The Geo Group Australia Pty Ltd v CPSU, the Community and Public Sector Union

[2012] FWA 8526

[2012] FWA 8526

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

The GEO Group Australia Pty Ltd
v
CPSU, the Community and Public Sector Union
(B2012/720)

DEPUTY PRESIDENT SMITH MELBOURNE, 4 OCTOBER 2012

Fulham Correctional Centre Enterprise Agreement 2012. Confidentiality of information.

[1] This is is an application made pursuant to s.593(3) by GEO Group Australia Pty Ltd (GEO) about the hearing of a matter arising under the Fulham Correctional Centre Enterprise Agreement 2012 (the Agreement) (AE895954). Clause 19 of the Agreement provides that the Tribunal will, if discussions fail, arbitrate a dispute in relation to staffing levels at the Fulham Correctional Centre.

[2] It is trite to state that the provision arises by agreement following conciliation.

[3] The GEO group argue that the materials which will be referred to in the proceedings are both commercially sensitive and could have security implications. The Community and Public Sector Union (CPSU) argue that an important aspect of the rule of law is that courts sit in public [K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501]. It referred to an observation of a Full Bench of the NSW Industrial Relations Commission in Court Session [Day v Smidmore (No2) (2005) 149 IR 80] where it too highlighted open justice and that mere embarrassment is not enough.

[4] The CPSU drew upon a speech by Lord Shaw: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guides against improbity. It keeps the judge himself while trying under trial.” [Scott v Scott (1913) AC 417 at 477].

[5] It was the submission of the CPSU that the staffing profiles of a private company engaged by the State of Victoria to provide correctional services was an issue of public importance and of importance to the people of Sale. In addition, the CPSU argue that it is important that it is able to communicate with its members so that proper instructions can be given to counsel. CPSU drew my attention to other arbitrations which have been conducted in public in relation to correctional facilities.

[6] Whilst it is no longer a requirement that disputes arising under agreements need to be held in private [see ss.702 and 707 of the Workplace Relations Act 1996] nevertheless these are still agreements between parties and if one of the parties raises an issue about the confidentiality of material it needs to be considered. Indeed the decision of the High Court in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and another) [(2001) 203 CLR 645] is often referred to as the Private Arbitration Case. The fact that it is an agreement is a factor that needs to be weighed in the mixture of considerations. However more importantly, in my view, are the reasons given for not wishing the material to be made public. The one that I find persuasive relates to the security of the information about staffing levels. In a correctional facility I can appreciate the sensitivity of this information and it would not work to have the slightest chance of any risk to employees of the facility.

[7] I will make the Order sought with some minor amendments to permit the employees representatives and the CPSU to communicate with employees at Fulham so that they may fully participate and be aware of in the process as it effects them and their work colleagues.

DEPUTY PRESIDENT

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