The Australian Industry Group

[2012] FWA 7789

[2012] FWA 7789

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

The Australian Industry Group
(AM2012/218)

COMMISSIONER JONES MELBOURNE, 12 SEPTEMBER 2012

Application for Confidentiality - Modern Award Review 2012

[1] This decision concerns an application by the Australian Industry group (Ai Group) filed under s.594 of the Fair Work Act 2009 (the Act) in relation to witness statements filed in Fair Work Australia (FWA) on 13 August 2012 in support of the Ai Group’s application pursuant to Part 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2010. The variations sought to the Award are in relation to penalty rates.

[2] The Draft Orders sought by Ai Group have the effect of:

(a) Limiting access to the witness statements to:

i. Employees of Fair Work Australia who need to deal with the Statements in the ordinary course of their duties;

ii. The Australia Council of Trade Unions, not including its affiliate unions;

iii. The Shop, Distributive & Allied Employee’s Association, not including its members;

iv. The National Retail Association, not including its members; and

v. ACT & Region Chamber of Commerce & Industry, not including its members.

(b) Access to the witness statements by any other party being:

i. Being limited to the provision of a redacted copy (for this purpose Ai Group has provided redacted copies); or

ii. Where a full copy is sought, the application be subject to a hearing before FWA.

(c) The transcript of any oral evidence by any of the witnesses whose statements being marked confidential except as to the parties specified in (a).

Context

[3] The context in which this application has been made is the Directions issued by Senior Deputy President Watson on 9 July 2012 described as “Modern Award Review 2012 - Penalty Rates & Public Holiday”, which specifies a timetable for filing of submissions, witness statements and relevant documentary material by applicant parties and other parties and states, “Materials required to be filed will be posted to the FWA website”

[4] Applications to vary the Fast Food Industry Award 2010 and Hair and Beauty Award 2010 in relation to penalty rates and public holidays have been assigned to me for the purposes of hearing the evidence and providing a report for consideration by the relevant Full Bench.

[5] On 29 August 2012, Interim Orders were issued by FWA limiting the access of the witness statements to the parties specified in [2](a) above.

Submissions

[6] The Ai Group states its application is in two parts. The orders directed to restrictions on publication on FWA website concern a procedural matter. The remaining orders specifically concern confidentiality within the meaning of s.594 of the Act.

[7] Ai Group submit that the Directions departed from the usual practice of FWA to hold documents on file, with the consequence that persons not party to the Review proceedings, including competitors and customers of the depondents have automatic access to material.

[8] The Ai Group states that the orders are not intended to restrict access to witness statements by parties with a legitimate interest.

[9] The gist of the Ai Group’s argument is in respect of the orders sough as to confidentiality contained in the following extract from their submissions:

“2.10 The Fast Food Industry is highly competitive and extremely price sensitive. This means that any possibility for another fast food operator to access the confidential and commercially sensitive data of the dependents allows the other operator to gain a commercial advantage. This includes by:

a) Restructuring cost structures or pricing to undercut the depondents’ prices through analysis of the depondents’ cost structures and profit margins;

b) Poaching trade secrets to offer a similar service or product, or to freely access the cost savings and other benefits (such as specialised products or standardised systems) in which the depondents have invested significant time and money.”

[10] The Ai Group proposed redaction of parts of the witness statements fall within four categories: personal information, sales information, direct and indirect financial information and trade secrets.

[11] The National Retail Association does not oppose the orders sought by the Ai Group.

[12] The ACTU opposes the granting of the Orders sought by the Ai Group. The ACTU submits that the practice specified in the Directions is consistent with past practice in relation to award modernisation and significant cases. Specifically, it submits that FWA should exercise its discretion under s.594 of the Act cautiously given the requirements under ss.577 and 601 of the Act.

[13] The ACTU is critical of the global nature of the Orders sought and submits that the Ai Group has not discharged its obligations to demonstrate how the adverse effect it claims would flow from publication of the witness statements.

[14] The ACTU’s preference, if FWA is minded to exercise its discretion under s.594 of the Act, is that information in particular witness statements be redacted and the witness statements then made available on FWA’s website in accordance with the Directions. The ACTU, however, opposes the redaction of specific parts of the witness statements the Ai Group seeks.

[15] The SDA generally supports the ACTU’s submissions. It, however, does not oppose the redaction of the addresses and signatures of each depondent.

Consideration

[16] S.577 of the Act provides:

577Performance of functions etc. by FWA

FWA must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).

[17] S.594 of the Act provides:

594 Confidential evidence

(1) FWA may make an order prohibiting or restricting the publication of the following in relation to a matter before FWA (whether or not FWA holds a hearing in relation to the matter) if FWA 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 FWA in relation to the matter;

(b) the names and addresses of persons making submissions to FWA in relation to the matter;

(c) matters contained in documents lodged with FWA or received in evidence by FWA in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to FWA for consideration in an annual wage review (see subsection 289(2)).

[18] I am satisfied that it is desirable to provide some limits to the access of persons to the witness statements filed by Ai Group.

[19] I note that as a consequence of the Interim Orders issued on 29 August 2012, witness statements are presently restricted to specified parties.

[20] There is some merit in the Ai Group’s argument that unrestricted access may result in outcomes that operate unfairly against those companies on whose behalf witness statements have been filed.

[21] I propose to retain orders [1], [2] and [3] of the Draft Orders with provisions for a party or person to apply for access to any or all of the witness statements and where such an application is made, a hearing can be convened to consider the application.

[22] In these circumstances, I am not satisfied that it would be desirable to redact witness statements ahead of an application by a person or party. In the absence of an application being made, the obligation on FWA to satisfy itself as to the desirability of maintaining confidentiality is an abstract exercise.

[23] I am not prepared to accede to a global application to have oral evidence given by depondents marked confidential ahead of the hearing at which evidence is to be given. The Ai Group is of course at liberty in the course of the hearing, when oral evidence is being given, to make an application under s.594 in respect of the particular evidence.

[24] I am satisfied that I should issue Orders which provide that the witness statements filed by the Ai Group listed in Annexure A (statements) are marked confidential, provided only to specified parties for the purpose of the Award Modernisation Review with provision for other parties or persons to apply to access the witness statements.

COMMISSIONER

Appearances:

Ms P Salewicz - Australian Industry Group

Ms E McCoy - Austalian Council of Trade Unions

Ms G Sharp - National Retail Association

Ms J Willey - Shop, Distributive and Allied Employees Association

Hearing details:

2012

Melbourne

September, 12

Printed by authority of the Commonwealth Government Printer

<Price code C, PR528955>