Confidentiality orders in the Fair Work Commission

“Subsection (1) of Section 594 of the Act provides:

“(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.”

[16] Section 594(1) is a discretionary power that allows the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission if satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.

[17] As Deputy President Gostencnik observed in Bowker and Ors v DP World Melbourne Limited t/a DP World and Ors 1 (“DP World”):

“Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under section 594(1) of the Act. However, these considerations are not to be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case.”

Wallace v Burswood Resort (Management) Limited [2019] FWC 6005 delivered 29 August 2019 per Cross DP