Mr Aaron Denis White v Kabi Organic Golf Course

[2015] FWC 3770

[2015] FWC 3770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Mr Aaron Denis White
v
Kabi Organic Golf Course
(C2015/3853)

COMMISSIONER SPENCER BRISBANE, 3 JUNE 2015

Application to revoke a Suppression Order in matter U2011/7833 - Suppression Order made to allow Applicant access to Respondent’s financial results to assess basis for genuine redundancy - revocation of order sought to mitigate damage to personal reputation and to address Respondent’s changed circumstances since hearing - matters not linked to Order - not persuaded reasons for making the Order no longer prevail - revocation application refused

Introduction

[1] This decision relates to the application by Mr Aaron White (the Applicant) made 1 to the Fair Work Commission (FWC) pursuant to section 603 of the Fair Work Act 2009 (the Act). The Applicant sought to revoke a FWC decision, being the revocation of the Suppression Order made in the s.394 matter, U2011/7833. The original unfair dismissal application, and now this application, were made by Mr Aaron White, in relation to the circumstances of his prior employment with Kabi Organic Golf Course and Orchard (the Respondent). The Applicant had been employed as the Kabi Orchard Manager and he objected that his job was made redundant.

[2] During the hearing of the Applicant’s unfair dismissal application, the Suppression Order was made (on 1 August 2011), to allow the Applicant access to the financial records of Kabi Organic Golf Course (the Respondent employer). The Respondent had argued that, based on the financial position of the Respondent, it had been necessary to dismiss the Applicant, as his job was redundant. Accordingly, the financial statements of the business were relevant to the proceedings. The Respondent objected to these statements being provided, particularly on a public basis, however, it was deemed necessary for the Applicant to have access to such documents and to cross-examine relevant witnesses on these documents.

[3] The Suppression Order was therefore made on the following terms:

“Fair Work Australia (FWA) orders, pursuant to s.594(1)(c) of the Fair work Act 2009 (Cth) that:

The financial results contained in paragraph 2 of the document Attachment 4 entitled “Financial details RC Merchant Trading as Kabi Organic Golf Course & Orchard” lodged with FWA is not to be published, released or used in any other way except for these proceedings before FWA.”

[4] The Applicant primarily argued that the continuation of the Suppression Order was damaging to his personal reputation, and that the circumstances of the Respondent’s operations were different to that conveyed at hearing.

Relevant Legislation

[5] Section 594 of the Act relates to confidential evidence as follows:

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...

[6] Section 603 of the Act provides:

603 Varying and revoking the FWC's decisions

(1) The FWC may vary or revoke a decision of The FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If The FWC makes a decision to make an instrument, The FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision…

[7] The Applicant does not seek to vary or revoke the s.394 "decision" in this matter, but rather the Suppression Order. The Commission is satisfied that the power pursuant to s.603 of the Act extends to revoking Orders of the Commission. In this regard s.598 of the Act is relevant:

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order.

Considerations

[8] The Applicant’s grounds for revoking the Suppression Order were as follows:

“I am requesting FWA revoke the (1 August 2011) suppression order on the basis the Respondent’s (Kabi’s) application contained false and misleading information as:

(a) There is no reliable evidence the business was for sale; or
(b) that the landholding was or ever has been for sale; or
(c) that the business has in fact closed its operation.

…

I am seeking to reserve the right to publish any evidence supplied by the Respondent in proceedings in 2011, in order to defend my reputation against the deplorable conduct of the Respondent and her employees who misled FWA and are now publishing false information on the internet, particularly the false assertion that I continue to be employed by Kabi.” 2

[9] In addition, the Applicant argued the revocation of the Suppression Order on the following grounds:

“(a) The Applicant contends that at the time the Order was granted, the information provided by the Respondent, suggesting the business was closed and the landholding was in the process of selling, was false and misleading; and

