Alina Hinton-Tooley v Fiona Glumac [2026] FWC 1353

1 Fair Work Act 2009 s.604 - Appeal of decisions Alina Hinton-Tooley v Fiona Glumac (C2026/4595) VICE PRESIDENT GIBIAN SYDNEY, 17 APRIL 2026 Appeal against decision [2026] FWC 1055 of Commissioner Redford at Melbourne on 7 April 2026 in matter number C2026/2729 – Application for stay pending appeal – Treated as application for interim non-publication order – Application dismissed. Introduction [1] Alina Hinton-Tooley has filed a notice of appeal in which she seeks permission to appeal, and to appeal, a decision of a Commissioner of the Fair Work Commission under s 604(1) of the Fair Work Act 2009 (Cth) (the FW Act). The notice of appeal seeks a stay of the decision of the Commissioner. This decision deals with the stay application. For reasons which will become clear, it is more appropriate to treat the application for a stay pending appeal as an application for an interim non-publication order with respect to the name of Ms Hinton-Tooley to the extent it is used in the decision. [2] The decision of the Commissioner which is subject of the appeal arose from an application for stop bullying orders made by Fiona Glumac under s 789FC of the FW Act. Ms Glumac is a director and employee of The Herd Independent Learning Centre Pty Ltd which, among other things, operates an early learning centre. The application named Ms Hinton- Tooley as a customer of The Herd and made allegations against her of workplace bullying. In a decision published on 20 February 2026, the Commissioner dismissed Ms Glumac’s application on grounds that it did not have reasonable prospects of success for the purposes of s 587(1)(c) of the FW Act: Application by Fiona Glumac [2026] FWC 225. The application was determined without a hearing. [3] On 25 February 2026, Ms Hinton-Tooley filed an application seeking an order for costs under s 611 of the FW Act. In addition, on 26 February 2026, Ms Hinton-Tooley made an application (purportedly pursuant to s 593 of the FW Act) for an ‘anonymisation/non- publication order’ to the effect that, in any published decision relating to her costs application, her name not be published. The Commissioner issued a decision in relation to those two applications on 7 April 2026: Alina Tooley v Fiona Glumac [2026] FWC 1055. The Commissioner declined to make a non-publication order and dismissed Ms Hinton-Tooley’s [2026] FWC 1353 DECISION -- 1 of 6 -- [2026] FWC 1353 2 application for an order with respect to costs. This application was also determined without a hearing being conducted. [4] Ms Hinton-Tooley seeks permission to appeal, and to appeal, with respect to the decision issued on 7 April 2026 both in respect of the decision in relation to costs and the refusal of the Commissioner to make a non-publication order. The notice of appeal indicates that Ms Hinton-Tooley seeks a stay pending appeal under s 606(1) of the FW Act. The stay sought is described as a ‘[s]tay of publication of the Appellant’s name pending appeal’. No stay is sought with respect to the decision with respect to costs. In circumstances in which the Commissioner dismissed the application for costs, there is, in any event, no decision having ongoing or future operation capable of being stayed. [5] The application for a stay of the decision of the Commissioner to refuse to make a non- publication order is also not properly to be described as a stay. Again, the Commissioner simply declined to make a non-publication order. There is, in that sense, no order having ongoing or future operation capable of being stayed under s 606(1) of the FW Act. I am willing, however, to treat the application for a stay as an application for an interim non-publication order pending determination of Ms Hinton-Tooley’s appeal. What Ms Hinton-Tooley seeks, in substance, is that the publication of her name in the decision of 7 April 2026 be restrained pending her appeal against the refusal of the Commissioner to make a non-publication order. [6] There is no reason to doubt that the Commission could, in an appropriate case, make a confidentiality or non-publication order under either ss 593(3) or 594(1) of the FW Act pending determination of an appeal from a decision of a member of the Commission declining to make such an order. Section 593(3) permits confidentiality orders to be made with respect to a hearing held by the Commission in the following terms: (3) The FWC may make the following orders in relation to a hearing that the FWC holds 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) orders that all or part of the hearing is to be held in private; (b) orders about who may be present at the hearing; (c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing; (d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following: (i) evidence given in the hearing; (ii) matters contained in documents before the FWC in relation to the hearing. [7] Section 594 allows the Commission to make orders prohibiting or restricting the publication of various types of information or documents in relation to a matter before the Commission in the following terms: Confidential evidence (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; -- 2 of 6 -- [2026] FWC 1353 3 (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. (2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)). [8] Most relevantly for present purposes, s 594(1)(d) provides that the Commission can make an order prohibiting or restricting the publication of the whole or any part of its decisions or reasons in relation to a matter. [9] Although I am not aware of instances in which this has been done, I consider it is open to the Commission to make an interim order under s 594(1)(d) prohibiting or restricting publication of the Commissioner’s decision of 7 April 2026 to the extent it refers to Ms Hinton- Tooley by name pending hearing and determination of the appeal. It may be appropriate to make an interim non-publication order in circumstances in which disclosure of the information or documents subject of the appeal in the interim would render the appeal nugatory or otherwise cause harm sought to be avoided by the appeal. The utility of an appeal which seeks to maintain the confidentiality of certain information or documents may be undermined or destroyed if the information is disclosed pending determination of the appeal. [10] Where application is made for such an order, it is appropriate to consider the application based on the usual principles applicable to a stay application, or an application for an interim or interlocutory order aimed at preserving the status quo pending determination of a proceeding. That is, the Commission should consider whether a sufficiently arguable case is demonstrated with respect to the question of permission to appeal, and the appeal, so as to justify an interim order being made and whether the balance of convenience favours the making of an interim non-publication order. Consideration [11] Having considered the information available to me, I am not satisfied that it is desirable to make an interim non-publication order in relation to Ms Hinton-Tooley’s name