Worker A, Worker B, Worker C, Worker D and Worker E

[2016] FWC 5707

[2016] FWC 5707

FAIR WORK COMMISSION

DECISION

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

Worker A, Worker B, Worker C, Worker D and Worker E
(AB2016/208)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 AUGUST 2016

Application for an FWC order to stop bullying; confidentiality order.

[1] I conducted a hearing on 12 August 2016 to deal with an application by the applicants for certain confidentiality orders. The principal application, to which the application for orders relates, is an application under s.789FC of the Fair Work Act 2009.

[2] The applicants are all employees of Programmed Skilled Workforce Limited (Programmed). Programmed is involved in an industrial dispute with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union in connection with its acquisition of a contract to provide certain services at the Carlton & United Breweries site (Site) in Abbotsford, Victoria.

[3] The dispute centres on the terms and conditions of employment of persons employed by Programmed and the employment by it, of persons whose employment was terminated by the previous contractor on redundancy grounds.

[4] The conduct about which complaint is made in the principal application involves allegations about the conduct or behaviour of persons who are participating in a picket outside of and adjacent to the entrance to the Site.

[5] The applicants do not wish to be identified as applicants in the proceeding for reasons which include, concerns about an escalation in the conduct about which they complain directed towards them. I accept that the concerns are genuinely held and that the risk of escalating conduct is not merely theoretical. Whilst a named party to this proceeding might not escalate or repeat the conduct alleged (noting for present purposes that the conduct alleged is likely to be denied or is said to be conduct which is not “at work”), there is a risk in my view, of escalating conduct towards an applicant by persons at the picket who are not named in this proceeding, should the identity of the applicant be disclosed. In my view it matters not for the purposes of the making of the order that I propose to make that the risk of escalating conduct might not relate to conduct which is “at work”.

[6] I am persuaded that an order which protects the applicants’ anonymity in the sense that there should not be a disclosure of their respective name or address should be made. I will, in due course, provide further reasons for my decision to make the order.

[7] The orders that are sought by the applicants would, in my view, unduly restrict the capacity of the legal representatives of the other parties to this proceeding to properly prepare and prosecute their respective defences to the allegations that are made.

[8] I consider that the order that I make, strike an appropriate balance taking into account the concerns of the applicants’ and the interests of the other parties to this proceeding. Moreover, I consider that in the present case, the interests of justice must give way to the desirability to mitigate the risk of escalating inappropriate conduct directed towards the applicants.

[9] The applicants through their legal representatives are requested to advise my chambers by 5.00 pm on Wednesday, 17 August 2016 whether and without equivocation, in light of the order that I have made, they or any of them are prepared to participate in proceedings as applicants and to give evidence before the Commission.

[10] I will give consideration to whether an interim order relating to conduct should be made after the advice from the applicants is received.

[11] The order that I make are separately issued in PR584235.

DEPUTY PRESIDENT

Appearances:

Mr H Skene, Solicitor for the applicants.

Mr H Borenstein, Counsel for the CEPU and the AMWU.

Hearing details:

2016.

Melbourne:

August 12.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR584230>