1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
Fair Work Commission
(C2013/7662)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER WILSON MELBOURNE, 28 FEBRUARY 2014
Appeal against decision [2013] FWC 9343 of Senior Deputy President O’Callaghan at
Adelaide on 27 November 2013 in matter number RE2013/1710 - Appeal dismissed.
[1] On 11 November 2013, Senior Deputy President O’Callaghan instituted proceedings
on his own motion, pursuant to s.508 of the Fair Work Act 2009 (the Act) (s.508) in
RE2013/1710. The matter initially concerned entries into sites controlled by Lend Lease Pty
Ltd (Lend Lease) on 30 October 2013 by officials of the South Australian Branch of the
Construction, Forestry, Mining and Energy Union (CFMEU), but was later expanded to
encompass later entries into Lend Lease sites and entry into sites controlled by other
companies.
[2] The Senior Deputy President made three decisions arising out of RE2013/1710:
1. [2013] FWC 9343, a decision of 27 November 2013, dismissing an application
by the CFMEU that he disqualify himself from further pursuing the matter
because of an apprehension of bias arising from statements made in s.418 of
the Act (s.418) proceedings on 31 October 2013, 1 November 2013 and,
subsequently, statements in a decision issued on 1 November 2013 in a s.418
matter;1
2. [2013] FWC 9860, a procedural decision of 16 December 2013, dismissing a
jurisdictional application by the CFMEU that no further action should be taken
in this matter pursuant to s.508 on the basis that, firstly, there is no jurisdiction
to undertake what it described as a preliminary investigation into whether to
initiate action under that section, and that there was no specific proposal to
found such an action; and
3. [2013] FWC 10168, a decision of 23 December 2013, in which the Senior
Deputy President found that the Lend Lease entries represent serious,
deliberate and sustained misuse of entry rights by the CFMEU pursuant to
s.508(1) of the Act and set down further proceedings in respect of action under
[2014] FWCFB 1443
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1443
2
s.508(2) of the Act and relisted the matter in respect of entries to other
premises for further evidence.
[3] The CFMEU appealed each decision - [2013] FWC 9343 in C2013/7662 and the other
two decisions in C2014/2631. Both appeals were heard by the Full Bench on 12 February
2014.
[4] This decision determines the appeal against the decision in [2013] FWC 9343 in
C2013/7662.
[5] A decision in relation to the appeals against the decisions in [2013] FWC 9860 and
[2013] FWC 10168 in C2014/2631 will be separately published at a later time.
Background to the appeal
[6] The background to the appeal concerns the origin of the initiation of the s.508
proceedings by Senior Deputy President O’Callaghan.
[7] That background commences with a 30 October 2013 application by Lend Lease2 for
the making of an order pursuant to s.418 binding on the CFMEU and several of its own and
subcontractor employees engaged on four Lend Lease sites.
[8] During the course of the proceedings on 31 October 2013, an unsworn affidavit of one
Lend Lease manager was tendered and a statement of another was tendered. At one point,3
Senior Deputy President O’Callaghan observed:
“In this respect, as I read each of the statements it appears that they make assertions
about behaviour which if substantiated might well be in breach of the right of entry
provisions of the Act; but I am struggling to see how, on the limited information before
me, it fits the criteria about which I need to be satisfied under section 418 so as to be
required to make an order.”
[9] Later, Senior Deputy President O’Callaghan observed:4
“Irrespective of the conclusions that I may or may not reach in relation to this
application if the behaviour which is asserted in the various affidavits is made out it
could conceivably give rise to concern about misuse of right of entry provisions. In
this regard can I direct your attention to section 508 which gives the Commission the
capacity to review that issue, and potentially to make orders that would either affect
the union and/or its officials. If the information which - and I stress if, because I’ve got
no concluded view in this regard.
But if the information in the affidavits that I have been provided with is in fact
substantiated, and absent any other contradictory evidence from the union, I need to
put you on notice that I will give active consideration to commencing an inquiry of my
own motion pursuant to section 508. I thought it only fair that I alert you to that
possibility so that you could take that into account, in that it may not simply be the
case that this matter could be considered in the context of section 418 as it may have
broader ramifications. All right?”
