14 June, 2018
What you need to know
Certain Fair Work Commission files may be open to the public, based on the principle of open justice, unless there are special circumstances or confidentiality orders have been made restricting access.
The FWC has a Privacy Policy that limits access to inspect certain types of files, such as unfair dismissal, general protections and bullying files.
What you need to do
Keep in mind that any material put before the FWC may be provided to non-parties – do not assume the file will not be accessed.
Where appropriate, seek confidentiality orders or undertakings as early as possible, including when documents are lodged.
The FWC's Privacy Policy
The FWC has a Privacy Policy that sets out guidance on its approach. The Privacy Policy provides that:
- access to current files is at the discretion of the FWC
- closed files are generally accessible to parties and the public; and
- there are exceptions for unfair dismissal, unlawful termination, general protection, and bullying files, and other files concerning individuals.
Collective disputes, bargaining, agreement approval and similar matters are subject to the general principle and approach.
An application to the FWC to access a file would be dealt with in accordance with case law, as confirmed by a decision last year, and could be ordered by a member of the FWC.
Getting a confidentiality order
The Supreme Court of New South Wales has recently held that materials and information held by the FWC must be truly confidential in order to warrant an order that the material be extracted from an FWC application and returned to a former employer.
This is consistent with a decision of the Full Bench of the FWC, that held that FWC files are open to the public, in the absence of special circumstances or an order (such as a confidentiality order) to the contrary.
Non-parties such as unions or other employees not involved in a dispute, may wish to access materials held on an FWC file for their own purposes.
Employers should be aware that materials held on FWC files may be accessed by non-parties unless:
- they are covered by the FWC's Privacy Policy
- the materials are part of the FWC's exercise of its "conciliation" or "mediation" functions. Such conferences are usually conducted confidentially, unless the FWC member conducting the conference directs otherwise
- disclosure of the materials would constitute a breach of privacy (about an individual's personal information); or
- there is a confidentiality order in place.
Deciding what materials to put before the FWC
When deciding whether non-parties can access materials on a file, the FWC will generally be guided by the principles of open justice.
With this in mind, when deciding what materials to lodge with the FWC, employers should:
- carefully consider materials and information to include – do not assume that it will not be accessible
- consider how to respond if a media outlet, union or other external party (not involved in the proceedings) obtained a copy of the material
- determine the volume and level of detail of material that should be lodged, particularly in the earlier stages of proceedings before filing evidence
- decide whether, strategically, the information should be only tabled in a confidential conciliation conference or lodged at a later stage in the proceedings (if possible); and
- if the documents are truly confidential, seek confidentiality orders or undertakings at the time documents are lodged, or otherwise as early as possible.
The FWC generally applies the same test as the courts when making confidentiality orders – that is, materials must be truly confidential and an order must be "necessary" to prevent prejudice to the proper administration of justice.
Materials that are read in "open court" or tendered into evidence during a hearing will usually be accessible unless a confidentiality order is made about this evidence.
The FWC will be more likely to make confidentiality orders if:
- the materials contain personal information
- the information is commercially sensitive and deals with a trade secret or if revealed would give advantage to an employer's competitors; or
- disclosure of the materials would likely lead to serious harm to the employer.
