By Clayton Payne, Special Counsel
Can a party to proceedings in the Fair Work Commission seek to have confidentiality maintained over sensitive documents, even if the document is not otherwise subject to legal professional privilege?
The Fair Work Commission recently considered this issue in Bowker and Others v. DP World.
In this matter, Deputy President Gostencnik made orders restricting the publication of certain documents sought by the employer, which were attached as an annexure to a witness statement.
The applicants to the proceedings (which included the Maritime Union of Australia) claimed that a need for confidentiality had not been made out and that the use and disclosure of the documents was adequately protected by implied protections to which they and their legal representatives were subject.
Section 594(1) of the Fair Work Act gives the Commission power to make an order prohibiting or restricting the publication of certain things in relation to matters, if it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.
The employer submitted that the documents and the information within them related to particular allegations about workplace conduct which was raised by certain employees on a confidential basis. In addition, it argued that the identity of the employees who participated in the investigation was not relevant to whether the general relief sought by the Applicants (which related to bullying complaints) should be granted. Concern was also expressed that given the number of Applicants in the proceedings, if all were given access, there was a genuine risk that the relevant information could be disseminated throughout the employer’s workforce.
In restricting publication of the relevant documents, the Deputy President went on to find:
“Given that certain employees provided information to (the employer) pursuant to an assurance of confidentiality, I accept that there is a real risk of undermining the confidence that those employees have in the workplace behaviour policy if the employees’ identities, or the information that they provided to (the employer) during the investigation is disclosed, particularly in the workplace”.
On occasion, complaints from workers to employers need to be acted upon, even where the employee requests complete confidentiality and requests that the matter not be taken any further. This may occur as a result of workplace health and safety or other risks present in the workplace upon which the employer is compelled to act.
In most cases however, some degree of confidentiality is still required to ensure that workers provide full and frank evidence, to ensure harmony in the workplace, and to avoid the prospect of retribution by a disgruntled co-worker.
The above decision highlights the need for employers engaging in investigations, and receiving evidence as part of a grievance process, for example, to seek to ensure that the information of witnesses and complainants will be kept confidential where possible. It also highlights the importance of having sound and robust policies and procedures in place.
In this case, the Commission found that to allow the general release of the various documents would undermine the confidence of the workforce in the employer’s workplace behaviour policy.
Aside from relying on Section 594 of Fair Work Act, if the statement and attached documents formed part of an investigation report prepared by an employer’s legal representatives, then additional arguments could likely be raised by the employer denying parties access on the basis of legal professional privilege.
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