30 December 2024
Glenn Hamiltonshire
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Hamiltonshire,
Freedom of Information – Notice of decision
FOI Reference number: 24/25 – 33
I refer to your email to the Fair Work Commission (Commission) dated 29 November 2024, in which you
made a request for documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
Decision
My decision is as fol ows:
partial access to Document 1 is granted with selected information conditional y exempt under
sections 47E(d) and 47G on the grounds that the disclosure of that information would, on
balance, be contrary to the public interest; and
partial access to Document 2 is granted with selected information conditional y exempt under
section 47E(d) as the disclosure of that selected information would, on balance, be contrary to
the public interest.
I am authorised as a delegate of the President of the Commission under the FOI Act to make a decision
in relation to your request. The 30-day statutory time period for processing your request commenced
on the day after the day on which the request was received. The due date for your request is Monday
30 December 2024.
The reasons for my decision are outlined in further detail in this letter. However, I wil first recap your
request.
Request
In your email of 29 November 2024, you stated:
“I request access to the Style Guides/Brand Guides/Writing Guides currently used for the Fair Work
Commission.”
I requested the Commission’s publication team conduct a search for the requested documents. I also
checked the Commission’s document storage system to identify documents that came within the scope
of your request.
The documents that were identified that came within the scope of your request include:
11 Exhibition Street
Telephone: (03) 8656 4544
Melbourne VIC 3000 Email: xxx@xxx.xxx.xx
GPO Box 1994
Melbourne VIC 3001
Fair Work Commission Editorial standards (Document 1)
Fair Work Commission Brand style Guide (Document 2)
Reasons for decision
Considerations
In reaching my decision, I considered the fol owing:
your request dated 29 November 2024;
the FOI Act;
guidelines issued by the Office of the Australian Information Commissioner, as prescribed under
section 93A of the FOI Act (FOI Guidelines); and
the results of searches performed by Commission staff in locating the requested documents.
Reasons for decision
Before I provide an explanation regarding the reasoning behind my decision, there are some key points
that I wil raise regarding the scope of your request and the FOI Act.
Section 11 of the FOI Act bestows upon you a legal y enforceable right to access documents held by a
Commonwealth agency such as the Commission.
If a decision-maker reaches a conclusion that part of, or the entirety of a document fal s within an
exemption under the FOI Act, then part of, or the entirety of that document does not have to be
disclosed.1
There is nothing in the FOI Act which limits what an applicant can do with any document which is
released to them and that has been taken into consideration for the purposes of this request. In other
words, a decision to give an individual access to a document under the FOI Act is general y done on the
premise that the disclosure of that document is disclosed to a wider audience.2
I wil now turn to the requested documents.
Document 1 – Fair Work Commission Editorial standards
Document 1 outlines the standards the Commission expects its staff to fol ow in its written
communications. The document is based on the Australian Style Guide Manual which is publicly
available.
I have decided to redact the username and password made available to Commission staff to access the
Commission’s Macquire Dictionary online account information under section 47G of the FOI Act as I
consider this to be confidential business information.
1 Freedom of Information Act 1982 (Cth), s.31B.
2 [3.36] FOI Guidelines.
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Business information (section 47G of the FOI Act)
Section 47G of the FOI Act provides:
47G Public interest conditional exemptions – business
(1) A document is conditional y exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional affairs or
concerning the business, commercial or financial affairs of an organisation or undertaking,
in a case in which the disclosure of the information:
(a) Would, or could reasonably be expected to, unreasonably affect that person adversely
in respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs; or
(b) Could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an
agency.
…
The operation of this conditional exemption depends on the effect of the disclosure rather than the
precise nature of the information itself. The relevant conditional exemption that applies in this context
is section 47G(1)(b).
Whether this conditional exemption applies in relation to the disclosure of the requested information
requires an objective assessment as to whether there wil be an expected adverse effect in releasing
the requested information.
The words ‘would or could reasonably be expected to’ in the context of section 47G(1)(b) involve a
consideration of the likelihood of the predicted or forecast event, effect or damage occurring after
disclosure of a document. The meaning of the word ‘could’ requires an analysis of the reasonable
expectation that an effect has occurred, is presently occurring, or could occur in the future. There also
must, based on reasonable grounds, be at least a real, significant or material possibility of prejudice.
Based on the above information, I am satisfied that the username and password I have redacted is
conditional y exempt under section 47G of the FOI Act. However, I wil consider the public interest
exemption below.
Public interest exemption
Under section 11A(5) of the FOI Act, the Commission must give you access to a conditional y exempt
document unless in the circumstances it would be, on balance, contrary to the public interest to do so.
This applies to the confidential business information conditional exemption.
