United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board

[2017] FWC 1708

[2017] FWC 1708 [Note: An appeal pursuant to s.604 (C2017/1653) was lodged against this decision - refer to Full Bench decision dated 16 May 2017 [[2017] FWCFB 2500] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2016/6286)

COMMISSIONER WILSON MELBOURNE, 27 MARCH 2017

Alleged dispute involving compliance with policies, procedures and practices in the investigation of conduct allegations. Whether hearing and evidence should be confidential.

[1] In the course of a hearing on Monday, 27 March 2017 I decided to refuse an application to make an ongoing confidentiality order in relation to this matter, and to revoke an initial, time-limited order. Discussion with Counsel after I had indicated my decision led to the parties agreeing that I should make a variation to the existing order to provide that it continue for a further 24 hours in order that the Applicant may consider my decision. I advised the parties that my reasons for decision would be provided to them at the earliest opportunity. These are my reasons.

[2] The application before me as made by the United Firefighters’ Union (UFU) under s.739 of the Fair Work Act 2009 (the Act) involves an endeavour by the Metropolitan Fire and Emergency Services Board (the MFB) to investigate the conduct of a particular firefighting employee, with a view to consideration of disciplinary action against him.

[3] Two broad questions have been put to the Commission for determination in this matter. Those questions are;

“(1) By its conduct, in dealing with the allegations against Employee A, the Metropolitan Fire and Emergency Services Board (the MFB) failed to comply with its policies, procedures and practices by:

(a) failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to informally counsel Employee A under its Operations Work Instruction, Counselling Procedures; and/or

(b) failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to formally counsel Employee A under its Operations Work Instruction, Counselling Procedures; and/or

(c) suspending Employee A prior to the laying of any charges, contrary to its Disciplinary Investigation Guidelines.

(2) Alternatively, if by its conduct, in dealing with the allegations against Employee A, the MFB intended to change or amend its policies and procedures, it did so without engaging in any consultative process.”

[4] This matter was first dealt with by me in November and December 2016 by way of conciliation. When that was unsuccessful the Applicant, the UFU, sought arbitration of the alleged dispute. A directions hearing on the matter was held by me on 25 January 2016. Broadly, two sets of directions were made in the course of that hearing. The first was a set of directions for the filing of material by each party, comprising outlines of submission and witness statements and the setting of dates for the hearing of the matter. The second significant direction was an order made by me establishing confidentiality over the file and its contents, at least until 27 March 2017, the first date for hearing. While I was generally aware of the allegations against the employee at the time the order was made, having had some part of those matters discussed in the conciliation conferences I conducted, I did not have the benefit of having previously seen the full suite of materials now before the Commission.

[5] While resisted by the Respondent, the MFB, the confidentiality orders were made by me so as to allow the parties to file the submissions and witness statements on which they sought to rely and for me to then review what had been filed, so as to determine whether the material warranted an ongoing confidentiality order.

[6] The order made by me on 30 January 2017 is in the following terms;

“[1] Pursuant to ss.593 and 594 of the Fair Work Act 2009 (the Act) I am satisfied that it is desirable to make an order for confidentiality in relation to the conduct of matter C2016/6286. I order as follows:

1. The identity of the parties and witness, all evidence, material, transcript of proceedings and any decision in relation to this matter are confidential.

2. The evidence, material, transcript of proceedings and decision in relation to this matter shall not be published.

3. No person, other than the parties to the proceedings and their representatives, shall be permitted access to the file of the proceedings except on direction issued by a Member of the Fair Work Commission.

[2] This Order shall apply until 5 PM on Monday, 27 March 2017, unless further extended.”

[7] Since making that order, both parties have filed their material in accordance with the Commission’s directions.

[8] In the case of the UFU, those materials consist of an outline of submissions on the merits of the case; four witness statements; a reply witness statement; and a further outline of submission and witness statement dealing with the Commission’s intimation that the confidentiality order may be appropriate to be lifted. The material filed by the Applicant does not include a witness statement from the employee who is the subject of the MFB allegations. Within the UFU material there is no admission of the conduct the MFB seeks to investigate, but then again there is no denial.

