Rigforce Pty Ltd T/A Rigforce

[2019] FWC 3023

[2019] FWC 3023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Rigforce Pty Ltd T/A Rigforce
(AG2019/835)

COMMISSIONER LEE SYDNEY, 8 MAY 2019

Application for confidentiality orders for an Agreement approved on 5 April 2019.

[1] Rigforce Pty Ltd T/A Rigforce (the Applicant) made an application for approval of the RFD Enterprise Agreement 2019 (the Agreement) on 21 March 2019. The application was allocated to me and I approved the Agreement on 5 April 2019.

[2] On 9 April 2019, four days after the Agreement was approved, the Applicant filed an application for confidentiality orders pursuant to s. 594 of the Fair Work Act2009 (The Act) in relation to the Agreement which sought the following:

(a) For the names, signature and authority to sign of the employee bargaining representative who signed the final page of the RFD Enterprise Agreement 2019 in matter AG2019/835 to be redacted;

(b) For the name and contact details of each of the employee bargaining representatives contained within the Form F16 in support of matter AG2019/835 to be redacted;

(c) A copy of the original documents as filed to remain in a sealed envelope on the Commission file, not to be opened without application to the Commission and notification to the Applicant; and; and

(a) Any other order(s) the Commission see fit.

[3] On 12 April 2019, I listed the matter for hearing. At the hearing, I raised a concern that irrespective of the merits or otherwise of the order sought, there was no power to make the order as the Agreement had been approved. Subsequent to the hearing, the opportunity was provided to the Applicant’s representative to provide written submissions on the matter and submissions have since been provided.

[4] The power to make confidentiality orders is found in s. 594 which is in the following terms:

(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.

(Emphasis added)

This is an application to exercise powers under s. 594 to make orders. However, there is no “matter before the FWC” to make the order “in relation to.” The matter ceased to be before the FWC once the Agreement was approved.

[5] However, the Applicant submits that the Commission has the power to contemplate the issuing of confidentiality orders pursuant to s. 602 (1) of the Act. Essentially, the Applicant contends that this application is analogous to that of the decision of RotoMetrics Australia v AMWU. 1 In RotoMetrics, the Full Bench was dealing with an appeal against a decision of the Commission where an agreement approval included a note that the AMWU was covered by the Agreement when in fact the AMWU had not complied with s. 183 of the Act. Therefore, the note was made in error. The Full Bench observed such an error might have been able to be corrected under s. 602 of the Act.

[6] This situation however is somewhat different to that in RotoMetrics. In RotoMetrics, the Commission had made an error in including the note that the AMWU was covered by the Agreement. In this matter, it is not apparent and nor is it suggested that the Commission has made an error in not granting a confidentiality order at the time the approval was made. It could not be an error as there was no application at that time.

[7] It is accepted that s. 602 is intended to be the statutory analogue to the “slip rule “in superior courts. 2 It can apply where the mistake or error is the result of inadvertence by a party’s legal representative.3 However, it is a power to correct a mistake. The correction should be such that had the matter been drawn to the court’s attention, the correction would have been made at once. Where the proposed corrections would alter the substance of an order in a matter on which there might be a real difference of opinion, the rule does not apply.4 . In this matter, the application would have the effect of making the names of the bargaining representatives confidential. I do not agree with the submissions of the applicant that the Commission was likely to have granted the order had it been made prior to the approval of the Agreement. In Ron Southon, the Full Bench stated: “Completed Forms F16 and F17 should be treated as documents that are freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality.”5 The Full Bench then remitted the matter to Commissioner Bissett who made following observation: “… in becoming a bargaining representative, an individual has agreed to participate in a public process - that is the negotiation of an enterprise agreement.”6 It is apparent that in this matter, any decision as to whether to make the order sought would turn on the submissions and evidence as to why such an order should be made and balancing the considerations alluded to in the Ron Southon decisions,7with the circumstances that may justify an order of confidentiality. That consideration may or may not result in the making of an order. It cannot be accepted that it was likely that the order would have been granted or that the order would have been granted at once. The “slip rule” does not apply in such circumstances.

[8] The Agreement has been approved. It was done so within, and not more quickly than, the time lines stipulated in the email to the Applicant from the Commission dated 29 March 2019. The Applicant did not make the application until after the Agreement was approved. In the circumstances, for the reasons set out above, it is not appropriate to use the powers of s. 602 of the Act to make the order sought. There is no obvious error, defect or irregularity in relation to the approval decision.

[9] I conclude there is no power to make the orders sought by the Applicant pursuant to s. 594 as there is no matter before the Commission. I further conclude for the reasons set out above that it is not appropriate to use s. 602 of the Act to make the orders sought and I decline to do so.

[10] I note that the approval decision is the subject of an appeal to a Full Bench of the FWC. That matter is clearly before the Commission. However, any power to make an order in relation to that matter is only exercisable by the relevant Full Bench.

COMMISSIONER

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 1   [2011] FWAFB 7214.

 2   Schweppes Australia Pty Ltd v United Voice – Victoria Branch[2012] FWAFB 7858 at [348]; [2011] FWAFB 7214 at [29].

 3   L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590at [6].

 4   Commissioner of The Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16 at [14].

 5   Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd[2016] FWCFB 8413 at [28].

 6   Ron Southon Pty Ltd[2017] FWC 775 at [18].

 7   [2017] FWC 775; [2016] FWCFB 8413.