Confidentiality and Suppression Orders in Employment Law Matters

From bullying and sexual harassment allegations against executives, to disclosure of highly sensitive business information, to large-scale underpayment allegations, employment cases can make for good media. Unsurprisingly, employers facing such allegations often ask if the allegations or the details surrounding the case can be kept confidential.

This article explains when details of employment law matters in both the Fair Work Commission and the Federal Court can be kept confidential (via confidentiality, suppression orders and non-publication orders), highlights recent cases in the courts, and outlines key considerations for employers.

Open justice

Historically, given the principle of open justice, there are few limits on third parties accessing court documents, publicising allegations and reporting on details of employment matters. In general terms:

1. obtaining orders like suppression and non-publication orders in Federal Court matters can be difficult and is not straightforward [1];

   
   

2. similar orders for matters in the Fair Work Commission are also subject to rules and constraints under the Fair Work Act 2009 (Cth). Albeit, as we shall see, the Commission has fewer constraints on the types of order and grounds for granting an order than the Federal Court.

The Federal Court is, of course, also accessible to and observable by members of the public and the media. Indeed, the Federal Court now live streams on YouTube its’ higher-profile hearings [2].

All of this means media outlets and journalists can routinely access court documents, enabling stories on employment litigation to be a prominent (and often interesting) part of the news cycle.

Federal Court - suppression orders and non-publication orders in employment law

There are two main types of orders that restrict access to or disclosure of information, connected with proceedings before the Court.

A non-publication order prohibits or restricts the publication of information connected with proceedings [3]. In practical terms, the order prevents media outlets and the public from publishing specified or certain information. The information itself may still be known to the parties and their legal representatives and referred to in court. What is restricted is its dissemination via publication to a wider audience. A common example is an order that a party's identity not be published in media reporting of the proceedings.

A suppression order goes further. It prohibits or restricts disclosure of certain information connected with proceedings. That information is not just shielded from public reporting and dissemination; but access to the information itself is restricted. A suppression order may, for instance, prevent a party from disclosing certain material or restrict who may access particular evidence [4].

In terms of applying for an order, the Court, one of the parties to the proceeding or “any other person considered by the Court to have a sufficient interest in the making of the order” can apply [5].

Importantly, as well as the parties to the proceedings, the following can also appear and be heard on an application for a suppression or non-publication order:

1. the Commonwealth or a State or Territory;

   
   

2. a news publisher;

   
   

3. any other person who, in the Court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made [6].

In deciding whether or not to make a suppression order or non-publication order, the Court: 

“must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice” [7].

Finally, a Court may only make a suppression or non‑publication order where satisfied it is necessary for one of the following grounds:

1. preventing prejudice to the proper administration of justice,

   
   

2. protecting national security interests,

   
   

3. protecting a person’s safety, or

   
   

4. avoiding undue distress or embarrassment to a party or witnesses in a criminal proceeding involving a sexual offence matter [8].

   
   

Fair Work Commission – Confidential evidence in hearings

FWC hearings must be held in public, unless the FWC:

“is satisfied that it is desirable… …because of the confidential nature of any evidence, or for any other reason” [9].

Unlike the Federal Court, the Fair Work Act provides the Commission with a much broader discretion, and few explicit procedural limits (e.g. on who can seek an order). If the FWC does decide to make an order, it also has broad powers to make a wide variety of orders, including:

1. that all or part of the hearing is held in private; 

   
   

2. about who may be present;

   
   

3. prohibiting or restricting the publication of the names and addresses of persons at the hearing;

   
   

4. prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing;

   
   

5. evidence given in the hearing; and

   
   

6. matters contained in documents before the FWC.

   
   

Recent developments

In two recent Federal Court employment matters: Saw v Seven Network (Operations) Ltd [2024] FCA and Neve v LVMH Perfume & Cosmetics Group Pty Ltd [2026] FCA, the Court granted temporary suppression orders lasting until the ‘mediation’ phase of the proceedings.  

The courts’ reasoning in these cases was that:

1. confidentiality at the mediation stage supports its overarching aim of efficiently resolving disputes; and

   
   

2. by keeping court documents confidential, employers can negotiate without reputational damage, which the court considered conducive to settlement [10].

While a successful mediation avoids preparing for and going to a final hearing, mediations in Federal Court matters are still usually weeks, if not months, after proceedings are issued. In practical terms this meant a reasonable amount of the details on these two cases was not available to the public (or media) until a significant part of those matters had been conducted. 

These two cases may provide some potentially useful arguments for employers in similar circumstances and perhaps reflect a growing judicial willingness to grant temporary orders in employment matters, where doing so could facilitate early settlement.

However, this is not the end of the matter. In the case of Sharma v Northern Territory of Australia [2026] FCA, the Court, while acknowledging that early settlement is a key component of the administration of justice, noted a balance has to be struck between facilitating open justice and promoting timely settlement of cases. In this case, the Court declined to grant the order and reiterated that safeguarding the public’s interest in open justice, remains a primary objective of the proper administration of justice.

Should an employer seek an order?

For employers, the strategic use of confidentiality, suppression or non-publication orders may be a serious option worth considering:

1. For reputational protection: suppression can prevent sensitive allegations from becoming public prematurely, and before a considered response is prepared;

   
   

2. To protect sensitive, confidential or valuable business information; and

   
   

3. To facilitate early settlement: confidentiality of allegations, at least for a time, may encourage more open negotiation and the likelihood of early resolution.

However, an application for an order carries risks that employers should consider carefully:

1. an application for an order is not granted lightly, whether in the FWC (despite its broader discretion and wider powers) or the Federal Court. If an application fails, it may for example generate more publicity than there otherwise may have been.

   
   

2. Other parties who may not otherwise have been (as) interested may become (very) interested and, as noted, they can apply to appear and be heard (e.g. media outlets) in the Federal Court.

   
   

3. “To prevent the prejudice to the proper administration of justice” is probably the most relevant / broadest ground worth considering for employers in Federal Court matters. However, to succeed, on this ground, an employer will need to demonstrate the suppression or non-publication would facilitate, say mediation or early resolution, give specific reasons as to how the order would aid that outcome, and articulate why that outweighs open justice in their particular case. The Court will need clear reasons why the proper administration of justice would be prejudiced if an order were not granted.

   
   

CONTACT US

If you would like to know more about the issues raised in this article, or wish to discuss any employment law issues, please contact:

Mark Flaherty  +61 423 576 052

Grace Brunton-Makeham  +61 424 839 981

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This is commentary published by Makeham Flaherty for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories.

Makeham Flaherty 2026.

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[1] under Part VAA of the Federal Court of Australia Act 1976.

[2] Despite this, in February 2023, the Federal Court introduced rules that limited the ability of non‑parties (including media outlets and journalists) to access the court documents until after the first ‘directions hearing’.  To access documents before this point non‑parties need to now obtain leave from the Court.  This change drew criticism from media organisations, who argued it undermined transparency and the core principle of open justice.

[3] Under s37AA of the Federal Court of Australia Act 1976 a "non-publication order" means an order that prohibits or restricts the publication of information (but it does not otherwise prohibit or restrict the disclosure of information).

[4] Under s37AA of the Act, a “suppression order" means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

[5] s.37AH(1).

[6] s37AH(2).

[7] s.37AE.

[8] s.37AG(1).

[9] Orders can be sought and made under ss593 and 594 of the Fair Work Act 2009 (Cth).

[10] In Saw, the Court granted a suppression order preventing the publication of documents until after mediation, accepting that confidentiality would enhance the mediation’s effectiveness and support timely dispute resolution. The same judge reaffirmed this approach in Neve.