[9] The MFB has now also filed its material, which consists of an outline of submission on the merits the matter; one witness statement; and an outline of submission on the subject of revocation of the confidentiality order.

[10] The powers of the Commission to conduct hearings in private or to make orders about the confidentiality of evidence are contained in s.593 and s.594 of the Act, which are in the following terms;

593 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).

Confidential evidence in hearings

(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)).

594 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.

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

[11] The presumption in s.593(2) of the Act is that if the Commission holds a hearing, it must be in public, subject to certain limited circumstances where it may be conducted in private, and a decision to grant confidentiality orders will have a varying effect on the principle of open justice as it applies to the Commission. 1 Even though the Commission is given broad powers by the legislature, and the open justice principle assists in ensuring those powers are not exercised in a “cloistered process”, the powers within ss.593(3) or 594(1) are “not intended to lie dormant” and are there to be exercised “albeit infrequently and with caution”.2

[12] The general approach of the Commission to conduct hearings in private or to make orders about the confidentiality of evidence was set out by Commissioner Bissett in the matter of Re: Justin Corfield; 3

“[20] The presumption in s.593 is that a hearing will be conducted in public. This accords with the ‘open justice’ principle. However, the Act does recognise that there are circumstances when a hearing or part of a hearing may be conducted in private.

[21] The principle of open justice applies to the Commission just as much to the Courts. Section 593 above is testament to this. There are, as has been identified above, some legislative exceptions where they are some limitations. These exceptions, however, should not be seen to distract from the application of the principal in general.

[22] The application of the open justice (or open court) principal was considered by Munro J in Moncreiff Fabrications Labour Services Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 4 where he noted:

In a recent publication, The Australian Judiciary, Professors Enid Campbell and H.P. Lee, the joint authors of the publication, devoted a chapter to the accountability of Judges and the function of the concept of open hearings. They note that the general rule of common law is that proceedings in a Court of justice must be conducted in open Court. It is claimed that such a rule, described as “inveterate” and “immutable”, has existed in England “for some centuries”.

Of course, and without quoting from the authors, the processes of this Commission are not judicial processes. It is equally clear that the processes are quasi judicial. The Commission’s function has long been associated with the recognition that our process is akin to a judicial process. The authors note that McHugh J has referred to the implication of open justice as an essential feature of the Federal judicial power. According to Gaudron J, open and public inquiry is an aspect of the judicial process. Such procedures have long been an aspect of the Commission’s processes. I have not researched its statutory provenance but I assume it is at least a legacy of the Commission’s antecedent, the Court of Conciliation and Arbitration.

At page 220 of the publication to which I have referred the authors continue, and this I quote:

“The justification for a relatively strict adherence to the general rule of public hearings has usually been based on one of two broad and related principles. In the first place, it is asserted that the exposure of the judicial system to publicity produces certain beneficial effects in the operation of the system. The dual nature of this beneficial (also described as `cathartic’) effect was identified by Bentham: `[P]ublicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.’ We believe that the spur to exertion refers to the tendency of publicity to ensure the maintenance of standards of formality, the conscientious performance of duties, and a certain decorum of procedure. As Lord Widgery stated:

The great virtue of having the public in our courts is that discipline which the presence of the public imposes on the court itself. ... [E]verybody is more careful about what they do, everybody tries just that little bit harder.

Publicity constitutes a `guard against improbity’, in that exposure to public scrutiny and criticism is said to create an environment in which abuses are less able to flourish undetected. The proposition was stated by Lord Diplock thus: `If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy.’” 5

[23] In that matter his Honour was considering the hearing of a matter ‘in chambers’. Despite this different context, his observations remain apposite to the matter before me.