(b) The Applicant contends there is now substantial evidence that the “business” and in particular the orchard, has maintained operation beyond the alleged closure, on or about 28 April 2011; therefore

(c) Considering the Applicant’s high public profile during his employment as Kabi Orchard Manager and his on-going involvement in local politics and community groups, the Applicant should be granted the freedom to defend his reputation publicly in response to misinformation the Respondent has published in the media, on the internet and to Fair Work Australia.” 3

[10] The Applicant submitted that the continuation of the Suppression Order was damaging to his personal reputation. It was submitted on behalf of the Applicant that:

“Throughout his employment at Kabi, the Applicant promoted the business on the internet, in local and regional newspapers and on National television. This is best illustrated in a 2010 television segment the Applicant facilitated and hosted with celebrity Nikki Buckley on an episode of the lifestyle show “Guide to the Good Life”. This episode has been frequently repeated on national television and the segment can still be viewed on this link: (link omitted)

The Applicant is actively involved in local politics and community groups, has run as a Candidate for the Sunshine Coast Regional Council in 2008, has been President of the Noosa Biosphere Association Inc, Vice-President of Noosa Parks Association, is a current member of Noosa Residents and Ratepayers Association and is an active member of the Queensland Greens. In these capacities the Applicant speaks publicly at meetings, frequently author’s submissions and media releases, represents organisations and participates in social media. In these forums, the Applicant is often queried about the circumstances of his Kabi dismissal.” 4

[11] The case authorities establish that the revocation of an Order is a serious matter. The Act does not specify the matters to be taken into account in exercising the power to vary or revoke an Order under s.603.

[12] The power to revoke an Order is considered to fall within the wide definition of a decision as set out in Appeal by National Labour and Engineering Pty Ltd as follows:

“[36] The words other decisions of the Commission and any other proceeding before the Commission are sufficiently wide to include a decision to certify an agreement and the proceedings relating to an application for that certification. Thus, paragraphs 45(1)(e) and (eaa) refer to decisions of members of the Commission about certification of agreements. A recent decision at first instance, Re Rheem - Rydalmere Plant Industrial Action Order 2002 5, (Rheem), contains a discussion of the legislative genealogy of the power to revoke or set aside orders and awards, and of principles that should guide the exercise of the discretion conferred. We adopt in modified form the view there expressed and apply it to the statutory context of this matter.”6

[13] The power to vary or revoke has been considered by the Commission previously in the matter of Re Rheem-Rydalmere Plant Industrial Action Order 2002 7. In that matter Justice Munro said:

"The effectiveness of the power confers a discretion at large, but that discretion should be guided by the principles and considerations that go to the merits of making or refusing an order made under section 127. The applicant must satisfy the Commission by clearly showing that the reasons for making the order sought to be revoked no longer prevail." 8

(emphasis added)

[14] The decision in Re Rheem-Rydalmere is a decision in relation to an application to revoke an Order. An Applicant applying to the Commission to vary an Order must satisfy the Commission that the reasons for originally making the Order, in its terms, no longer prevail or have changed substantially, so as to warrant reconsideration. 9

[15] All of the matters in the Applicant’s series of correspondence have been considered, including the matters of prejudice that the Applicant argued, relating to the continuation of the Suppression Order.

[16] The current application also alleged that the circumstances related to the redundancy have changed since the making of the Suppression Order, such as to warrant a reconsideration of the Order. The Applicant’s reasoning is misplaced. The matters he refers to as changed circumstances, relate to the basis of the s.394 Decision, not the procedural basis for the making of the Suppression Order, regarding the non-publication of financial statements.

[17] The financial information provided by the Respondent was made available to the Applicant (via the Order) for the purposes of providing fairness and for use in the unfair dismissal proceedings only. The reasons for the making of such an Order, relate to the commercially sensitive nature of the financial information.

[18] After consideration of the additional points raised by the Applicant in his further correspondence dated 30 April 2015 and 1 June 2015, the initial refusal of the revocation of the Suppression Order is again confirmed.

