Mr Luke Maxitanis v Department of Justice and Community Safety

[2020] FWC 902

[2020] FWC 902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Luke Maxitanis
v
Department of Justice and Community Safety
(U2019/7624)

COMMISSIONER CIRKOVIC MELBOURNE, 19 FEBRUARY 2020

Application for an unfair dismissal remedy – application for confidentiality orders.

[1] This is an application by the Department of Justice and Community Safety (the Department) seeking an order (the Order) pursuant to section 594 of the Fair Work Act 2009 (the Act), the effect of which de-identifies personnel, prisoners and procedures adopted by the Department that it submits require confidentiality.

[2] The Department applied for the Order in the context of a substantive application for unfair dismissal made against it by Mr Luke Maxitanis. The substantive application is currently before the Fair Work Commission (the Commission).

[3] The application under section 594, the subject of this decision, is consented to by Mr Maxitanis in so far as it relates to the personal information of a particular prisoner, but otherwise “neither consents nor opposes” the balance of the orders sought. 1 

Statutory provisions

[4] The Department seeks confidentiality orders pursuant to section 594(1) of the Act. Section 594(1) provides 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.”

Legal principles

[5] In Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 (“Amie Mac”), a case which concerned an application for orders to stop bullying, Vice President Hatcher helpfully set out the principles of open justice as well as what is to be considered in an application for confidentiality orders. 2 These are principles which have been adopted by the Commission on several occasions since.3

[6] I have considered the principles of open justice which are clearly relevant to the exercise of the discretion to make an order under section 594(1) of the Act. However, as was observed by Deputy President Gostencnik in Bowker & Ors v DP Work Melbourne Limited t/a DP World & Ors “…these considerations are not be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case…” 4

Consideration

[7] The parties do not dispute the power of the Commission to make the orders sought pursuant to section 594(1) of the Act.

[8] I have also taken into account sections 594 and 577 of the Act and the authorities wherein the principles of open administration of justice have been considered by the Commission. 5 I also considered the submission of the Department detailing the bases for the Order and in particular the following:

•  the evidence of Mr Ivan Calder as it related to the risk to the effectiveness of internal procedures should such information become publicly accessible;

•  the duty of care owed by the Department, under the Health Records Act 2001 (Vic) to maintain confidentiality of prisoner health records; 6 and

•  that Mr Maxitanis is not prejudiced by the making of the Order. 7

[9] The question of whether to make an order of the kind sought by the Department involves a consideration of open justice and fairness, taking into account the effects of the granting of the order on each side, including in some cases persons who are not parties to the proceeding.

[10] I am also persuaded that the purpose of the Order is to prevent material damage to private or public interest, in this case the effectiveness of the internal procedures of the Department, rather than an attempt to shield the Department from embarrassment, discomfort or inconvenience.

[11] I am satisfied that the appropriate balance is struck by granting the Order and that in doing so, the principles of open justice have not been undermined.

[12] For the reasons above, I am satisfied it is appropriate to grant the Order sought by the Department.

Conclusion

[13] I will issue the order separately to this decision.

COMMISSIONER

Appearances:

Mr L Howard of Counsel for the Department

M R Millar of Counsel for Mr Maxitanis

Hearing details:

9 October 2019, 10 October 2019, 29 October 2019 and 15 November 2019

Final written submissions:

•  Email from Applicant’s representative dated 3 December 2019; and

•  Respondent’s Supplementary Submissions Concerning the Section 594 Application filed 20 December 2019.

Printed by authority of the Commonwealth Government Printer

PR716873

 1   Email to Chambers dated 3 December 2019.

 2   At [6] – [13].

 3   See for example Application by Krcho [2020] FWC 181 at [11].

 4   Bowker & Ors v DP Work Melbourne Limited t/a DP World & Ors[2015] FWC 4542 at [15].

 5   See for example Amie Mac; MTCT Services Pty Ltd v CEPU & Ors[2019] FWC 1422 at [19] citing Les Laboratories Servier v Apotex Pty Ltd [2009] FCA 2097 at [15] – [16].

 6 Respondent’s Outline of Submissions Concerning the Section 594 Application dated 2 October 2019 at [7].

 7 Ibid at [8].