Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 PARTIES: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Applicant) v Aurizon Operations Limited (Respondent) CASE NO: WHS/2021/113 PROCEEDING: WHS Dispute DELIVERED ON: 30 July 2021 HEARING DATE: 15 July 2021 MEMBER: HEARD AT: O'Connor VP Brisbane ORDERS: 1. The application pursuant to s 102E(1)(b) of the Work Health and Safety Act 2011 (Qld) to not deal with the matter because, inter alia, the application is misconceived or lacking in substance is refused; 2. The matter is referred to arbitration; and, 3. Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) the application to anonymise -- 1 of 13 -- 2 the identity of the two workers the subject of this matter is granted. CATCHWORDS: INDUSTRIAL LAW – WORK HEALTH AND SAFETY – where notice of dispute pursuant to s 102B of the Work Health and Safety Act 2011 filed – where matter not resolved in conference – whether matter should be referred to arbitration – whether commission should use its discretion to decide not to deal with a dispute pursuant to s 102E of the Work Health and Safety Act 2011 – whether the subject of dispute is misconceived or lacking in substance – dispute referred to arbitration. INDUSTRIAL LAW – where an application for suppression of names of individual workers made – where principle of open justice considered – application granted. LEGISLATION: CASES: Anti-Discrimination Act 1991 (Qld), s 139 Equal Opportunity Act 1984 (VIC) Fair Work Act 2009 (Cth), s 183 Industrial Relations Act 2016 (Qld), s 580 Work Health and Safety Act 2011 (Qld), s 102B, s 102C, s 102E Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 A-G (UK) v Leveller Magazine Ltd [1979] AC 440 Carra v Hamilton (2001) 3 VR 114 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dickason v Dickason (1913) 17 CLR 50 Ebber and Another v Human Rights and Equal Opportunity Commission and Others (1995) 129 ALR 455 General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 Ho v Loneragan [2013] WASCA 20 -- 2 of 13 -- 3 J v L & A Services Pty Ltd (No 2) [1993] QCA 12; [1995] 2 Qd R 10; 30 ALD 791 John Fairfax Group Pty Ltd v The Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Legal Services Commissioner v Ball [2001] NSWADT 86 R v Sussex Justices; Ex parte McCarthy [1924] KB 256 Scott v Scott [1913] AC 417 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; [1996] VsC 78 Toodayan & Anor v Anti-Discrimination Commissioner Queensland [2018] QCA 349; [2019] 1 QLR 9 Wandin Springs v Wagner [1991] 2 VR 496 APPEARANCES: Ms C. Jones of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch for the Applicant. Mr S. MacNeill of Aurizon Operations Limited for the Respondent. Reasons for Decision [1] On 20 May 2021, the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ('RTBU') filed a notice of dispute pursuant to s 102B of the Work Health and Safety Act 2011 ('the WHS Act') on behalf of their member, Ms A (a pseudonym), against Aurizon Operations Limited ('Aurizon'), in relation to their employee, Mr B (a pseudonym). [2] The subject matter of the dispute was expressed as follows: 1. A female Locomotive Driver was sexually harassed by a fellow male employee in late 2019. 2. The sexual harassment left the woman with a psychological injury. 3. The female employee raised a formal complaint with the employer. 4. The employer washed their hands of the matter as they believed, incorrectly, that the sexual harassment occurred outside of work. 5. The employer has permitted the harasser to move to the same workplace as the victim. 6. The employer has provided the victim a letter which provides directions on how to deal with the harasser's conduct and how to raise a complaint should his behaviour resurface. 7. The employer has a duty to eliminate all risks and hazards in the workplace. [8.] This includes the specific risk and hazard posed by the harasser working in the same workplace as their victim. [9.] The employer is within their powers to move -- 3 of 13 -- 4 the harasser away from the victim to another workplace. [10.] The employer has refused to eliminate this risk to the female worker. [3] The matter was conciliated on 27 May 2021 and 14 June 2021 however it was not resolved. [4] To assist in the resolution of the dispute, Aurizon, by letter dated 2 June 2021, advised Ms A as follows: I confirm the following risk control measures have been implemented by Aurizon to separate you and [Mr B] while at work and to ensure appropriate work-related conduct: a. You will not be rostered on a train with Mr B. If you become aware that you have been rostered with Mr B you should immediately advise your Regional Operations Leader so this can be changed. Mr B has been given this same instruction; b. If you are in a position where you are required to relieve or be relieved by Mr B you are required to have the second driver you are rostered with to complete the handover and you should make your way to the locomotive cab or Aurizon vehicle. Any concerns should be raised with your Regional Operations Leader. Mr B has been given this same instruction; c. Both you and Mr B have been instructed not to approach or make verbal or written contact with each other in the workplace and reminded to abide by the Company Values and Code of Conduct in