1
[2013] FWC 4034
DECISION
Fair Work Act 2009
s.739—Dispute resolution
Metro Trains Melbourne Pty Ltd
v
Australian Rail, Tram and Bus Industry Union; Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia; Association of Professional Engineers,
Scientists and Managers, Australia
(C2013/2920)
COMMISSIONER BISSETT MELBOURNE, 24 JUNE 2013
Alleged dispute concerning rosters in the Infrastructure Division – application for
disqualification for apprehended bias – principles considered – application dismissed.
[1] On 1 February 2013 Metro Trains Melbourne Pty Ltd (Metro Trains) made an
application to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act)
involving the Australian Rail, Tram and Bus Industry Union (RTBU), the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU) and The Association of Professional Engineers, Scientists and Managers,
Australia (APESMA) (collectively the Unions). The dispute arises under the Metro Trains
Infrastructure Agreement 2012 (the Agreement).
[2] The Agreement provides a process for the development of new rosters. This is set out
in Schedule One of the Agreement.
SCHEDULE ONE - WORK ARRANGEMENTS/ROSTERS
Metro Trains and the Unions will endeavour, through this process, to have agreed
rosters finalised by 21 December 2012, to commence in January 2013 to support
timetable changes and business requirements. Any future/further roster changes or
changes to work arrangements will be made in accordance with the following
principles/steps.
Changes to work arrangements/rosters will only occur after steps one, two, four and
three, if needed, have been adhered to.
Step One: The Company will notify work groups and their representatives when it
proposes to make a work arrangement/roster change, including the reasons for the
work arrangement/roster change.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 4034
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Step Two: Within one (1) week of the notification above, a meeting will be scheduled
between the Company and nominated Employee representatives to discuss feedback
and options. Work arrangement/roster changes will be determined by agreement of the
majority of effected Employees and that agreement will not be unreasonably withheld.
The following principles will apply in determining whether agreement can be reached:
Rosters will be discussed with the Employees.
Outcomes must meet business requirements.
Impact of the change on an individual’s remuneration.
Work/life balance considerations.
Fatigue requirements must be factored into any work arrangement/roster outcome.
Step Three: If no agreement can be reached, the Company or the Employees and/or
their representatives may progress the matter to Fair Work Australia under the Dispute
Resolution procedures contained within this Agreement (clause 10).
Step Four: New rosters will initially be filled on a volunteer basis. Where there are
insufficient volunteers to work new rosters the Company is entitled to populate any
roster vacancies from remaining Employees by providing notice to these Employees in
accordance with the shift change provision· of this Agreement (clause 20.2).
[3] Metro Trains undertook discussions and consultations with two groups of employees –
‘Track’ and ‘Signals’ – in accordance with Schedule One but was unable to reach agreement
with either group on proposed rosters. Pay increases that were subject to agreement on the
new rosters were therefore not paid to employees. It subsequently notified a dispute to the
Commission on this issue.
[4] The matters in dispute for both Track and Signals were subject to conciliation before
me on 12 February, 22 March and 17 April 2013.
[5] On 26 April 2013 Metro Trains wrote to the Commission and advised that it had been
unable to find any resolution with the parties to the dispute as it relates to the Signals roster
and asked that the Commission conclude that conciliation with respect to the Signals roster
was at an end and refer that part of the dispute to arbitration.
[6] I subsequently listed that matter for mention on 8 May 2013 (the Signals dispute).
[7] On 6 May 2013 Mr Bakri for the Unions wrote and requested that I recuse myself
from conducting the arbitration on the Signals dispute. That letter said:
During the above conciliation processes, the views of potential witnesses, the parties
and Commissioner Bissett were explored and discussed. In these circumstances, the
Unions believe it would be inappropriate for Commissioner Bissett to conduct the
arbitration because there is at the very least, an apprehension of prejudgement/bias.
[2013] FWC 4034
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[8] Mr Bakri sought an opportunity to make submissions on the application. This
application was subsequently listed for mention on 8 May 2013 and for hearing on 31 May
2013.
