Variation on the Commission’s own initiative — Clerks—Private Sector Award 2020
[2025] FWCFB 157
•25 JULY 2025
| [2025] FWCFB 157 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Variation on the Commission’s own initiative — Clerks—Private Sector
Award 2020
(AM2024/34)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 25 JULY 2025 |
Proposed variation on the Commission’s own initiative – working from home – Clerks—Private Sector Award 2020 – apparent leak of confidential proposal to media – cessation of conciliation.
This proceeding is concerned with the development of a working from home (WFH) term in the Clerks—Private Sector Award 2020 which facilitates employers and employees making workable arrangements for working at home and removes any existing award impediments to such arrangements. It has been foreshadowed that the term may serve as a model for incorporation in other modern awards, with or without adaptation.
On 21 March 2025, the parties participating in this proceeding, including the Australian Services Union (ASU) and the Australian Industry Group (Ai Group), jointly requested that the Commission arrange a conference to discuss the substantive issues that will arise in the matter. In a Statement issued on 26 March 2025,[1] we acceded to this request, and ‘[o]n the basis that the parties may be in a position to revise and adjust their respective positions as a result of this conference’, we were persuaded to vacate a direction previously made requiring the parties to file their respective cases.
Pursuant to this Statement, Commissioner McKinnon subsequently conducted conferences on 11 April 2025 and 15 May 2025. At the first conference, Commissioner McKinnon asked parties to prepare and exchange proposals for a WFH term on a confidential basis to facilitate further discussion. Pursuant to this request, the Ai Group sent its proposal to the other parties on 14 May 2025. The proposal was marked ‘Strictly confidential and without prejudice – not for wider distribution’. At the second conference, the Commissioner proposed that the parties confidentially exchange information explaining the rationale for their respective proposals. Consequently, on or about 26 May 2025, the Ai Group sent the other parties a further confidential document explaining its position. The confidentiality of the process of exchanging proposals and information was acknowledged by the parties at the directions hearing held on 6 June 2025.[2]
On 17 July 2025, the Ai Group wrote to the chambers of Commissioner McKinnon drawing attention to an apparent leak to the media of the contents of its confidential communications with the other parties. The Ai Group’s correspondence also referred to a subsequent media statement made by the ASU which, it says, ‘disclosed, albeit inaccurately, the content of without prejudice and strictly confidential exchanges between the parties’ and led to a story being published in The Australian newspaper on the subject. The Ai Group advised the Commission of its unwillingness to engage in any further confidential discussions involving the ASU in relation to the matter.
Later on 17 July 2025, the ASU responded to the correspondence from the Ai Group. It rejected any allegation of impropriety against the ASU or its officials and stated that its media statement referred only to material that was ‘in the public domain at the time it was published’. We note of course that the contents of the Ai Group’s communications were only ‘in the public domain’ because, apparently, a party in receipt of them had leaked them to the media. No other party has responded to the Ai Group’s correspondence.
The leak of the Ai Group’s confidential communications to the media is a highly regrettable development. Parties who agree to participate in confidential discussions in the Commission are entitled to expect that the confidentiality of the process will be maintained by other parties. A breach of that confidence by a party constitutes, we consider, unethical and dishonourable conduct which undermines the integrity of the Commission’s processes and impedes its capacity to resolve disputes efficiently and fairly. What has occurred in this matter is all the more disappointing because the participants in the conference process are all major, experienced and sophisticated industrial parties.
We wish to make clear the Commission’s expectation that all parties who participate in Commission proceedings of a confidential nature, and in any confidential discussions arising out of those proceedings, must respect the confidentiality of the process.
As a result of what has occurred, the Commission does not intend to facilitate any further conciliation in respect of this matter.
PRESIDENT
[1] [2025] FWCFB 63.
[2] Transcript, 6 June 2025 PNs 29, 33.
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