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[10] Before adjourning, the Senior Deputy President said:5
“What I propose is to re-list the matter for 10 am tomorrow morning. I do so in the
fervent hope that the parties can arrive at an agreement which enables either or both
parties to advise me that that hearing is not required, at some stage before 10 o'clock. I
do expect to be provided with some advice about the form of that agreement,
particularly given the extent to which I foreshadowed to you, Ms Dooley, the
possibility of a section 508 inquiry initiated of my own motion. So I'll leave it with you
on that basis and adjourn the matter until 10 am tomorrow morning.”
[11] The hearing was adjourned until 1 November 2013. On that day two further affidavits
of Lend Lease managers were tendered and one gave evidence. The CFMEU called no
evidence. At the outset of the resumed hearing, the Senior Deputy President advised the
advocates that it was not his normal practice to order transcript, but “[i]n this case can I put
you on notice that I will order the transcript, primarily because of my concern about the
potential for a need to consider section 508.”6
[12] During the course of CFMEU submissions opposing the making of any orders under
s.418, Senior Deputy President O’Callaghan asked the CFMEU advocate (Ms Dooley):
“Do you accept the proposition that those officials entered the sites without providing
the requisite notice pursuant to Part 3-4 of the Act with respect of right of entry
arrangements?”7
[13] Ms Dooley answered that it was accepted that that was the evidence before the
Commission.
[14] At the conclusion of the 1 November 2013 proceedings, Senior Deputy President
O’Callaghan reserved his decision in the matter and then said:8
“. . . Ms Dooley, there is one matter which goes back to the evidence yesterday. The
evidence before me today has not been challenged. The evidence indicates that there
were numerous breaches of the right of entry provisions of Part 3-4 of the Act. Section
508 allows the commission (sic) to inquire into circumstances such as that on
application or of its own motion.
I’m going to review the evidence before me in that respect. If I decide further action is
warranted then I will advise both the CFMEU and, for that matter, the employer in this
instance, but I wanted to extend to the CFMEU through you the opportunity to provide
some advice to me which would fundamentally represent some form of undertaking in
terms of future behaviour which might be taken into account in any consideration of a
preliminary nature that I would give to whether or not such an inquiry should be
commenced.
That is, in blunt and simple terms, I’ve got evidence before me which indicates
multiple breaches of the right of entry provisions. That may or may not be confirmed
through further inquiry and it may or may not represent circumstances that require the
commission (sic) to act pursuant to section 508, but in considering what action, if any,
should be taken I would have regard to advice that might be provided by the CFMEU
as a guide for future behaviour. How extensive any advice needs to be is a matter for
[2014] FWCFB 1443
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you to consider, not me. My chance will come later if and when I am provided with
any such advice, but I thought it only fair to advise you first of all that I will be
considering whether or not section 508 requires further consideration and to indicate
in doing so I would have regard to any advice provided to me by the CFMEU over the
next week or so.”
[15] Senior Deputy President O’Callaghan published his decision in the s.418 matter on
1 November 2013.9 He refused the application for a s.418 order. In his decision, the Senior
Deputy President referred to evidence in relation to site entries on 30 October 2013 and made
observations concerning s.508:10
“[5] Evidence was given by the Lend Lease Managers on each of these projects.
This evidence was to the effect that, on 30 October 2013 around 13 CFMEU officials,
from within and outside South Australia visited various of these sites and proceeded to
exercise right of entry rights without notice so as to engage in discussions with
management and various employees.
. . .
[16] At the commencement of the proceedings on 31 October 2013 I advised the
CFMEU that I was concerned that the material before me indicated various breaches
of Part 3-4 of the FW Act and that I would consider whether I should inquire into this
pursuant to s.508. I reiterated this concern at the close of the proceedings on
1 November 2013 and invited the CFMEU to provide to me, separate to this
application, advice of its position relative to future right of entry behaviour which
might be relevant to my consideration of s.508.
. . .