[9] The Unions provided written submissions and an affidavit of Ms Rima Tawil, an
industrial legal officer with the RTBU. Attached to Ms Tawil’s affidavit was a copy of her
handwritten notes from that part of the conciliation conference conducted with the Unions
along with her typed transcription of those notes. Mr Geoffrey Borenstein of the CEPU also
provided an affidavit.
[10] Metro Trains provided a written submission.
[11] More detailed extracts of Ms Tawil’s notes from the conciliation conference were
provided on my request after the hearing and Unions provided additional submissions in
response to this material on 7 June 2013 and Metro Trains were given an opportunity to
provide reply submissions by 11 June 2013.
[12] This decision deals with the application that I step aside from dealing with the Signals
dispute.
[13] The Unions and Metro Trains were represented in the recusal application with
permission.
Submissions
The Unions
[14] On the basis of the affidavits filed the Unions submit that I made a number of
statements ‘in definite language [that] were directed at the facts and issues that will require
decision in arbitration’.1 These comments were made when only the Unions were present in
conciliation.
[15] In particular the Unions submit that during conciliation, in response to a comment by a
delegate that 24 hours a day 7 day a week (24/7) coverage was accommodated through
Monday to Friday ordinary hours and weekend overtime I said:
‘will not get out of this with a Mon - Fri roster and overtime on weekends’
[16] In addition they say I said:
‘operational requirements of the business should be met through ordinary hours, not
overtime’
[17] On the basis of these statements the Unions submit that the hypothetical observer may
apprehend that I might not bring an impartial and unprejudiced mind to the arbitration of the
matter.
[18] The Unions submit that a comment by me to them during conciliation that ‘not going
to win argument this is how we have done it so this is how we should keep doing it – on that
[2013] FWC 4034
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basis nothing happens’ has the appearance of pre-judgement of the issue. The statement, it is
submitted, is unqualified and conclusive.
[19] The Unions also submit that a comment by me, in response to a delegate’s comment
that the Applicant did not require 24/7 coverage, that ‘arbitrate – on whether or not there are
good business reasons – I will not’ may be taken by reasonable hypothetical observer to mean
that I would refuse to arbitrate on the issue. The Unions submit that this statement suggest a
level of impartiality and prejudgement on my part on a key factor to be considered in
determining rosters.
[20] The Unions submit that the test to be applied is an objective test based on how what
has been said would appear to a fair minded reasonable observer. They submit that the
possibility that such an observer could reasonably conclude that I had reached ‘definitive
positions’ and that ‘accordingly the dispute would not be assessed on the evidence and its
merits’.2
Metro Trains
[21] Metro Trains notes that it was not present at the times I am said to have made the
statements complained of by the Unions. Even if I did make the statements, Metro Trains
submits that what must be firmly established is a fear that my mind is so prejudiced in favour
of a conclusion already formed that I will not alter this conclusion irrespective of the evidence
presented at hearing.
[22] Metro Trains submits that the expression of an opinion, even during conciliation, is
not sufficient to give rise to an apprehension of bias in the mind of a fair minder observer.
[23] Metro Trains submits that in the circumstances of this case it cannot be said that a fair-
minded reasonable bystander could have a reasonable fear that I would bring an unfair or
prejudiced mind to the inquiry of the matter in dispute because of the opinion I expressed.
Legal principals
[24] In Ebner v Official Trustee in Bankruptcy the High Court held that:
The apprehension of bias principle admits of the possibility of human frailty. Its
application is as diverse as human frailty. Its application requires two steps. First, it
requires the identification of what it is said might lead a judge (or juror) to decide a
case other than on its legal and factual merits. The second step is no less important.
