AMMA’s director workplace relations and legal Amanda Mansini and consultant Karen Nelson review a recent Fair Work Commission decision which does little to protect the identity of employee bargaining representatives who may face union retribution.

Amanda Mansini

Amanda Mansini

Karen Nelson

Karen Nelson

Background

Yancoal Mining Services Pty Ltd made an application pursuant to s.185 of the Fair Work Act 2009 (“FW Act”) for the approval of a proposed enterprise agreement. The documents lodged by Yancoal Mining Services in the application contained the names, home addresses, personal email addresses and telephone numbers of three employee bargaining representatives involved in the making of the proposed agreement.

The CFMEU sought leave under s.590 of the FW Act to be heard in relation to the approval of the proposed agreement, and was provided with the documents filed by Yancoal Mining Services in relation to the proposed agreement. Yancoal Mining Services Pty Ltd then made an application pursuant to s.593 and s.594 of the FW Act to restrict the disclosure of the personal information of the three employee bargaining representatives.

Deputy President Dean issued a decision that the home address, email address and telephone number of each bargaining representative was to be kept confidential, however their names were to remain available and in the public domain. In issuing the decision, Dean DP said that there was a “need to balance the considerations of open justice and matters of fairness”, and noted that there would be no public interest served by publishing the personal contact details of the employees, as they could be contacted via their employer if necessary.

Click here to view the decision.

Implications for employers

This decision is concerning as it does little to protect the identities of employee bargaining representatives who may legitimately fear retribution from their union. There is a genuine need to keep the identity of employees confidential where employees are union members but choose not to involve the union in bargaining, and would rather work directly with their employer to obtain a mutually beneficial enterprise agreement.

As clearly demonstrated by this decision, obtaining orders from the FWC to protect the confidentiality of employee bargaining representatives is not a simple process. Applications of this nature must be managed strategically, and employers should seek expert advice prior to lodging documents for approval of enterprise agreements and making requests for confidentiality orders.

AMMA has recently worked with employers on a range of strategies to protect individual employee confidentiality in similar circumstances, including successfully obtaining confidentiality orders to supress the identity of employees in multiple FWC decisions. The approaches taken by AMMA have recently been upheld by Hatcher VP in an uncontested environment.

AMMA’s experienced consultants can provide assistance with enterprise agreement approvals and obtaining confidentiality orders to mitigate adverse impacts on your employees. To learn more, contact an AMMA consultant near you.