Fair Work Commission Recognises Confidentiality in Advice Provided by HR Experts’ Michael Alkan

Two decisions of the Fair Work Commission have highlighted important considerations around whether industrial relations consultants can be compelled to disclose their confidential communications with clients.

The case involved Michael Alkan, principal of HR Experts, who was acting as the paid representative for two former employees of The Traffic Controllers Pty Ltd in unfair dismissal proceedings.

First Decision – The Stay Order ([2019] FWC 8311)
In November 2019, the employer obtained interlocutory orders requiring Mr Alkan to produce:

1. Signed service agreements; and

2. All email correspondence between Mr Alkan and the applicants.

Mr Alkan immediately applied for a stay, arguing that compelling disclosure of such communications would reveal confidential industrial strategy and amounted to a fishing expedition.

On 6 December 2019, Vice President Hatcher granted the stay, focusing heavily on reasoning later repeated by the Full Bench. In paragraph [9] of the stay decision, the Commission stated there were reasonable prospects of success, because:

1. It was arguably an inappropriate exercise of the Commission’s jurisdiction under s.590(2)(c) to force disclosure of advice given by a paid agent to their clients.

2.  An analogue to legal professional privilege could apply in these circumstances.

3.  The request was a fishing expedition lacking specificity about which documents actually existed.

This stay prevented the disputed emails from being produced before the jurisdictional hearing in December 2019.

Second Decision – The Full Bench Appeal ([2020] FWCFB 2969)
After the unfair dismissal claims were dismissed in January 2020 on jurisdictional grounds, Mr Alkan pursued his appeal seeking to permanently set aside the production orders.

In June 2020, the Full Bench (Vice President Hatcher, Deputy President Asbury, and Deputy President Colman) delivered its decision. The Commission repeated and endorsed the analysis in paragraph [9] of the stay decision, agreeing the arguments about the protection of confidential advice and the risk of fishing expeditions were reasonably arguable.

The Full Bench also acknowledged that Mr Alkan’s reliance on section 120 of the Evidence Act 1995 (Cth) was well made insofar as the policy considerations underlying that provision could reasonably inform how the Commission should approach the issue, even though it is not bound by the rules of evidence.

However, the Full Bench ultimately refused permission to appeal, not because the arguments lacked merit, but because the case had no practical utility. The unfair dismissal applications had already been dismissed, no appeal had been lodged against that outcome, and no legal rights remained that could be affected by any further orders.

Significance
These decisions, particularly the consistent reasoning in paragraph [9], cited prominently in both rulings, underscore that:

1. Industrial relations consultants occupy a role requiring careful consideration before ordering production of confidential communications with their clients.

2. Forcing disclosure of such material risks undermining fairness and the integrity of representation, particularly where the application amounts to a fishing expedition rather than a targeted request for clearly identified documents.

For Mr Alkan and HR Experts, the case demonstrates the evolving recognition that confidentiality is essential to effective industrial advocacy, even though the Commission ultimately declined to decide the substantive issue in the absence of a live controversy.