There must be an articulation of the logical connection between the matter and the
feared deviation from the course of deciding the case on its merits. The bare assertion
that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will
be of no assistance until the nature of the interest, and the asserted connection with the
possibility of departure from impartial decision making, is articulated. Only then can
the reasonableness of the asserted apprehension of bias be assessed.3
[25] In Oram v Derby Gem Pty Ltd a Full Bench of the Australian Industrial Relations
Commission considered the principles relevant to an application such as this:
[2013] FWC 4034
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[107] The test to be applied in Australia in determining whether a judicial officer is
disqualified by reason of the appearance of bias is whether a fair-minded lay observer
might reasonably apprehend that the judge might not bring an impartial and
unprejudiced mind to the resolution of the question the judge is required to decide.4 In
Laws v Australian Broadcasting Tribunal5 Gaudron and McHugh JJ noted:6
When suspected prejudgment of an issue is relied upon to ground the
disqualification of a decision-maker, what must be firmly established is a
reasonable fear that the decision-maker’s mind is so prejudiced in favour of a
conclusion irrespective of the evidence or arguments presented to him or her.
[108] The relevant ground for disqualification is a reasonable apprehension that the
judicial officer will not decide the case impartially and without prejudice, rather than
that he or she will decide the case adversely to one party.7 Mere predisposition or
inclination for or against a particular argument or conclusion is not sufficient. In The
Minister for Immigration and Multicultural Affairs v Jia8 Gleeson CJ and Gummow J,
with whom Hayne J agreed, said9:
Decision makers, including judicial decision makers, sometimes approach their
task with a tendency of mind or predisposition, sometimes one that has been
publicly expressed, without being accused or suspected of bias. The question is
not whether a decision-maker’s mind is blank; it is whether it is open to
persuasion. The fact that, in the case of judges, it may be easier to persuade one
judge of a proposition than it is to persuade another does not mean that either
of them is affected by bias.
The test which was applied both by French J and by the Full Court was
orthodox. It accords with the decisions of this court in Laws v Australian
Broadcasting Tribunal and Johnson v Johnson. The state of mind described as
bias in the form of prejudgment is one so committed to a conclusion already
formed as to be incapable of alteration, whatever evidence or arguments may
be presented. Natural justice does not require the absence of any predisposition
or inclination for or against an argument or conclusion.
[109] Moreover, judicial officers have a duty not to accede too readily to a
disqualification application In Re J.R.L ex parte C.J.L10, Mason J, in an oft-quoted
passage, stated:
[...]
In cases of this kind, disqualification is only made out by showing that there is
a reasonable apprehension of bias by reason of prejudgment and this must be
“firmly established”: Reg v Commonwealth Conciliation and Arbitration
Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw.
Although it is important that justice must be seen to be done, it is equally
important that judicial officers discharge their duty to sit and do not, by
acceding too readily to suggestions of appearance of bias, encourage parties to
believe that by seeking the disqualification of a judge, they will have their case
tried by someone thought to be more likely to decide the case in their favour.”
[2013] FWC 4034
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(footnotes omitted)
[110] Far from being inappropriate, the expression of a provisional view on a
particular issue or warning parties of the consequences of a provisional view will
typically be entirely consistent with the requirements of procedural fairness. In
Johnson v Johnson11 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted:12
Whilst the fictional observer, by reference to whom the test is formulated, is
not to be assumed to have a detailed knowledge of the law, or of the character
or ability of a particular judge, the reasonableness of any suggested
apprehension of bias is to be considered in the context of ordinary judicial
practice. The rules and conventions governing such practice are not frozen in
time. They develop to take account of the exigencies of modern litigation. At
the trial level, modern judges, responding to a need for more active case
management, intervene in the conduct of cases to an extent that may surprise a
person who came to court expecting a judge to remain, until the moment of
pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly
Brennan, Deane and Gaudron JJ, referring both to trial and appellate
proceedings, spoke of “the dialogue between Bench and Bar which is so
helpful in the identification of real issues and real problems in a particular
case.” Judges, at trial or appellate level, who, in exchanges with counsel,
express tentative views which reflect a certain tendency of mind, are not on
that account alone to be taken to indicate prejudgment. Judges are not expected
to wait until the end of a case before they start thinking about the issues, or to
sit mute while evidence is advanced and arguments are presented. On the
contrary, they will often form tentative opinions on matters in issue, and
counsel are usually assisted by hearing those opinions, and being given an
opportunity to deal with them.