[22] On the evidence before me, it appears that the visits to the Lend Lease sites on
30 October constituted a planned and resource intensive series of visits involving
intimidatory tactics in breach of right of entry requirements.
. . .
[26] In this context, the evidence is that five CFMEU officials entered the Tonsley
Park Flinders University site without approval and then improperly exercised entry
rights.”
[16] On 11 November 2013, a letter11 was sent from Senior Deputy President O’Callaghan
to the CFMEU and Lend Lease, stating:
“Consistent with the advice I provided to the Construction, Forestry, Mining and
Energy Union (CFMEU) on 31 October 2013, the information provided to me
indicates that the CFMEU may have misused its entry rights such that a consideration
of s.508 of the Act is warranted.
A hearing for this purpose has been listed for 21 November 2013.”
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[17] Directions12 attached to the letter, indicated that the Senior Deputy President “is
proposing to review the circumstances of entry practices followed by various officials of the
Construction, Forestry, Mining and Energy Union (CFMEU) relative to Lend Lease Building
Contractors Pty Ltd on 30 October 2013, pursuant to s.508 of the Fair Work Act 2009”. The
directions also required “that any party proposing to provide additional evidence in this [the
s.508] matter to provide witness statements and any document to be relied upon by
18 November 2013.”
[18] On 19 November 2013, Senior Deputy President O’Callaghan received a letter dated
18 November 2013 from the Chief Counsel of the Fair Work Building and Construction
(FWBC) asserting the right, by virtue of s.72 of the Fair Work (Building Industry) Act 2012
of the Director of the Fair Work Building Industry Inspectorate to make submissions (and be
heard) in the matter under s.508.
[19] Also, on 19 November 2013 Lend Lease filed submissions and witness statements and
the FWBC filed an affidavit, with attachments, of Mr J Mathers (a FWBC Inspector) in the
s.508 matter.
[20] The first hearing in the s.508 matter was on 21 November 2013. At the
commencement of the hearing, Senior Deputy President O’Callaghan advised the parties as
follows:13
“The parties would be aware that I have listed this matter of my own motion, pursuant
to section 508. That listing followed my consideration of a section 418 application
brought by Lend Lease. That matter was dismissed in a decision I issued on
1 November this year. In the course of the hearing in that matter, and again in my
decision, I expressed concern about the extent to which the evidence given to me - that
was not disputed in that matter - appeared to indicate misuse of entry rights, such that
consideration of section 508 was warranted. In that hearing and in my decision of
1 November, I invited the CFMEU to provide to me advice of its position, relative to
future right of entry behaviour which might be relevant to a consideration of section
508.
No advice has been received from the CFMEU. I note that in that decision of
1 November, I refused the section 418 application. On 11 November, I wrote to the
CFMEU, and to Lend Lease, with advice of this hearing. I provided a further copy of
my decision of 1 November. I provided the transcript of these proceedings. I also
issued directions requiring any party proposing to provide additional evidence to do
so, in written form by close of business on 18 November. I received additional
material in the form of various affidavits made out by Lend Lease managers. My
associate has asked Lend Lease to provide a copy of that to the other known parties.
I have also received a copy of correspondence from Fair Work Building and
Construction, to Ms O'Neill, the general manager of the Fair Work Commission, dated
18 November. That advice confirmed the intention of Fair Work Building and
Construction to seek to make submissions in this matter. On 19 November, I received
an extensive affidavit, made out by Mr Mathers of Fair Work Building and
Construction. My associate has requested this also be provided to the other two known
parties.
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To the extent that the belated receipt of that material may disadvantage a party, that's a
question that might be raised with me. The materials provided to me, refer to,
‘Behaviours which are said to have occurred subsequent to 31 October.’ It may be the
case, that the parties - if this matter proceeds - wish to raise the extent to which events
which occurred subsequent to 31 October, should or should not be taken into account.
That's a matter that may or may not assume relevance in this matter. The only other
comment that I would make, is that - I have noted, obviously, that the CFMEU is a
registered organisation under the Fair Work Act.