[19] The reasoning for refusing the revocation Order is as stated 10:

“The decision (PR517414) issued on 2 December 2011, in your application for unfair dismissal (U2011/7833) determined that your termination of employment was a case of genuine redundancy.

The suppression order was made in relation to part of a document, provided during the course of those proceedings. The suppression order was made to enable you to have full access to the relevant financial details of the Respondent; to fully consider these and cross-examine the Respondent witnesses in relation to the financial records relied upon for the redundancy. It was open to you to appeal this decision.

The matters that you now raise to revoke the order predominantly relate, to the Respondent’s reasons for the redundancy (and that of another employee’s dismissal heard at the same time). The submissions provided do not relate to any prejudice experienced as a result of the suppression of the financial details.

Primarily, your submissions seek a rehearing or an appeal of the merits of the overall matter, not simply a revocation of the suppression order. Those alternative matters are not within my jurisdiction.”

[20] Contrary to the Applicant’s jurisdictional commentary (in his further correspondence), the consideration of the revocation of the Suppression Order, pursuant to s.603, is within the jurisdiction of the Member making the Order, and the issuing of the Directions to the Applicant is aligned with such, as is the issuing of this Decision. Other matters the Applicant relied on, may be relevant to an appeal of the substantive decision, as to whether the dismissal was a genuine redundancy. Such matters are not heard by the decision maker at first instance, but are relevant to an appeal of a decision, as per an application pursuant to s.604 of the Act.

[21] An application to appeal a Decision is made pursuant to s.604, which provides:

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[22] If the Applicant seeks to pursue an appeal of the 2011 Decision, which dealt with his dismissal, such is within the jurisdiction of his Honour Justice Ross, President of the Fair Work Commission. Any further application seeking such should be referred accordingly, as per the contact details provided from my Chambers.

[23] On the matters raised, the Applicant has not satisfactorily demonstrated that the reasons for making the Order no longer prevail. The Applicant’s reasons for revoking the Order do not persuade me that the Applicant should be given the opportunity to publish the Respondent’s financial statements. Furthermore, the revocation of the Order, effectively allowing him to do such, would not address the grievances that he raises. The grievances that the Applicant submitted, relate to defending the manner in which his employment with the Respondent was finalised. The Applicant is able to refer to the s.394 Decision which documents that jobs were made redundant in connection with the viability of the overall business. No suppression exists in relation to the reasoning in the resulting s.394 Decision.

[24] The Respondent was informed of the application; however, no material was sought from the Respondent as the Applicant had not made out the grounds for the revocation of the Suppression Order and the public interest in the finality of litigation, where no action is made out, should also be taken into account.

[25] The application to revoke the Suppression Order is declined. I Order Accordingly.

COMMISSIONER

 1   In terms of correspondence received from the Applicant on 16 March 2015 and 30 April 2015 and 1 June 2015.

 2   As set out in the Applicant’s application dated 16 March 2015.

 3   Submissions of the Applicant dated 2 April 2015 at paragraph 3.

 4   Ibid at paragraphs 4 to 5.

 5   Re Rheem-Rydalmere Plant Industrial Action Order 2002, Munro J, unreported, 9 April 2003, PR929970 at [35] - [40].

 6   Appeal by National Labour and Engineering Pty Ltd [PR926487], [36], as referred to in APESMA v BHP Coal PtyLtd[2012] FWA 4435, Spencer C.

 7   Re Rheem-Rydalmere Plant Industrial Action Order 2002, Munro J, unreported, 9 April 2003, PR929970, as referred to in Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet[2013] FWC 5995, Spencer C.

 8   Re Rheem-Rydalmere Plant Industrial Action Order 2002, Munro J, unreported, 9 April 2003, PR929970 at [36].

 9   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 5995, Spencer C.

 10   Provided in correspondence to the Applicant on 23 April 2015.

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