(footnotes omitted)
[111] In Kaycliff Pty Limited v Australia Broadcasting Tribunal,13 the Full Court of
the Federal Court observed: 14
For our part we respectfully concur in the view that expression by a court or
tribunal of its current view of an issue may be advantageous, on occasions,
rather than otherwise. The rules as to apparent bias must be balanced against
the desirability of a thoroughly fair contest and the latter may positively favour
a disclosure, without any equivocation, of an opinion held by the court or
tribunal at a particular stage of the proceedings. In the absence of such
disclosure, there may be a justified resentment on the losing side, based on
their not having been made aware of the direction of the thinking of the court
or tribunal on a particular issue and not having been given a fair opportunity to
turn it into another path.
[112] In Richmond River Broadcasters Pty Limited v The Australian Broadcasting
Tribunal15, Wilcox J referred to this passage and continued:
I respectfully agree with this comment. It is an every day event for judges to
indicate to counsel, during the course of hearing, their impressions of a case,
[2013] FWC 4034
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including their impressions of witnesses and of the facts. They do so to assist
counsel. It is always an advantage for counsel to know the way in which the
judge’s mind is working; submissions may be targeted to the aspect of the case
which is troubling the judge. Where a judge takes this course nobody would
suggest that the judge ought then to be disqualified from concluding the case.
The reason is that the judge is merely expressing a tentative view and inviting a
response which he or she may take into account in determining whether to
adhere to, or abandon, that view in the final decision. The readiness to listen
and be persuaded is the critical matter.16
[26] In Laws v Australian Broadcasting Tribunal, the matter for consideration was if
members of a tribunal should be disqualified for bias. In considering the attributes of the ‘fair
minded observer’, the High Court held:
[T]he rules of natural justice would only require their disqualification if a reasonable
bystander would entertain a reasonable fear that they were incapable of bringing fair
and unprejudiced minds to the inquiry: Reg. v. Watson; Ex parte Armstrong; Livesey v.
New South Wales Bar Association. A reasonable bystander does not entertain a
reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an
inquiry merely because he has formed a conclusion about an issue involved in the
inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne
Stevedoring Co. Pty. Ltd.; Reg. v. Commonwealth Conciliation and Arbitration
Commission; Ex parte Angliss Group; Re Shaw; Ex parte Shaw.
When suspected prejudgment of an issue is relied upon to ground the disqualification
of a decision-maker, what must be firmly established is a reasonable fear that the
decision-maker’s mind is so prejudiced in favour of a conclusion already formed that
he or she will not alter that conclusion irrespective of the evidence or arguments
presented to him or her.17
[27] The principle, in the context of the Commission, is articulated in Viavattene v Health
Care Australia where the Full Bench of the Fair Work Commission said:
[21] The impartiality of the Commission is central to a fair hearing. Bias, whether
actual or apprehended, connotes the absence of impartiality. Applied to Commission
members the governing principle is that a member is disqualified if a fair minded
observer might reasonably apprehend that the member might not bring an impartial
mind to the resolution of the question that the member is required to decide. The
principle gives effect to the requirement that justice should both be done and be seen
to be done.18
(footnotes omitted)
Consideration of the issues
[28] In this matter the Unions suggest that a fair minded observer may conclude, on the
basis of statements I made, that I have pre-judged the matter to be decided in arbitration.
[2013] FWC 4034
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[29] The Agreement under which the dispute was initially notified contains a process to be
followed when a roster change cannot be agreed. That process sets out the considerations for
determining whether an agreement has been unreasonably withheld.19
[30] The process of dealing with this dispute in the Commission, and hence the context
within which the statements were made, is predicated on conciliation followed by arbitration.
Conciliation is not necessarily a passive exercise for a presiding member but may be used to
ensure that each party is aware of the other party’s view and the issues that may well need to
be confronted in finding a resolution to issues. To outline the issues to be confronted does not
mean that a decided position of the decision maker has been reached.
[31] The Unions contend that during the conciliations statements made by me demonstrated
a bias, or at least an apprehension of bias, that this bias goes to the matter that is to be
determined and that it would be appropriate in such circumstances to recuse myself.
