Don’t count on the Fair Work Commission to protect your reputation
Don’t count on the Fair Work Commission to protect your reputation – lessons from Hankin v Plumbers Supplies Co-Operative Ltd
The recent case of Hankin and Plumbers Supplies Co-Operative Ltd serves as a reminder that the Fair Work Commission won’t necessarily agree that proceedings should be confidential and, therefore, that your reputation will be protected by a confidentiality order, particularly where one party opposes any application to that effect.
There is a presumption under the Fair Work Act that hearings must be in public, except in certain limited circumstances where they may be conducted in private. Under the Act, the Commission may allow certain matters to remain confidential if it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.
Whilst this gives the Commission a wide discretion to make a confidentiality order, as Commissioner Lewin noted in the Hankin case, “mere embarrassment, distress or damage” is insufficient to displace “the presumption in favour of the open administration of justice”.
Accordingly, if you are faced with any type of Fair Work Commission hearing about matters with the potential to cause your business reputational damage, you should seek to gain the other side’s consent to an application for a confidentiality order and to satisfy the Commission of the need for matters to remain confidential.