relation to all work-related interactions and activities; and d. Both you and Mr B have been instructed not to discuss your relationship or history with each other, or other matters that may relate, with other Aurizon employees. [5] Dr Lawrence Wong, a General Practitioner, provided a brief report dated 15 June 2021. In that report Dr Wong opined: Ms A is at serious risk of a relapse of a psychological injury as a result of being exposed to a man who she reported to me that had sexually harassed her 2 years ago. The primary risk arises from being exposed to him in the workplace, and she has explained that this has already occurred. This risk does not only arise as a result of his potential future conduct, but also arises when [she] sees him and is aware of his presence. [6] On 6 July 2021, the RTBU requested that the matter be referred to arbitration pursuant to s 102C of the WHS Act. The Respondent opposes the request. Background [7] Ms A is a locomotive driver in Aurizon's Toowoomba depot. She commenced employment with Aurizon in October 2017. [8] Ms A made a complaint which alleged that during 2019, she was sexually harassed by another locomotive driver, Mr B. The allegations relate to certain text messages that Ms A received from Mr B in 2019. At the time the relevant texts were received both Ms A and Mr B were based at Aurizon's Fisherman's Island depot. -- 4 of 13 -- 5 [9] Whilst it is accepted by Aurizon that the content of some of the texts is inappropriate, they were sent, it was contended, in the context of other communication between Ms A and Mr B. [10] The initial concerns raised by Ms A were not, at the time, investigated by Aurizon on the basis that they were not work related. This decision was based upon the belief by Aurizon that they were made in the context of a pre-existing friendship between Ms A and Mr B prior to Ms A commencing employment with Aurizon. [11] In or around February 2021, Aurizon sought expressions of interest from employees based at Fisherman Islands depot to transfer to the Toowoomba depot due to changes to Aurizon's operating model. [12] In February 2021, Ms A raised further concerns regarding the text messages Ms A received from Mr B in 2019. Aurizon conducted an investigation regarding the text messages in 2021. [13] Mr B applied for and was successful obtaining a transfer to Aurizon's Toowoomba depot. That transfer was delayed pending the outcome of the investigation conducted by Aurizon in 2021. Mr B commenced working at Aurizon's Toowoomba depot in May 2021, after the findings in the 2021 investigation had been made. [14] Whilst no disciplinary steps were taken against Mr B, Aurizon put in place a number of 'risk control measures'. In the outcome of the disciplinary process, Mr B was advised by letter dated 5 May 2021 the following: On balance, it has been determined that:  Ms A and yourself had a personal relationship (friendship) which was established prior to Ms A's employment with Aurizon.  The text messages between yourself and Ms A were of a sexual nature several times throughout both of the conversations in question, however, it is reasonable to conclude that this exchange occurred on personal devices due to the nature of your pre-existing personal relationship outside of the workplace, not as employees of Aurizon. As this is not a workplace matter, resolution does not rest with Aurizon to intervene in personal matters unrelated to the workplace. As a result of this finding the allegation is unsubstantiated and no disciplinary action will be taken on this personal matter between yourself and Ms A. However, Aurizon acknowledges that there is a breakdown of your personal relationship with Ms A and as you are both employed by Aurizon it is appropriate to support a level of separation between yourself and Ms A in the workplace. I have outlined this below in Workplace Expectations. -- 5 of 13 -- 6 Workplace Expectations  As an employee of Aurizon I would firstly like to remind you that you are to abide by the Company Values and Code of Conduct while on Aurizon property, performing work, or at a social event supported by Aurizon.  Aurizon will put steps in place so you will not be rostered with Ms A. Should you become aware that you have been rostered on the same train please advise your Regional Operations Leader immediately in order to have this changed.  You are not to approach Ms A in the workplace. If you are in a position where you are required to relieve or be relieved by Ms A you are required to have the second driver you are rostered with to complete the handover and you should make your way to the locomotive cab/ or Aurizon Vehicle. Any concerns or issues you should raise this with your Regional Operations Leader.  You are not to use any Aurizon systems, programs or devices such as phones, computers, Aurizon email, or iPads to make contact and/ communicate either written or verbal with Ms A.  You are not to send messages or communicate either written or verbal with Ms A via other Aurizon employees in the workplace.  