[32] As stated in the cases above, bias ‘connotes the absence of impartiality’.20 What
constitutes impartiality is more than predilections. It requires that the decision-maker’s mind
is so made up or determined in favour of one conclusion, irrespective of the arguments put to
him or her.21
[33] For the case to be proven for the recusal, the two step test in Ebner must be met. The
first step ‘requires the identification of what it is said might lead a judge (or juror) to decide a
case other than on its legal and factual merits.’ 22 If this step is not present there can be no
case for recusal.
[34] The unions have identified the statements made during the conciliation as recorded by
Ms Tawil and attested by her and Mr G Borenstein as proof that there is an apprehension that
I will determine the case on something other than the facts and merits. These statements were
provided along with select sections of the Ms Tawil’s handwritten notes and a typed
transcription of them. Neither Ms Tawil nor Mr G Borenstein gave oral evidence. Upon
request a larger extract of the Ms Tawil’s notes was provided. No other evidence is before the
Commission as to what took place in the conciliation. As such, the statements and their
context must be considered in some detail.
[35] The question to be determined is whether these statements plausibly indentify, to the
fair minded observer, that I might decide the case on something other than the legal facts and
merits.
Evidence
[36] The notes of Ms Tawil taken during the conciliation are no more than her notes of the
meeting. They are not minutes of conciliation. In a number of places they do not indicate who
is speaking (including comments attributed to me) or whether the notes reflect statements
made by those at the conciliation or are her observations or thoughts on matters.
[37] The complaint of the Unions is that I made a number of statements in conciliation and
that these were made emphatically, suggesting I have already decided the matter. Despite
accepting that the notes are not a transcription, Mr H Borenstein, in submissions, says that the
‘statements are made in definite terms’.23 The Unions say that the statements complained of
go to the heart of the matters in dispute.
[2013] FWC 4034
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[38] Ms Tawil’s handwritten notes, on pages 4, 5 and 6 attached to her affidavit (although
the pages are not numbered), are the notes relevant to these proceedings. Those notes, on my
reading of them, appear to state (with notations in square brackets my additions or an
indication of where I do not consider the notes are clear):
[Statement 1] * will not get out of this with a Mon-Fri roster and overtime on
weekends
* what are the [?] imperatives
- 24 hours coverage for reactive work
- having 24/7 coverage for reactive work that is required
* planned maintenance at safest and most efficient time
* track maintenance at midday not most accessible day[?]
- planned maintenance at efficient
[Statement 2] * operational management requirements of the business should be met
through ordinary hours not overtime
- [?] to be met by weekend
* 24/7 reactive for last 50 years
[Statement 3] CB - not going to win argument this is how we have done it so this is
how we should keep doing it - on that basis nothing happens
CB - covering 24/7 - but not covering it through ordinary hours
YB: employee
Part of the reason they do not have the staff
Argument re: fatigue management [?] can be
[not readable]
[Statement 4] * arbitrate - on whether or not there are good business reasons I will [?]
2 options
(1) negotiate and get the best roster at the best price
(2) not negotiate - not the best option
[39] There is no issue that ‘CB’ where it is used in the notes is a reference to Commissioner
Bissett.
[40] In at least one place (marked by me as statement 4) I do not agree that the transcription
of the notes provided by Ms Tawil is necessarily accurate. This is discussed in detail below.
Further, I am also not convinced that the transcription of the word ‘the’ in the sentence after
statement 1 is necessarily accurately transcribed.
[2013] FWC 4034
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[41] The issue for me to decide here is not whether I think I could properly decide the
matters but how a fair minded observer might apprehend I would approach the issues given
the notes and the circumstances of the conciliation.
Statements 1, 2 and 3
[42] The Unions assert that I made each of statements 1 and 2. I agree that in all likelihood
I did. On the basis of Ms Tawil’s notation I accept that I made statement 3. However, given
the non-attribution of a number of the statements surrounding statements 1, 2 and 3 it is
possible I made a number of these statements as well (although I accept not all of them).
These non-attributed statements provide context for the statements which the Unions
complain of that is otherwise missing from the affidavit of Ms Tawil and the submissions of
the Unions.
