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;

(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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Simon Owen

Details

AGLC: Mr Simon Owen [2019] FWC 8567
Case: [2019] FWC 8567
Decision Date: 20 DECEMBER 2019

CaseChat Overview and Summary

In the case of Mr Simon Owen, the applicant sought an order from the Fair Work Commission (FWC) to halt the alleged bullying he faced at his workplace. The respondent, his employer, opposed the application, arguing that the FWC lacked jurisdiction to intervene in the matter. The case was heard by the FWC, which had to determine whether it had the authority to address the applicant's claims of workplace bullying and, if so, whether it should grant an order to cease the bullying. Additionally, the FWC had to decide on the applicant's request for a confidentiality order to protect his identity and the details of the proceedings.

The central legal issues the FWC addressed were whether it had the jurisdiction to hear and decide on the applicant's claims of workplace bullying under the Fair Work Act 2009 (Cth). The FWC also had to consider whether it was appropriate to grant an order for confidentiality to protect the applicant's identity and the details of the proceedings. The FWC's role in these matters was to interpret the provisions of the Fair Work Act and apply relevant case law to determine its jurisdiction and the appropriate course of action.

In delivering its decision, the FWC concluded that it did have jurisdiction to address the applicant's claims of workplace bullying. The FWC found that the applicant's allegations fell within the scope of the Fair Work Act, which empowers the FWC to intervene in such matters. The FWC also found that it was appropriate to grant a confidentiality order to protect the applicant's identity and the details of the proceedings, in line with the principles of fairness and natural justice. The FWC's decision was based on a careful analysis of the relevant statutory provisions and a consideration of the potential impact of the proceedings on the applicant.

The FWC ordered that the respondent cease the alleged bullying and directed that a confidentiality order be put in place to protect the applicant's identity and the details of the proceedings. This outcome reflects the FWC's role in providing a fair and effective resolution to disputes arising under the Fair Work Act, while also protecting the rights and interests of all parties involved.

Orders