[24] In Day v Smidmore and others (No 2) 6 (Smidmore)the New South Wales Industrial Relations Commission in Court session was considering an application to suppress the names of certain witnesses in a decision already issued. In deciding the matter the Court observed:

31 The test we are obliged to apply provides that the Court may exercise its discretion to make any non-disclosure order if we are satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. The application of that test must be approached on the basis that the legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test.

[25] The Court then said:

32 …we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings “publicly and in open view”: Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]):

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

33 As Kirby P observed in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142-143:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

[26] On the question of balancing considerations in deciding the grant of suppression orders the Court said:

36 The decision whether to make non-disclosure orders involves a very fine and difficult balance between a number of competing factors. Factors telling against the exercise of the power to make the orders include, as we have observed, the paramount consideration of open justice and that embarrassment, distress or damage by publicity will not, of themselves, provide a sufficient basis for making such orders.

...

41 The factors in favour of granting the respondents’ application include the very wide power granted to the Court to do so under s 164A(2). Secondly, there was the approach of the appellant to the application, who indicated no opposition and that it was a matter for the Court, subject to the protection of his costs. Next, there is the unchallenged evidence... regarding the distress felt by certain persons at seeing their names in the judgment linked to unsavoury allegations of a professional and personal nature and the effect that might have on careers and the respondents’ business. This is a particularly difficult consideration given our view that mere distress does not warrant a non-disclosure order.

[27] In that matter the Court was considering its powers to make suppression orders under the Industrial Relations Act 1996 (NSW) which provides:

164A Powers of Commission as to the disclosure of matters before the Commission
(1) A non-disclosure order is any of the following orders:
(a) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission)...

(2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason...
[emphasis added]

[28] The language of the provisions being considered by the Court is not substantively different to s.593(3) of the Act. For this reason I find the reasoning of the Court persuasive although I do note that in that matter the application was not contested.

[29] It is clear that there are a number of different types of orders that can be made by the Commission pursuant to s.593 of the Act. Each of these will have a varying degree of effect on the open justice principle as it applies to the Commission. These include an order prohibiting who may be present during a hearing (so that a matter might essentially be heard in private) to orders that restrict the names of parties or witnesses in a matter (as is sought in this application). To this extent the application of the Respondents are within jurisdiction of the Commission. An order to de-identify parties to a matter is considered the least adverse to the maintenance of open justice.

[30] In deciding whether or not to grant the application of the Respondents it is necessary that I balance the open justice principle against the effects of identification on the on-going employment relationship that between the Applicant and the Respondent employer and any embarrassment or distress felt by the Respondents in being identified.” 7

[13] The principle of open justice and its application to matters dealt with by the Commission was discussed by Vice President Hatcher in the matter of Amie Mac v Bank of Queensland Limited & Ors; 8

“[6] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) 9 as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”

[7] The above passage describes the open justice principle in relation to courts, but I consider that the passage is equally applicable to a tribunal such as this Commission which conducts its processes in a quasi-judicial fashion.

[8] As identified in the passage quoted, departures from the principle of open justice may be permitted where not to do so would defeat the proper administration of justice. For example, in criminal proceedings involving an allegation of blackmail, identifying details of the target of the alleged blackmail will often be suppressed in order that the system of justice does not serve to aid the blackmailer. Genuine trade secrets and commercially confidential information may be the subject of orders restricting publication and disclosure where their exposure in the course of litigation may result in a litigant suffering the injustice of detriment at the hands of a competitor.”