pending hearing and determination of the appeal. [12] First, on the material presently available to me, I do not believe that Ms Hinton-Tooley has demonstrated that she has a sufficiently arguable case in relation to the question of permission to appeal or to demonstrate error in the decision of the Commissioner so as to justify an interim non-publication order being made. The decision of the Commissioner to refuse to make a non-publication order involved a procedural decision of a discretionary nature. The Commission has repeatedly said that appeals with respect to decisions of that type are to be deprecated and such a decision will only rarely be the subject of a grant of permission to appeal: see, for example, Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]; Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 6094 at [29]; Woodside v Australian Workers’ Union [2022] FWCFB 168 at [21]-[22]; Santos WA Energy Ltd v Whittaker [2024] FWCFB 231 at [10]; OSM Australia Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FWCFB 77 at [23]-[26]. This presents a substantial hurdle that Ms Hinton-Tooley’s application would need to clear. -- 3 of 6 -- [2026] FWC 1353 4 [13] Given that the decision involved the exercise of a discretion, Ms Hinton-Tooley will need to establish error of the type discussed in House v The King (1936) 55 CLR 499 to succeed on appeal. The grounds of appeal annexed to the notice of appeal assert, in relation to the refusal of the Commissioner to make a confidentiality order, that the Commissioner failed to consider the dismissal of the claim, the absence of an employment relationship and the reputational harm claimed to be suffered or whether the publication of Ms Hinton-Tooley’s name would result in disproportionate harm. Based on a preliminary assessment, it appears to me that the Commissioner set out and expressly considered those matters at paragraph [4] of the decision of 7 April 2026. On the grounds of appeal as presently framed, it appears to me that Ms Hinton- Tooley simply disagrees with the exercise of the discretion on the part of the Commissioner rather than identifying any relevant error. [14] Second, I am not convinced that the balance of convenience favours granting an interim non-publication order or that a sufficient basis has been demonstrated for an interim non- publication order in relation to Ms Hinton-Tooley’s name even pending determination of the appeal. Ms Hinton-Tooley asserts that she and her family are suffering and will suffer immediate reputational harm by reason of her name being used in the decision of 7 April 2026 which is available on the Commission’s website. As I understand the submission, this is primarily said to be due to the association of her name with what I will refer to as a regulatory complaint referred to in the earlier decision of the Commissioner dated 20 February 2026. Ms Hinton-Tooley states that the information is materially misleading, third parties may not appreciate that the allegations were not substantiated, the prejudice is exacerbated by the inclusion of unproven allegations and adverse commentary and that the information is capable of affecting prospective employers and third parties who encounter the decision without full context. [15] On the material available to me, I am unable to accept that any potential for harm to Ms Hinton-Tooley or her family is as grave as she suggests. Ms Hinton-Tooley’s name is not used in the decision of 20 February 2026. To discern any association between Ms Hinton-Tooley and the matters referred to in that decision would require a person to trace through the history of the proceedings on the Commission’s website. I regard this to be an unlikely eventuality. Even if a person did so, the earlier decision of the Commissioner records that the complaint to the regulatory authority was investigated, found not to be evidenced and that the regulatory authority would not continue to be involved. A fair-minded reader would not discern any negative implications for Ms Hinton-Tooley arising from that matter. Furthermore, the bullying application was dismissed and, as the Commissioner observed, Ms Hinton-Tooley can claim some degree of vindication as a result. [16] Ms Hinton-Tooley asserts that there is no public interest in identifying her personally. With respect, Ms Hinton-Tooley overlooks that there is an important public interest in the Commission’s processes and decision-making being open and transparent. The public interest is not in the publication of a particular decision of the Commission, but in the Commission’s proceedings generally being open and transparent. In Application by the United Nurses of Australia [2025] FWC 239, for example, I said (at [11]): … the basis of, and justification for, the principle of open justice is, in my opinion, significant in the context of the exercise of the Commission’s discretion as to whether to make an order under s 594(1). The Commission is conferred with various types of jurisdiction. It includes the -- 4 of 6 -- [2026] FWC 1353 5 determination of disputes between individual parties, disputes involving groups of employees and/or employers and setting minimum terms and conditions of employment for industries and occupations across the country. Although it does not, and cannot, undertake a judicial role, many functions of the Commission are carried out in a quasi judicial manner and involve a process which is akin to a judicial process. It is critical to the work of the Commission that the public can have confidence in the integrity and independence of its decision-making. Public confidence in the Commission’s processes is aided by the those processes being conducted in a transparent manner and exposed to public scrutiny in a manner similar to court proceedings. [17] It has frequently been recognised that one consequence of the principle of open justice is that untested allegations which are embarrassing or potentially damaging to individuals or organisations may become public. In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131, Kirby P observed (at 142-143): It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. [18] In that context, mere embarrassment or distress has not been regarded as sufficient to justify a non-publication order even on the lower standard of whether it is desirable to make such an order under ss 593(3) or 594(1) of the FW Act: Day v Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80 at [30]; Mac v Bank of Queensland [2015] FWC 774; (2015) 247 IR 274 at [9]. [19] Having considered the nature of the matters about which Ms Hinton-Tooley has expressed concern in the context of the important principle of open justice, I am not satisfied it is desirable to make an interim non-publication order. The application for a stay, which I have treated as an application for an interim non-publication order, is refused. VICE PRESIDENT Appearances: -- 5 of 6 -- [2026] FWC 1353 6 A Hinton-Tooley appeared for herself. F Glumac appeared for herself. Hearing details: Determined on the papers. Printed by authority of the Commonwealth Government Printer <PR798784> -- 6 of 6 --