AB v Free Hearts Free Minds [2025] FWC 807

1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal AB v Free Hearts Free Minds (C2024/8663) COMMISSIONER REDFORD MELBOURNE, 21 MARCH 2025 Application to deal with contraventions involving dismissal – jurisdictional objection – application for confidential evidence orders [1] This matter concerns an organisation called Free Hearts Free Minds (FHFM). FHFM primarily provides support to people who live or have lived in a Muslim-majority country who have faced persecution because of their beliefs and / or orientation. [2] Both parties in this matter ask that the Commission make orders pursuant to s 594 of the Fair Work Act 2009 (the Act) prohibiting or restricting publication, to some extent, of some information in relation to this matter. Both parties consent to the other’s application in some respect. The two applications are referred to below as “the applications”. [3] On 14 March 2025 I issued the parties a Statement in relation to this matter, expressing a provisional view about the applications. Parties were invited to express any view they had or make submissions about this provisional view. Neither did so, and for the reasons that follow I confirm my provisional view in relation to this matter. The basis for the applications FHFM [4] The explanation for the Orders sought by FHFM is contained within a witness statement filed by it. The witness statement says: “Apostasy is considered a capital offence in some Islamic majority nations. Studies have shown that a majority of first and second-generation Muslims living in Western nations hold views which agree that apostasy should be punishable by death. It is not an exaggeration to say that maintaining my anonymity is a matter of life and death to me.” The Applicant [2025] FWC 807 DECISION -- 1 of 6 -- [2025] FWC 807 2 [5] The Applicant’s grounds for the Order sought are as follows: 1. The Applicant is in fear of retaliation for her work with Free Hearts Free Minds. 2. It is common practice that within the organisation that staff do not use their full names so that their risk of retaliation is reduced. 3. Free Hearts Free Minds is an organisation that provides psychological support to persons renouncing their religion in “Muslim Majority” countries. The organisation asserts that these persons are at risk of persecution or execution for renouncing their religion, as such there is a risk of retribution against these people and the people who support them (i.e. the Applicant). 4. The Applicant does not object to the Respondent’s names, address details, contact information and any other identifying feature be prohibited or restricted. 5. The Applicant does not consider it necessary to prohibit the publication of the decision in its entirety given the publicly facing website of the Respondent, only that the individuals’ identities of both parties be made confidential. What is sought? [6] FHFM seeks the following Order “Pursuant to s.594(1) of the Fair Work Act 2009, the Commission: 1. Prohibits the publication or disclosure of any evidence given to the Fair Work Commission in relation to the matter. 2. Prohibits the publication or disclosure of any information that reveals or tends to reveal the name, pseudonym or address of [redacted] and/or [redacted]. 3. Prohibits the publication or disclosure of the matters contained in documents lodged with the Fair Work Commission or received into evidence by the Fair Work Commission. 4. Prohibits the publication or disclosure of the whole or any part of its orders, decisions, or reasons in relation to these proceedings in the Fair Work Commission. 5. These orders are to apply throughout the Commonwealth of Australia while these proceedings are on foot and continue thereafter until further order of the Fair Work Commission.” -- 2 of 6 -- [2025] FWC 807 3 [7] The Applicant seeks the following Order: 1. In these proceedings the Applicant must not be named or identified other than by the pseudonym, “JR”. 2. No material shall be disclosed or published that identifies the Applicant’s full name, address or any other contact details. 3. Reciprocal deidentifying measures are taken in respect of the Respondent and those persons providing evidence (“YM”, “KM”). 4. No material shall be disclosed or published that identifies the Respondent witnesses’ full name, address or any other contact details. 5. In any decision of this Commission, any other matters that include identifying features of the Applicant and the Respondent will be redacted. 6. The Respondent entity will be referred to as the Respondent. The principles to be applied. [8] Section 594 of the Act allows the Commission to make an order prohibiting or restricting the publication of certain documents or information associated with proceedings before the Commission, and can make orders prohibiting or restricting the publication of names and addresses of persons appearing at a hearing or evidence given at a hearing or matters contained in documents before the Commission. It provides as follows: 594 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; (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)). -- 3 of 6 -- [2025] FWC 807 4 [9] The power may be exercised where the Commission considers it is desirable to do so. This is a broader power to make orders prohibiting or restricting the publication of evidence or documents in proceedings before the Commission than that which is applied by the courts or at common law, or pursuant to some statutes or rules governing the operation of the courts1. [10] However, the principle of open justice is significant in the context of the exercise of the Commission’s discretion to make an order under s 594(1). As Vice-President Gibian recently said2: “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 those processes being conducted in a transparent manner and exposed to public scrutiny in a manner similar to court proceedings.”3 [11] The principle of open justice therefore requires consideration of often competing considerations: on the one hand, the desirability of judicial and quasi-judicial process to be conducted in public, against the natural good sense in the avoidance of unnecessary embarrassment or damage. As Kirby J said in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW)4: “It is 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 I their various alternative forms … A significant reason for adhering to a stringent legal principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice.”5 Consideration [12] Taking into account these principles, my determination in relation to the application is as follows. The names of persons associated with and named in the proceeding. [13] At the outset, I will note there is not a great deal of evidence before me that the identification by name of people associated with these proceedings and FHFM will cause them danger, simply because their work involves assisting other people who have renounced their religious beliefs. Rather, there is merely an assertion, albeit given in evidence, to this effect. [14] However, it appears there is consent between the parties that the identification of the names of three people associated with the proceedings may cause those persons danger. Those people will now be referred to as Ms AB (the Applicant), Mr CD and Ms EF. In circumstances where (a) there is some evidence (brief, although not contested) of this potential danger before the Commission, and (b) apparent consent in relation to the orders sought, it is my view that it -- 4 of 6 -- [2025] FWC 807 5 is desirable an Order be made ensuring that the three people in question must not be named or identified other than by pseudonym, except where the parties and their representatives may refer to the those persons by their name known to the parties and their representatives in their communications between each other or with the Commission. This will extend to any Decision or Order made by the Commission in this matter which is published and any transcript issued. Publication or disclosure of Orders, Decisions, evidence or other matters associated with the proceeding. [15] Second, it appears it is sought by FHFM, but not agreed by the Applicant, that an Order be made prohibiting the publication or disclosure of the whole or any part of any order, decision, or reason in relation to these proceedings in the Commission. Flowing from this also appears to be Orders sought that would prohibit the publication or disclosure of any evidence given to the Commission in relation to the matter or matters contained in documents lodged with the Commission or received into evidence. [16] Taking into account the principles I am required to apply in the exercise of the power conferred by s 594, I do not consider that Orders to this effect should not be made. FHFM is a public-facing organisation. Its mission, to the extent that it may be controversial, is known. The particular basis upon which it might be said to be desirable that a decision concerning it, which names it, not be made public has not been articulated. If the individuals concerned are anonymised, any danger to themselves is minimised, in a way in which the business of the Commission can still be conducted consistent with the principle of open justice. Summary [17] With regard to the Orders sought by FHFM Orders to the same effect as [2] will be made. With regard to the orders sought by the Applicant, Orders to the same effect as [1], [2], [3] and [4] will be made. An Order6 to that effect shall issue with this decision. -- 5 of 6 -- [2025] FWC 807 6 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR785417> 1 Santos WA Energy Ltd v Darren Whittaker [2024] FWCFB 231 2 Application by the United Nurses of Australia [2025] FWC 239 3 Ibid [11] 4 (1991) NSWLR 131 5 Ibid [142 – 143] 6 PR785418 -- 6 of 6 --