[43] Even if I did make each of statements 1, 2 and 3 the remaining statements must, for
the purpose of this application, be considered as part of the context of the total discussion that
occurred at the time.
[44] I am satisfied that I made statement 1. The sentence that follows the statement, has
been transcribed by Ms Tawil as ‘What are the imperatives’. In the handwritten notes, ‘the’
could actually be ‘their’. This would make more sense and put statement 1 in context. ‘What
are their imperatives’ suggests statement 1 is made in the context of considering the
employer’s imperatives. Statement 1 in this light is simply a statement of what is driving the
employer in their approach to the matter as opposed to a definitive statement of some
predetermined position by me. Even if the word is correctly transcribed as ‘the’ it is evident
on a plain reading of the statements that the imperatives being discussed are those of Metro
Trains such that statement 1 would not be understood as a predetermined position by me.
[45] Statement 2, contextualised by the statement before it with respect to when planned
track maintenance might occur, is no longer a definitive position being expressed by me. It
also reflects comments made by Metro Trains in the joint conciliation that it was looking to
meet its operational requirements through a 24 hour roster.24
[46] Statement 3 needs to be considered in the context of the statement made immediately
before: that there has been 24/7 coverage of reactive maintenance work for the last 50 years
(as I recall this was said in support of ordinary hours Monday to Friday and overtime on
weekends as has existed to date). My statement 3 can be seen as a comment that a more
developed argument than ‘this is how we have always done it’ was going to be required to
respond to what Metro Trains might put forward.
[47] When the surrounding statements are considered for each of statements 1-3 a fair
minded observer would be unlikely to conclude that I had reached a definitive position on the
issues nor that I would not be able to assess the dispute on its merits.
Statement 4
[48] As to statement 4 of which the Unions complain (‘arbitrate – on whether or not there
are good business reasons – I will not’ as transcribed by Ms Tawil), this is not a statement that
I have any recollection of making and, in any event, it is not a statement that makes any
grammatical sense.
[2013] FWC 4034
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[49] A consideration of the handwritten notes attached to Ms Tawil’s affidavit suggest that
the typed version of the note relied on in the affidavit is not correctly transcribed. The hand
written notes suggest that what was written was ‘arbitrate on whether or not there are good
business reasons. I will [?]’ with the last word indecipherable. It cannot be determined with
any certainty that the word is ‘not’ as suggested by the Unions. The writing suggests that it is
not a complete sentence leaving open the possibility that in taking notes Ms Tawil did not
take down all that was said.
[50] On the basis of a reasonable question as to what the notes say compared to how they
have been transcribed, the lack of grammatical sense in the statement and my lack of
recollection that it is a statement I made lead me to conclude in all probability that I did not
make the fourth statement as submitted by the Unions. The fair minded observer would be
unlikely to come to the position that the statement suggests bias; rather objectively viewed the
statement would be disregarded as being both incomprehensible and unverifiable.
Other considerations
[51] Whilst no comment is made of it in the Unions’ submission I note that Ms Tawil’s
affidavit also notes that I made a statement that ‘on the basis that there is recognition that the
end of the process they will call it on to arbitration and that is not going to be the best
outcome.’ Again, this is a statement that must be considered in the context of conciliation,
that conciliation was being used to encourage and assist the parties come to some resolution
of the issues in dispute, and an acknowledgement that the best outcome would be one that is
negotiated directly between the parties and not one where an arbitrated outcome is imposed
on the parties. This reflects the well accepted norm that parties will achieve a better outcome
where it is one they have negotiated and agreed to than one where a third party intervenes and
imposes some outcome.
[52] Whilst much has been written and said of the characteristics of the fair minded
observer I take that this person would have access to more than just the statements
complained of by the Unions that I am said to have made in coming to his or her conclusion –
that is the fair minded observer would have knowledge of the context within which the
comments were made. They were made during conciliation proceedings which are an integral
part of the Commission dealing with a dispute, were part of a broad ranging exchange and
exist in the context of an Agreement which establishes a mechanism for roster changes to be
agreed or otherwise be subject to the dispute resolution proceedings. Further, the statements
were made in the context of encouraging the unions to try to find a negotiated outcome to the
matters in dispute and an assessment of the key issues confronting them in such negotiations.
