Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others

[2014] FWC 7381

[2014] FWC 7381

FAIR WORK COMMISSION

DECISION

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

Sharon Bowker; Annette Coombe; Stephen Zwarts
v
DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others
(AB2014/1260; AB2014/1261; AB2014/1266)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 21 OCTOBER 2014

Application for an FWC order to stop bullying; application to de-identify party; application refused

Introduction

[1] On 23 May 2014 Annette Coombe and Sharon Bowker each applied to the Fair Work Commission (Commission) under section 789FC of the Fair Work Act 2009 (Act) for an order under section 789FF to prevent each of the Applicants from being bullied at work. On 29 May 2014 Stephen Zwarts also made such an application. The applications have not been joined but are being dealt with by the Commission concurrently. Hereafter Ms Coombe, Ms Bowker and Mr Zwarts are collectively referred to as “the Applicants”.

[2] The Applicants are each employed by DP World Melbourne Limited (DP World) a respondent to each application. The Maritime Union of Australia (MUA) is also a respondent to each application.

[3] On 22 September 2014 I determined that certain threshold matters concerning whether particular allegations made by some of the Applicants as set out in the Applicants’ points of claim filed and served earlier in these proceedings described conduct that can properly be said to be conduct of a kind described in section 789FD(1)(a) of the Act. 1 The threshold matters are to be determined on the basis that it is to be assumed that the alleged conduct can be made out. There is to be no evidence led about the veracity of the allegations for the purposes of determining the threshold matters.

[4] Pursuant to sections 582 and 615 of the Act, the President made a direction on 29 September 2014 that the threshold matters be determined by a Full Bench of the Commission.

[5] By correspondence dated 23 September 2014 the MUA applied for orders under sections 593 and 594 of the Act which would have the effect de-identifying the parties to these proceedings, the workplace and location of the workplace at which allegations of bullying conduct is said to have occurred, the industry in which the bullying conduct is said to have occurred, the persons against whom bullying allegations are made, and restricting the identification of these persons and places in any decision of the Commission. Further the order would prohibit the publication of that information.

Consideration

[6] The considerations relevant to determining the MUA’s application are well understood and need not be rehearsed in this decision. I note that the considerations were recently set out in a decision of Commissioner Bissett in Justin Corfield 2 and I agree with the Commissioner’s recitation of them in that decision.

[7] The MUA submits in support of its application it would be prejudiced if the orders sought were not made and applications were not dealt with in private. It says that the allegations made by the Applicants in their points of claim against the MUA and its members are particularly damaging and if the allegations were made public at this stage, it is unlikely that a final decision as to whether the conduct alleged actually occurred will be handed down soon.

[8] Further, if it is successful in its application to have the threshold matters discussed above struck out, this would result in untested allegations being publicly aired but not tested in the Commission and no ruling as to their veracity. Furthermore the allegations that are made by the Applicants are particularly prejudicial to the reputation of the individuals named in the allegations. The prejudice is amplified because the industry in which the individuals work is a relatively close knit and small industry, and so the consequences for those individuals of the publication of the allegations could be wide reaching and might prejudice future employment prospects.

[9] Insofar as allegations are made against elected officials of the MUA, the officials have made and continue to make significant efforts to address bullying and harassment issues at various workplaces within the industry and if allegations are made public, these efforts will be negatively impacted and hampered. Furthermore the confidence of members of the MUA in these officials will be undermined resulting in a diminution in the capacity of the officials to represent these members and to carry out their duties as officials. It is submitted that the proposed orders strike an appropriate balance between protecting the interests of the MUA, its members and officials against whom allegations are made and the public interest in the open administration of justice.

[10] The Applicants have opposed the making of an order and say the proceeding should be conducted in open hearing and in the normal way according to the fundamental principle of open justice. They say that the MUA provided no evidence in support of its various grounds particularly in respect of the alleged prejudice that will be suffered if the order is not made.

[11] Whilst I have some sympathy with the position in which the MUA finds itself, namely that there is a possibility that allegations that are ventilated in the points of claim, the subject of the threshold matters, might be publicly aired, but the veracity of the allegations might not be the subject of consideration in this Commission for some time or perhaps not at all, on balance I am not persuaded to make the orders sought for the following reasons.

[12] Firstly, the risk of prejudice of the kind identified by the MUA in its application is not unique to the circumstances of this case. The risk of prejudice of that kind is in my view, common to many applications that proceed before the Commission, albeit that the risk of publication of the allegations is likely to be greater given the profile and standing of the MUA.

[13] Secondly, the allegations that are the subject of the threshold matters to be determined by a Full Bench, while noted in the points of claim, are particularised in correspondence to the branch secretary of the Victorian Branch of the Maritime Union of Australia dated 7 May 2014 which is also an annexed to the applications of Ms Bowker and Ms Coombe. Very early in the life of these applications, the MUA maintained that some of the allegations made by the Applicants should be determined as a threshold issue. However it took no steps to seek an order of the kind it now seeks before 23 September 2014. It may be that it took the view that it did not press for orders until I decided that certain matters should be dealt with as threshold matters, however the prejudice identified by it, and in particular the possibility that the veracity of the allegations might never be tested in and decided by the Commission nonetheless pertained, whether the jurisdictional objection was dealt with as a threshold matter or in the course of the conduct of the matter as a whole.

[14] Thirdly, any order that I might make would not operate to prevent the publication of the fact that the Applicants have brought charges against particular members and officers of the MUA under the rules of the MUA or of the particulars of the changes. Publication of the details of the charges that are being considered by the MUA would effectively defeat the operation of any order that I might make.

[15] Fourthly, it is not correct that if threshold matters are determined in favour of the MUA and as a consequence certain of the allegations contained in the Applicant’s points of claims are struck out, that the veracity of the allegations will not be tested. True it is that the allegations would not be tested in the Commission, but self evidently in hearing and determining the charges brought by Ms Bowker and Ms Coombe under the rules of the MUA, the veracity of the allegations will be tested pursuant to the processes set out in those rules and a determination would follow.

[16] Fifthly, evidence about at least two of the charges brought by Ms Bowker and Ms Coombe under the rules of the MUA and which are also to be considered as part of the threshold matters were the subject of evidence 3 given in open court during the proceedings brought by the MUA and Mr Mark Anthony Johnston, a delegate of the MUA, in the Federal Court of Australia4. The horse, so to speak, has already bolted in relation to those matters, and findings might well be made by the Federal Court in relation to those matters.

Conclusion

[17] In the circumstances I am not persuaded that the embarrassment and risk of prejudice outlined by the MUA in its application for orders outweigh the desirability for open justice in dealing with the Applicants’ applications. The application by the MUA for orders under section 593 and 594 of the Act is refused.

DEPUTY PRESIDENT

 1   Transcript PN 420

 2   [2014] FWC 4887 at [19] – [30]

 3   See MUA's outline of submissions in support of application for a stay and jurisdictional objection at p 5 item 2 and p 6 items 6

 4   The Maritime Union of Australia & Anor v DP World Melbourne Limited - VID 74/2014

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