You are not to discuss your relationship or history with Ms A or other matters that may relate, with other Aurizon employees. [15] Aurizon contends that it has minimised the risk so far as reasonably practicable by implementing the control measures set out in the correspondence of 5 May and 2 June 2021. [16] The Commission was advised that following receipt of the relevant texts in 2019, Ms A asked Mr B to cease all contact with her. He has done so and there has been no further inappropriate conduct by Mr B towards Ms A since 2019. [17] The Applicant considers that the control measures put in place by Aurizon are, in their opinion, inadequate to protect Ms A and instead seeks to have Mr B transferred to another work location. [18] However, Aurizon contends that the relevant federal enterprise agreement that applies to the employment of both Ms A and Mr B; namely the Aurizon Coal Enterprise Agreement 2019, prohibits Aurizon from forcibly relocating Mr B to another workplace. Clause 14.1 relevantly provides: An employee will not be forced to relocate from their home location to an alternate home location. [19] The RTBU gave notice under s 183 of the Fair Work Act 2009 (Cth) ('FW Act') for the above enterprise agreement to cover it, and it does so. [20] Aurizon submits that there are no other reasonably practicable steps that they could take to eliminate or minimise the relevant risks. -- 6 of 13 -- 7 Legislative context [21] Section 102B of the WHS Act provides as follows: 102B Notice of dispute may be given to commission (1) This section applies if a dispute remains unresolved at least 24 hours after any of the parties to the dispute has, under another provision of this part, asked the regulator to appoint an inspector to assist in resolving the dispute. Note— See also section 71 (5), 82 (2) or 89 in relation to a request by a party that the regulator appoint an inspector to assist in resolving the dispute. (2) A party to the dispute may give the industrial registrar written notice of the dispute. (3) The notice must state each of the following matters— (a) the names of the parties to the dispute; (b) the workplace where the dispute exists; (c) the WHS matter the subject of the dispute; (d) whether a decision made by an inspector to exercise, or not to exercise, compliance powers under part 10 to assist in resolving the dispute is subject to review under part 12. (4) On receiving the notice, the industrial registrar must immediately publish it on the QIRC website within the meaning of the Industrial Relations Act 2016. (5) A relevant union for the WHS matter may notify the industrial registrar, in writing, that the union wants to participate in the resolution of the dispute. (6) A relevant union that gives notice under subsection (5) is taken to be a party to the dispute for the purposes of this division. [22] Section 102E of the WHS Act provides as follows: 102E Decision not to deal with dispute (1) The commission may decide not to deal with a dispute about a WHS matter if— (a) notice of the dispute was not given in accordance with section 102B ; or (b) the commission considers the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance. (2) Subsection (1) does not limit the grounds on which the commission may decide not to deal with the dispute. (3) The commission may make a decision under subsection (1) on its own initiative. Consideration [23] The Respondent asks the Commission to exercise its powers under s 102E(1)(b) of the WHS Act to not deal with the matter because, inter alia, the application is misconceived or lacking in substance. The Respondent does not rely on 'frivolous' or 'vexatious' as grounds not to deal with the matter. [24] The expression 'frivolous, vexatious, misconceived or lacking in substance' appears in a wide variety of statutory contexts and the meaning of the individual terms within the expression has been the subject of judicial consideration in various jurisdictions. -- 7 of 13 -- 8 [25] In Legal Services Commissioner v Ball1, the Legal Services Commissioner filed an Information in the Legal Services Tribunal against Ball containing five grounds of complaint of unsatisfactory professional conduct or professional misconduct. A dispute arose between the parties about the particulars provided in purported satisfaction of an order of the Tribunal. A series of orders were made by the Tribunal to provide the particulars sought by Ball. Those particulars were ultimately provided but after consideration of the particulars provided, Ball moved the Tribunal for an order that the information should be dismissed on the grounds that 'it is frivolous, vexatious, otherwise misconceived or lacking in substance pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997'. [26] In determining the meaning to be given to the phrase 'frivolous, vexatious, otherwise misconceived of lacking in substance' the Tribunal wrote: There is a tension in the Australian law between the view espoused in the Federal Court of Australia as to the meaning of the term “lacking in substance” and the view expressed by the Victorian Court of Appeal. The Federal Court in a number of cases (see, eg, Nagasinghe v. Worthington (1994) 53 FCR 175 at 178 and Ebber v. Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 466) has endorsed the statement of Sir Ronald Wilson, sitting in the Human Rights & Equal Opportunity Commission, in GVR v. Department of Health, Housing & Community Services (23 August 1993) that: "The meaning of the term ‘lacking in substance’ has been considered in a number of decisions of this Commission. My view … is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance.” In State Electricity Commissioner v. Rabel (1998) 1 VR 102, the Victorian Court of Appeal declined to accept that formulation of the test and held that to be “lacking in substance” a claim must disclose no arguable case. The distinction is of such subtlety as to make it unlikely that a choice between one formulation or the other would affect the decision in any but an exceptional case. However that may be, in this case the Tribunal is satisfied that on the three grounds of the information relating to deception and misappropriation no arguable case has been disclosed and the grounds should be struck out as lacking in substance.2 [27] In Ebber and Another v Human Rights and Equal Opportunity Commission and Others3 Drummond J stated that: A complainant must have, at the outset of the inquiry, sufficient material to show more than a remote possibility of a well-founded claim, if an application for the summary dismissal of the case were to be defeated.4 1 [2001] NSWADT 86. 2 Ibid, [25] – [27]. 3 (1995) 129 ALR 455. 4 Ibid, 455. -- 8 of 13 -- 9 [28] In relation to what is meant by the terms misconceived and lacking in substance, Ormiston JA in State Electricity Commission of Victoria v Rabel5 said, with respect to a similar provision found in the Equal Opportunity Act 1984 (VIC): "Frivolous" and "vexatious" are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of "abuse of process", but the terms "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" (as in para. (1)(a) of r. 23.01), whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment,...6 [29] Ormiston JA found that a complaint could not be dismissed unless ‘it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing’: In the absence of a proper hearing at which the complainant has an opportunity to call all relevant evidence there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end. For this purpose I cannot accept that Parliament intended a lesser test than has been imposed by the courts, nor can I accept that the power to dismiss should be exercised upon the basis that the claim "presents no more than a remote possibility of merit", if that expression means anything other than that the complainant has no reasonable prospect of success. At a preliminary stage there is simply no argument that some lesser form of insubstantiality can be relied upon to terminate a complaint. With respect, some form of "curate's egg" test cannot be considered acceptable, if it is to be applied before a hearing gets under way. The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary tribunal hearing. Whatever test may be acceptable at other stages of the administrative process or during the conduct of an ordinary tribunal hearing, a complaint cannot be dismissed under [the equivalent of s 102] unless it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing. [30] In General Steel Industries Inc v Commissioner for Railways (New South Wales)7 Barwick CJ expressed the view that the action must be 'so clearly untenable that it cannot possibly succeed'. His Honour concluded: The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 5 [1998] 1 VR 102; [1996] VsC 78. 6 [1998] 1 VR 102, 108-109; [1996] VsC 78, [8]. 7 (1964) 112 CLR 125. -- 9 of 13 -- 10 At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance.8 [31] In Dey v Victorian Railways Commissioners,9 Dixon J (as his Honour then was) after considering a number of authorities, wrote: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.10 [32] More recently, the Court of Appeal considered in Toodayan & Anor v Anti- Discrimination Commissioner Queensland ('Toodayan')11 what is meant by the terms misconceived and lacking in substance in the context of s 139(b) of the Anti- Discrimination Act 1991 (Qld). Burns J (Fraser and Philippides JJA agreeing) wrote: The nature of the commissioner’s task under s 139(b) is informed by these statutory features as well as the protective purpose of the legislation. A complaint cannot be expected to “allege the relevant facts with the particularity of an indictment or of a pleading”. Nor should it be assumed that the details supplied are comprehensive or that they aspire to do any more than indicate what is intended to later be proved to establish the complaint. Thus, when forming an opinion under that provision, the question for the commissioner is whether the details provided in and with the complaint, if proved at a hearing of the tribunal, are indicative of a contravention that is neither misconceived nor lacking in substance. A complaint will be “misconceived” if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and “lacking in substance” where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA. Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.12 [33] Whilst the majority of reported decisions which relate to the power to dismiss an application as misconceived or lacking in substance are to be found in the Anti- Discrimination jurisdiction, the jurisprudence those decisions have produced assist this Commission in determining what is meant by the terms misconceived and lacking in substance. 8 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129. 