For the purposes of the FOI Act, ‘public interest’ is considered to be:
something that is of serious concern or benefit to the public, not merely of individual interest;
not something of interest to the public, but in the interest of the public;
not a static concept, where it lies in a particular matter wil often depend on a balancing of
interests;
necessarily broad and non-specific; and
related to matters of common concern or relevance to al members of the public, or substantial
section of the public.
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Furthermore, I must have regard to section 11B(3) of the FOI Act, which outlines the factors favouring
disclosures in the context of public interest. Section 11B(3) provides:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the
document would do any of the fol owing:
a. promote the objects of this Act (including al the matters set out in section 3 and 3A).
b. inform debate on a matter of public importance.
c. promote effective oversight of public expenditure.
d. al ow a person to access his or her own personal information.
It is also worth considering whether there are any public interest factors which weigh against the
disclosure of the redacted information within the requested documents. The FOI Act does not provide a
list of public interest factors which weigh against the disclosure of a document however, [6.224] of the
FOI Guidelines provides a non-exhaustive list of those factors, which I have reviewed.
Final y, I cannot and have not considered the factors listed in section 11B(4) of the FOI Act, as those
factors are irrelevant in relation to the public interest aspect of the conditional exemptions.
The public interest factor favouring access it that release of the document wil promote the objects of
the FOI Act. However, I do not consider the release of the Commission’s username and password for its
online Macquarie Dictionary account promotes a matter of public importance nor does the information
contain any information about public expenditure.
The relevant public interest factors against granting access to the conditional y exempt information are
outlined at 6.233 of the FOI Guides.
The FOI Guidelines at 6.187 also explains that the Administrative Appeals Tribunal (now the
Administrative Review Tribunal) has made a distinction between ‘truly government documents’ and
other business information col ected under statutory authority.3 The first category includes documents
that have been created by government in contrast to documents between government and business.
The AAT decision implies that the conditional exemption is more likely to protect documents obtained
from third-party businesses.4
The Commission’s username and password for the Macquarie Online Dictionary is confidential
information. Granting access to this information would be contrary to the public interest as it wil cause
a degree of harm as it would al ow anyone with knowledge of the username and password to access
the Commission’s Macquarie Online Dictionary account. This may result in damage to the commercial
relationship the Commission has with Macquarie Dictionary as wel as the Commission’s other
commercial relationships it has engaged in with other service providers. The Commission is required to
keep password data confidential and not release such information into the public domain. Release of
this information could undermine the Commission’s existing business relationships with several of its
service providers.
Therefore, on balance, I have decided the Commission’s username and password for the Macquarie
Online Dictionary wil not be disclosed.
3 Re Actors’ Equity Association (Aust) and Australian Broadcasting Tribunal (No 2) [1985] AATA 69
4 Ibid
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I have also decided to redact information under section 47E of the FOI Act from Document 1, which
may impact the proper and efficient conduct of the Commission if it were to be released.
Certain operations of agencies (section 47E of the FOI Act)
Conditional exemption – certain operations of agencies
Section 47E conditional y exempts a document where the document would, or could reasonably be
expect to, prejudice or have a substantial adverse effect on certain identified agency operations. The
relevant conditional exemption outlined is at subsection 47E(d):
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
The FOI Guidelines at 6.18 outlines that the term ‘substantial adverse effect’ broadly means ‘an adverse
effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable
person.’5 The word ‘substantial,’ in the context of substantial loss or damage, has been interpreted as
including ‘loss or damage that is in the circumstances, real or of substance and not insubstantial or
nominal.’6
Additional y, the extent to which this exemption applies is greatly dependent on the circumstances and
context of the information in question.7
Furthermore, in Re James and Others and Australian National University8, Deputy President Hal of the
Administrative Appeals Tribunals observed:
“As a matter of ordinary English, I think that the expression “the conduct of an operations of an
agency” is capable of extending to the way in which an agency discharges or performs any of its
functions.”9
I have decided to redact information contained in Document 1 that explains how the Commission drafts
its communications. Such information concerns the type of font and its size, formatting conventions,
particular phrasing of words commonly used by the Commission and examples of how to interpret the
Guide. Section 47E of the FOI Act provides that a document, or part of a document, is exempt if its
disclosure would, or could, reasonably be expected to have an adverse effect on the proper and
efficient operations of an agency. I have decided to exempt information under subsection 47E(d) of the
FOI Act on the basis that the conditional y exempt information, if disclosed, could be used to assist
those who may wish to create fraudulent Commission correspondence, documents and publications
and pass them off as legitimate.
The information relating to specific Commission styles and examples of how to write content in public
communications does not assist in furthering the objects of the FOI Act. I consider the public benefit in
protecting and maintaining the integrity of Commission correspondence and documents from
fraudulent misuse outweighs any public interest in the release of the redacted information. Public
confidence in the Commission wil be undermined if fraudulent documents are able to be passed off as
legitimate. The risk associated with the loss of public confidence in the Commission’s ability to carry
5 Re Thies and Department of Aviation [1986] AATA 141 [24].
6 Til manns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 [383].
7 Moira Paterson, Freedom of Information and Privacy in Australia; Government and Information Access in the
Modern State (LexisNexis Butterworths, 2005), 311.
