in nature.  However, there is another reason for making the order. That is, there appears to be an appreciable concern expressed by Mr Butler about the welfare of the two employees, and I am mindful that the reason for the absence of a witness statement from either employee appears most plausible.  That reason is premised upon the potential breakdown of work relationships and the anxiety which emanates from the same.  The evidence and submissions before me do not indicate that that the making of such order would prejudice the CFMMEU and as much is indicated by their consent to the draft order that was provided.  It is not the case that the making of the order sought would be of such detriment to open justice that the abovementioned considerations would be outweighed. 

Conclusion

1. Therefore, I have accepted on balance, while not providing a determination against any party to the application, that there are sound reasons advanced for the requested confidentiality.  I am satisfied in the context of these proceedings, that the making of the order sought does not undermine the principle of open justice, will not prejudice the CFMMEU in advancing its request under s 590(1), or seek to impede scrutiny of the Agreement that is sought to be approved.  It is therefore appropriate to suppress the identity and address of the two employees in terms of Order[17] that will be issued concurrently with this decision.

DEPUTY PRESIDENT

<PR702600>

[1] PR702601.

[2] Witness Statement of Graham Robert Butler 18 October 2018. 

[3] [2018] FWC 4019 [28].

[4] [2010] FWAA 8632 [7].

[5] [2015] FWC 4542 [20].

[6] [2016] FWC 5723 [53] – [58].

[7] [2016] FWC 5723 [55].

[8] [2016] FWC 5723 [58].

[9] [2016] FWC 5723 [58].

[10] [2016] FWC 5723 [59].

[11] [2016] FWC 6436 [8]-[9].

[12] [2016] FWC 6436 [8] (emphasis added).

[13] Witness Statement of Graham Robert Butler 21 November 2018 [4].

[14] Witness Statement of Graham Robert Butler 21 November 2018 [6].

[15] Witness Statement of Graham Robert Butler 21 November 2018 [5].

[16] 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 [20].

[17] PR702601.

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