9 (1949) 78 CLR 62. 10 Ibid. 11 [2018] QCA 349; [2019] 1 QLR 9. 12 Ibid, [42]. -- 10 of 13 -- 11 [34] Having regard to the authorities, I am mindful that caution needs to be exercised in considering the application of s 102E of the WHS Act to ensure that the Applicant is not improperly deprived of her opportunity for the hearing of her case by the Commission. [35] The dispute raises issues of both fact and law. A live question is whether the Aurizon Coal Enterprise Agreement 2019 prohibits Aurizon from forcibly relocating Mr B to another workplace; which raises issues of the interrelationship between the WHS Act and the FW Act. Importantly, it raises the vexed question of whether and to what extent should an industrial tribunal become involved in the settlement of a dispute where the result may amount to an interference with the autonomy of management to decide how the business enterprise shall be conducted. [36] On the material before the Commission, it cannot be said that this is a matter that is so lacking in substance as to justify withholding it from going to arbitration. As was observed in Toodayan: Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.13 [37] For the reasons expressed above, I cannot form such a view. Application to anonymise parts of the decision [38] Aurizon filed in the Industrial Registry an application in existing proceedings seeking an order pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld) that the names of the individual workers, the subject of this dispute not be identified. [39] The application is supported by the RTBU. [40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’.14 This is a central feature of the administration of justice under the common law. [41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure,15 it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted,16 and decisions 13 [2018] QCA 349, [42]. 14 R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. 15 Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. 16 Scott v Scott [1913] AC 417, 434–5; Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7. -- 11 of 13 -- 12 pronounced, in ‘open court’;17 second, that evidence is communicated publicly to those present in the court;18 and, third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media. [42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions. [43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power. It relevantly provides as follows: 97 Publishing decisions etc. (1) The registrar may publish on the QIRC website— (a) a decision of the court, commission or registrar; and (b) notice of the making or amendment of a bargaining instrument. (2) The registrar must, if the commission directs, publish an amendment of a bargaining instrument on the QIRC website. Note— For other documents the registrar must publish on the QIRC website, see sections 160, 161, 215, 230 and 459 of the Act. (3) The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate— (a) withhold publication of a document; or (b) modify a document, before publication, in a way that does not affect the essence of the document. [44] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm. [45] In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice. [46] As was observed by Mahoney JA in John Fairfax Group Pty Ltd v The Local Court of New South Wales19 these are the 'unacceptable' consequences that sometimes arise in 17 Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20. 18 A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450. 19 (1991) 26 NSWLR 131, 161. -- 12 of 13 -- 13 litigation. Of course, as observed by Pincus JA in J v L & A Services Pty Ltd (No 2),20 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity - an exercise involving considerations of fairness'.21 [47] In my view having regard to the relative size of the depot and the people involved that, considered as a whole, the order withholding the workers names should be granted. I note also that the application has the support of the RTBU. Conclusion [48] For the reasons expressed above, I do not consider it appropriate to exercise my powers under s 102E of the WHS Act as I do not believe that at this stage of the proceedings, the complaint is misconceived or lacking in substance. I therefore decline to discontinue the proceedings, and I dismiss Aurizon's application. [49] I am of the opinion that the dispute ought to be referred to arbitration. However, in saying that I have some reservations about the exact nature of the question tentatively posed by the Applicant. It is not necessary for me to express a view about the question for arbitration as it is a matter which can properly be considered by the Member of the Commission who will ultimately arbitrate the matter. Orders [50] I make the following orders: 1. The application pursuant to s 102E(1)(b) of the Work Health and Safety Act 2011 (Qld) to not deal with the matter because, inter alia, the application is misconceived or lacking in substance is refused; 2. The matter is referred to arbitration; and, 3. Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) the application to anonymise the identity of the two workers the subject of this matter is granted. 20 [1993] QCA 12; [1995] 2 Qd R 10; 30 ALD 791 21 Ibid, 49. -- 13 of 13 --