[14] It has also been said by the Commission, in regard to the application of these principles, that the question of whether to make a confidentiality order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side; per Bowker & Ors v DP World & Maritime Union of Australia, Victorian Branch[2015] FWC 4542, [20]. Other considerations pertinent to the principle of open justice include the proposition that despite embarrassing and damaging facts, generally individual interests must be sacrificed to the greater interest of adhering to an open system of justice, and that, in relation to an applicant for unfair dismissal who sought, sometime after the event, to anonymise a tribunal’s published findings in relation to his application, that;

“The applicant is to be taken to have known, or to be a person who should have known, that a possible outcome of his initiation of the proceedings was that findings would be made as to contested factual matters, which might be adverse to one or both of the parties, and that they would be published and available to the public. An unsuccessful applicant is usually likely to suffer some degree of damage in such circumstances, but it is a hardship which must generally be accepted as a necessary incident of the open administration of justice.” 10

[15] In this matter, the requirement for the continuation of the confidentiality order is put forward by the UFU for several reasons; that the dispute is about the MFB’s process for investigation of allegations against the employee; that the investigation is incomplete and unfinished; that while there will be prejudice to the employee concerned with an open hearing, there will be none to the MFB if the matter is dealt with confidentially; that there is no forensic purpose relevant to the investigation for there to be a public proceeding; that the relevant industrial and political environment, as well as the allegations themselves, will lead to the matter attracting significant media attention; and that there will be irreparable damage to the investigative process, the reputation and circumstances of the firefighter concerned as well as the MFB. 11 Further to these arguments, the UFU contend that;

“This is not a case, where the person accused in respect of the allegations brings the proceeding, and therefore accepts the risk associated with the litigation. In this proceeding the Applicant, the United Firefighters Union, brings the application to protect not only the person accursed of the allegations but all of its members to safeguard and ensure that the proper processes and guidelines are complied with by the MFB.” 12

[16] While advancing the submission there will be prejudice to the employee concerned if there is no ongoing confidentiality order, the UFU does not claim there would be prejudice to it.

[17] The allegations that have been put to the employee concerned and which are desired by the MFB to be investigated are set out in several correspondences to him from the MFB. The allegations relate to Facebook posts alleged to have been made by the employee between at least December 2015 and August 2016. Some of the allegations relate to posts on the employee’s personal Facebook page, with others related to posts on the Facebook pages of the MFB and the CFA and a member of the Victorian Parliament. Some of the allegations are particularised as having been posts that are able to be viewed by the public; some as posts that were contrary to certain legislation applicable to the MFB and the Code of Conduct for Public Sector Employees; with other allegations put forward as posts containing allegedly derogatory language or language that may be considered threatening and derogatory. Some of the allegations pertain to posts made after the first tranche of allegations were made by the MFB to the employee concerned and apparently taking issue not only with the MFB’s investigation process, but seeking to find out and challenge those who may have reported him to the MFB.

[18] The matter before me is not whether these allegations are made out or not, but rather, as referred to above, whether the MFB has complied with its policies, procedures and practices in relation to its investigation of the allegations. Such a situation, in which untested allegations may be publicly aired in the instant proceedings, is not unusual for Commission decisions dealing with applications for confidentiality orders. 13

[19] There is no question that the public conduct of these matters will be embarrassing to the employee concerned, but that is not unique to the circumstances of this matter, or, as was said by another Commission member, “to any other of the 37,000 applications made to the Commission each year”. 14 I take into account that the UFU does not make any admissions on behalf of its member about his conduct, or that the posts are his; however, I also take into account that it does not deny them either. Language within the alleged posts is strident and repeated and, at times, employing language that, if it was directed publicly, would not ordinarily be associated with a person paid by state funds – a public servant in the broadest sense. While this is so, I am yet to make any findings about the extent to which a link can be drawn between the posts and the employee’s employment as a firefighter, if he was the author.

[20] The mere existence of embarrassment to a person involved in Fair Work Commission proceedings, however obliquely, is not sufficient for an order to be made for ongoing confidentiality. 15

[21] The UFU endeavours to suggest that the employee concerned has not accepted the risk associated with these proceedings since he has not brought them, and rather the UFU has done so in his stead with the intention of safeguarding all of its members. I do not accept the proposition in the absence of evidence before me that the employee did not want these proceedings to be brought. The employee’s union brought this action, with the assistance of significant legal representation, including Counsel, in these proceedings, and I presume the union and its lawyers not only informed him of the commencement of these proceedings but its attendant risks. Even the union’s own material to the Commission brings within the scope of these proceedings the allegations against the employee concerned and the material upon which they are based.