8 (1984) ALD 687.
9 Ibid at 699.
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out its functions as the national workplace relations tribunal is greater than any public benefit that may
come from the release of the exempt information.
I have also redacted references to an internal email address which is provided as a contact point for
Commission Members and staff if they require further information or assistance about the Editorial
standards. Again, I consider that the adverse effect on the proper and efficient operations of the
Commission if this internal email address became widely known and became the recipient of emails
from members of the public outweighs the public interest in disclosing this email address. This internal
email address is not publicly known and is only intended for the use of Commission Members and staff
to query aspects of the Editorial standards.
I have determined that the rest of Document 1 should be disclosed, noting that much of the
information it contains is based on the Australian Style Guide which is already in the public domain, and
the release of this information is in accordance with the objects of the FOI Act.
Document 2 – Brand style guide
This document outlines the Commission’s standards that Commission staff and Members are expected
to meet regarding the visual design of Commission documents and email correspondence. I note that
part of the visual design guidelines is model ed on the Australian Government Branding Guidelines that
outlines how the Australian Coat of Arms is to be displayed. The Australian Government Branding
Guidelines can be downloaded from the Department of Prime Minister and Cabinet website.10
Like my reasoning in relation to the Commission’s Editorial standards document, I have decided to
redact information under section 47E that explains and instructs how to create Commission documents
and correspondence. Again, I consider the public interest in maintaining and protecting the integrity of
legitimate Commission documents so that fraudulent documents cannot be created, outweighs the
public interest in disclosing this information.
I have again redacted an internal email address that Commission Members and staff can use to seek
assistance in the use of the guide, for the same reasons as I explained above in relation to Document 1.
The email address is not widely known and is intended for internal use only. The release of this
information in response to an FOI request may result in a substantial adverse effect on the
Commission’s operations if that email address became widely known and became the recipient of
emails from members of the public.
Amongst the images in Document 2 that I have decided to redact under section 47E(d) is an image of
the Commission’s eSignature block, to limit the likelihood of the eSignature block being copied and
used to commit fraud. The image of the eSignature block could be used as a template that could be
recreated to assist with the perpetration of a phishing emails by an individual pretending to be
someone who worked for the Commission. Phishing emails are used by cyber criminals to trick others
into giving them personal information. Fraudulent emails are sent from a large organisation to try and
steal personal information. Phishing can result in the loss of information, money or identity theft.11
The release of the Commission’s eSignature block via your FOI request may cause substantial loss or
damage if used by someone who is intent on committing a scam were to have access to this
information.
10 Australian Government Branding
11 Australian Signals Directorate – phishing – learn about phishing attacks and know what to do if you’ve been
targeted.
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It is on that basis that the information referenced above is conditional y exempt under section 47E(d) of
the FOI Act.
Section 11A(5) (public interest factors)
I have already stated the principles associated with the public interest factors in the discussion above.
The disclosure of the exempt information in Document 2 may promote the objects of the FOI Act.
However, the disclosure of the exempt information in Document 2:
may undermine the administration of the Commission’s functions by creating the risk of
individuals using the information to commit fraud,
could reasonably undermine public confidence in the Commission if individuals were to use the
information to commit fraud, and
could reasonably be expected to serve no public purpose.
I have not considered the irrelevant factors as listed in section 11B(4) of the FOI Act.
The nature and number of public interest factors against the disclosure of the exempt information in
Document 2 outweigh the public interest factors in favour of disclosure. It is on that basis that the
disclosure of the exempt information in Document 2, on balance, is contrary to the public interest, and
supports my decision to redact that information in the document provided to you.
Rights of review
If you disagree with my decision, you have the right to apply for an internal review of my decision by
the Commission. Any request for internal review must be made to the Commission within 30 days of
being notified of my decision. The internal review wil be conducted by an officer other than myself (as
the original decision-maker), and the Commission must make a review decision within 30 days.
Applications for internal review can be sent by email to xxx@xxx.xxx.xx or by mail to GPO Box 1994
Melbourne VIC 3001, addressed to The FOI Officer.
Review by the Information Commissioner
Under section 54L of the FOI Act, you can apply to the Information Commissioner for review of my
decision. If you want to apply to the Information Commissioner for review, you must do so in writing
within 60 days after you are notified of my decision. More information in relation to this can be found
on the Information Commissioner website.
How to make a complaint
You can complain to the Information Commissioner about action taken by the Commission in relation to
your FOI request. Enquires to the Information Commissioner can be made by telephone (1300 363 992)
or online via an Enquiry Form.
Yours sincerely,
Jane
FOI Delegate
Fair Work Commission
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