[53] Given the informal nature of the notes relied on by the Unions, to describe the
statements as being made in ‘definite terms’ appears inaccurate. This is a point of difference
from the Full Bench decision in Commonwealth Bank of Australia v Heap, where a statement
misheard in conference was repeated by Drake SDP on transcript during a hearing.25 No such
clear statements exist here. The imprecise nature of the notes and the need to consider them in
the context of the conference, where frank discussions should occur, means that they cannot
objectively be seen as definite statements of my position on the matter. More accurately, the
context of the statements suggest not my position, but the position of Metro Trains, as being
put to the Unions so that the issues in dispute could be fully understood.
[2013] FWC 4034
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[54] In their initial letter in which they sought my recusal the Unions stated that the views
of ‘potential witnesses, the parties and Commissioner Bissett were explored and discussed’
and that in these circumstances it was inappropriate that I conduct the arbitration. I accept that
the comments they say were made by me are the extent of the matters they raise as to why I
should recuse myself.
Conclusion
[55] I have considered the matters raised in this application very carefully. That justice is
done and appears to be done is a fundamental principle not to be put aside for mere
convenience.
[56] Having expressed a view, albeit based on what Metro Trains said in conciliation and
what is contained in the Agreement, as to what I thought would be necessary considerations in
seeking to negotiate an outcome cannot, in the context of conciliation proceedings in this
Commission, establish a reasonable belief in the mind of the fair minded observer that I have
pre-judged the matter at issue. The consideration by the fair minded observer must also put
the statements made into the context of the totality of the discussions.
[57] The first consideration of Ebner, the identification of what may lead a decision-maker
to determine the matter other than on its merits has not been identified. It has not, in my
opinion, been firmly established that there could be a reasonable fear that my mind is so
prejudiced that I will not decide the matters based on the evidence such that there are grounds
for disqualification.
[58] I am sensitive to the comments of the Full Bench of the Commission in Viavattene. I
am not convinced that there is, in the circumstances of this matter, grounds for a finding a
reasonable apprehension of bias.
[59] The application that I recuse myself and not further deal with the matter is dismissed.
COMMISSIONER
Appearances:
H. Borenstein of Counsel with M. Harding for the Unions.
S. Millen for Metro Trains.
Hearing details:
2013.
Melbourne:
31 May.
NORK OMMISSION OF FAIR WORK F THE SEAL
[2013] FWC 4034
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1 Applicant’s Submission, 17 May 2013, paragraph 9.
2 Applicant’s Submission, 17 May 2013, paragraph 21.
3 (2000) 205 CLR 337.
4 Johnson v Johnson (2000) 201 CLR 488 at para [11]; Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at
293-294; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
5 (1990) 170 CLR 70.
6 (1990) 170 CLR 70 at 100.
7 Re J.R.L ex parte C.J.L (1986) 161 CLR 342 at 352.
8 (2001) 178 ALR 421.
9 (2001) 178 ALR 421 at 438.
10 (1986) 161 CLR 342.
11 (2000) 201 CLR 488.
12 (2000) 201 CLR 488 at [13].
13 (1989) 90 ALR 310.
14 (1989) 90 ALR 310 at 302.
15 (1992) 34 FCR 385 at 395.
16 (2004) 134 IR 379 at 420-422.
17 (1990) 170 CLR 70.
18 [2013] FWAFB 2532 per Ross P, Drake SDP and Asbury C.
19 I do note that there are some jurisdictional matters to be resolved with respect to the arbitration. This is not a concluded
view as to such matters.
20 Viavattene v Health Care Australia [2013] FWCFB 2532 [21].
21 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
22 (2000) 205 CLR 337.
23 Transcript PN112 and 114. The statements are also referred to being ‘definite terms’ in the Applicant’s Submission, in
paragraphs 9, 21.
24 See page 3 of handwritten notes of joint conciliation provided by Unions on 4 June 2013.
25 (2002) 117 IR 28 at 30, [10].
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