[22] This is therefore not a matter where all efforts are being made by the Applicant to keep their member from involvement in the matter and for the factual base that has led to the dispute presently before the Commission to be kept away from the proceedings.

[23] It is also the case that there is no evidence before me that an open hearing of the matter will damage the investigation process or lead to pressure on the MFB to take a harder line with any sanction it may consider; nor is it a case where restriction of the public availability of information will secure the proper administration of justice (or, in this case, the proper administration of the MFB’s investigation and disciplinary process). Like an earlier decision of the Commission, I take the view that scrutiny of a disciplinary system, should the system be robust, may lead to greater confidence in it. 16

[24] I am also unpersuaded there will be any irreparable damage to the employee under investigation, noting there is no direct evidence before me of the damage he would likely suffer. In any event, proper and detailed examination of the allegations against him may well lead to his exoneration. Claims of prejudice to individuals in an application for anti-bullying orders from untested allegations being aired publicly have been assessed by the Commission as being of a kind that is common to many applications before the Commission and disregarded as a reason to make confidentiality orders, “albeit that the risk of publication of the allegations is likely to be greater given the profile and standing” of the union involved in the allegations. 17

[25] This matter relates to how a major Victorian Government authority, the subject of significant public controversy, investigates allegations that a publicly employed person made allegedly offensive commentary on multiple occasions in posts on Facebook, and continued to do so even after allegations of misconduct had been made against him. This matter does not concern the private interactions of employees in a private company, but allegations of misconduct by a publicly employed person towards other citizens about matters of public and political controversy. While internal investigation processes may be a means by which an employee, such as the one involved in this matter, can avoid the glare of public scrutiny, the decision to bring the dispute over the investigation to this Commission brings with it the attendant expectation that the Applicant and its member submit to the principle of open justice.

[26] There is a strong public interest to this matter being heard and dealt with publicly and from the start of the hearing that is about to commence. Having considered all aspects of the request for continuation of the confidentiality order, I am satisfied that the interests of open justice fall on the side of not making an ongoing confidentiality order and revoking the one already in place.

[27] As a result I have decided not to issue an ongoing confidentiality order in order for the whole of these proceedings to be dealt with in public.

[28] In relation to revocation of the existing order, at the request of the UFU, and with the consent of the MFB, the order made on 30 January 2017 will be varied by the Commission to provide that it not expire until 24 hours after the time of publication of this decision. The UFU has been directed by me to file and serve a consent variation dealing with this eventuality. Once that document is filed, I will make an amendment to the order consistent with the parties’ agreement.

COMMISSIONER

 1   Application by Hankin [2014] FWC 8402 [22].

 2   Matter of Worker A and Ors [2016] FWC 6524 [19]–[21].

 3   [2014] FWC 4887.

 4   PR925178.

 5   Ibid [19]–[21].

 6 (2005) 149 IR 80; 2005 NSWIRComm 406.

 7   [2014] FWC 4887 [20]-[30].

 8   [2015] FWC 774.

 9 [2011] NSWSC 385.

 10   Samakovlis v Chief Executive, Department of the Premier and Cabinet (Department for Correctional Services) [2016] SAIRComm 6, [15].

 11   Submissions of the Applicant on Confidentiality Order [19].

 12 Ibid [18].

 13   see for example Bowker & Ors v DP World Melbourne Limited[2014] FWC 7381 [3], [7].

 14   Application by Hankin [2014] FWC 8402 [24].

 15   See Re Justin Corfield[2014] FWC 4887 [32]; Day v Smidmore and others (No 2) (2005) 149 IR 80; [2005] NSWIRComm 406 [32].

 16   See Re Justin Corfield[2014] FWC 4887 [32].

 17   Bowker & Ors v DP World Melbourne Limited[2014] FWC 7381 [12].

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