Mr Simon Owen

[2019] FWC 8567

[2019] FWC 8567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mr Simon Owen
(AB2019/512)

COMMISSIONER LEE MELBOURNE, 20 DECEMBER 2019

Application for an FWC order to stop bullying – application for a confidentiality order

[1] At the hearing held by telephone on 16 December 2019, I determined to rescind an interim confidentiality order and make no order for confidentiality in respect to the application. 1 These are my reasons for doing so.

Background

[2] This matter involves an application for stop bullying orders to be made pursuant to s.789FC of the Fair Work Act 2009 (the Act) by Mr Simon Owen (the Applicant). The Respondent to this application is Air Services Australia. The matter was listed for preliminary conference on 21 October 2019 and a further conference on 7 November 2019. The matter did not resolve and was listed for hearing on 11 and 12 December 2019 in Hobart. At the commencement of the hearing, the Applicant’s representative sought that a confidentiality order be made pursuant to s.594 of the Act to suppress the name of the Applicant.

[3] Section 593 of the Act provides:

Hearings

(1)  The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2)  If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

(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.

(4)  Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)). “

[4] Section 594 of the Act provides:

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.

[5] As noted earlier, the Applicant’s representative made the application for the Applicant’s name to be kept confidential at the commencement of the hearing on 11 December. The Respondent indicated at the hearing that it did not object to the order being made, but that if it was made, that the identity of the person named in the application, Ms Chisolm, also be subject to a confidentiality order.

[6] It was agreed that the parties would file materials dealing with the application for a confidentiality orders, in the course of the following week. The hearing then proceeded with the first day being taken up by evidence. On the second day, at the conclusion of the Applicant’s closing submissions, the Applicant wholly discontinued the application and the proceedings concluded.

[7] The withdrawal of the application at a relatively late stage of proceedings gave rise to uncertainty as to the application for a confidentiality order made by the Applicant. There was also a general concern expressed by the Respondent’s representative at the conclusion of the proceedings as to the situation of the person named in circumstances where the matter had not reached finality. In the circumstances, I decided to issue an order which in effect, suppressed all material relating to the application for an order to stop bullying on an interim basis only. 2

[8] The matter was listed for hearing by telephone, on Monday 16 December 2019 to allow parties to be heard on the matter of the confidentiality order application generally.

[9] At the hearing on 16 December 2019, the Applicant continued to press the application made on the first day of hearing, namely to have the name of the Applicant made confidential. 3 The Applicant confirmed that it also agreed to the interim order being made on a permanent basis, however submitted that the Applicant’s name should be made confidential as a minimum.4 The Applicant referred to claims that the Applicant had been bullied in the past and has a current injury which would mean that medical information which is personal to him would be disclosed, which is in the material before the Commission. The Applicant made the submission that those who have been bullied in the past are likely to be bullied again. Further, that this could damage the Applicant’s prospects for further employment. The Applicant submits that this is an important ground of consideration for the Commission to take into account before such orders are made.

[10] The Respondent submitted that its position has changed since the hearing and objects to the order being made.  The Respondent submits that under s. 593 (2) of the Act, the Commission should hold a hearing in relation to a matter, in public, except where the Commission is satisfied that the hearing should be held privately, either because of the confidential nature of the evidence, or for any other reason. The Respondent submits that the Commission should not be satisfied that the evidence is of a confidential nature or that there is any other reason why confidentiality orders should be made. In support of this submission, the Respondent, in summary, submits:

•  It is well established that the principle of open justice applies in the Commission and the starting point is a presumption in favour of open justice. The onus is on the Applicant to satisfy the Commission that a departure from this position is justified in the circumstances; 5

•  That the Applicant has not demonstrated that departure from the position would frustrate the administration of justice by unfairly damaging some material private or public interest; 6

•  There is no evidence of endangerment of the continued working engagement; and

•  That public scrutiny involved will have a deterrent effect that is in the public interest. 7

[11] Further, the Respondent submits that there is no utility in making the order. The Respondent points out that the application has been public for some time and has been referred to by the United Firefighters’ Union of Australia (UFUA) on its website and its Facebook page in a way that made it easy for any UFUA member to identify the Applicant as the maker of the application. Further, on the date of the hearing in Hobart, the UFUA Facebook page made a post to the effect that "The members are wondering where we are that [sic] the Branch Secretary and Mel are in Hobart in a hearing yesterday and today," 8 which the Respondent submits would have effectively directed members to the Fair Work Commission website where they could see the name of the person who had made that application, given that there was only one matter to which the Respondent was a party to on that day.

[12] Further, the Respondent submits that the Applicant's anti-bullying application has been publicly listed as “Application by Owen” on the notice system of the Commission's website previously, including for an entire week leading up to the hearing.  Given that there is only one fire station in Hobart, the Respondent submits that one would assume that the Applicant would be readily identifiable. The Applicant’s representative was asked if it was agreed that the UFUA had published the fact the application was made through Facebook, naming the Applicant and making it public in that environment. The response was that they were not fully aware but had no reason to doubt the submission of the Respondent on that point. 9

Consideration

[13] As there was not finality to the proceedings, the principle that there will be a deterrent effect that is in the public interest is not relevant to the consideration here. However, there is no evidence before the Commission which demonstrates that there has been adverse treatment suffered by the Applicant as a result of the matter being made public as described above. There has also been no satisfactory explanation as to why the material before the Commission in respect to this matter, is of a confidential nature. There were no medical reports in evidence. Nor has there been evidence before the Commission that would frustrate the administration of justice, to warrant an order being made. Significantly, the Applicant’s union, the UFUA has not itself taken steps to maintain confidentiality and has in fact published information related to the application on social media. Taking into account all of the circumstances, I am not satisfied that the Applicant has established that there should be a departure from the presumption of the administration of open justice in this matter.

Conclusion

[14] It is for these reasons I declined to make the orders sought by the Applicant and rescinded the interim order made on 12 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR715416>

 1   PR715344

 2   PR715229

 3   PN10.

 4   PN14.

 5   PN22.

 6   PN24

 7   Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman[2015] FWC 774.

 8   PN29.

 9   PN58