Welcome to the AREEA Member Portal

Login

Register

Is your company a member of AREEA?  Register now to access the Member Portal

Welcome to the AREEA Member Portal

News, information and resources in one location for your access to ongoing support.

From fact sheets, guides and reference libraries to breaking news, the portal is your comprehensive and exclusive reference tool.

Confidentiality decision does little to protect employees’ identity

AREEA’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.

AREEA 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 AREEA have recently been upheld by Hatcher VP in an uncontested environment.

AREEA’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 AREEA consultant near you.

Create your AREEA Member login

Register