At this stage, I have formed a preliminary view that an inquiry ought to be made
pursuant to section 508, on the basis of the information which was first of all,
provided to me on or around 1 November, and which was not disputed by the parties
in that particular proceeding. At this stage, I have not formed any view about what
information should or shouldn't be taken into account, relative to events which
occurred subsequent to that date, or to events which are referenced in Mr Mathers's
affidavit.”
[21] Senior Deputy President O’Callaghan then heard the CFMEU application that he
disqualify himself on the basis of apprehended bias. Before adjourning, the Senior Deputy
President reserved his decision in respect of the apprehended bias application and
foreshadowed “that in the event that I decided against the CFMEU submissions that I should
disqualify myself, I would alert the parties to the likelihood that some further directions will
issue, with a view toward expediting the conduct of the matter from that point on. I make no
more than forecast that as a possibility.”14
[22] On 27 November 2013, Senior Deputy President O’Callaghan published the decision
in [2013] FWC 9343, which is the subject of the current appeal and decision.
The decision of Senior Deputy President O’Callaghan in [2013] FWC 9343
[23] In his decision, Senior Deputy President O’Callaghan:
canvassed the background to the s.508 matter;15
set out the CFMEU position in respect of its application and cited authorities
referred to by the parties;16
identified two other factors are relevant to his considerations:
He was required to consider the evidence in the s.418 matter in order to
determine the s.418 application. It was the unchallenged evidence in that
matter which gave rise to his s.508 concern.17
The initiation on his own motion of the s.508 matter should only be taken in
circumstances where material gives rise to a substantial concern about the
possible misuse of entry rights. The enquiry which follows “must go to
establishing whether, on the evidence presented to the Commission” in that
enquiry, substantiates a misuse of entry rights. “It is incumbent on the
Commission to articulate the concerns that gave rise to that action so that the
parties are aware of the issues to be addressed in that matter.”18
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[24] After considering the specific concerns raised by the CFMEU, Senior Deputy
President O’Callaghan concluded:19
“[45] The particular circumstances of the proceedings before me have to date related
specifically to the s.418 matter. No findings about misuse relative to s.508 have been
made.
[46] I have taken it that the reasonable or fair minded observer should have a
passing knowledge of Part 3-4 of the FW Act. I do not consider that my advice,
observations or conclusions made in the s.418 proceedings or decision could indicate
to a reasonable fair minded observer that I have already reached a conclusion about
s.508, or that any conclusions I have expressed will not be altered irrespective of the
evidence or arguments to be presented.
[47] In initiating a s.508 motion I consider that the Commission should, in all
fairness, articulate concerns which give rise to that action. Those concerns may, or
may not be confirmed through further inquiry and may or may not represent
circumstances that require action pursuant to that section. If I concluded that action
under that section was necessary, I would also have regard to advice which may be
provided by the CFMEU as a guide to future behaviour.
[48] It is open to the parties appearing in the s.508 proceedings to support their
submissions with evidence. That evidence will be considered on its merits. The
statements I have made to date support that position.
[49] For the reasons I have set out, I am not prepared to disqualify myself from
further consideration of the s.508 proceedings.”
[25] Senior Deputy President O’Callaghan then advised that the s.508 matter would be
relisted, he continued:20
“[50] In this respect it is appropriate that I draw to the attention of the parties, that
the additional material provided before the hearing on 21 November 2013 by Lend
Lease and Fair Work Building and Construction, indicates that the s.508 matter should
be expanded so as to encompass behaviours which may have occurred since
31 October 2013, or behaviours that may be continuing and behaviours which may
have affected employers other than Lend Lease. I propose to hear submissions on this
issue. Directions detailing my expectations of the future conduct of this matter will be
issued shortly.”
[26] There is no suggestion that any party put submissions opposing the expansion of the
scope of the s.508 matter when it resumed.
The appeal by the CFMEU
[27] The CFMEU submitted that the references by Senior Deputy President O’Callaghan
during the course of the s.418 hearing, in his s.418 decision, in the 13 November 2013 letter
and in his preliminary observations at the commencement of the s.508 hearing on
21 November 2013 about breaches of the right of entry provisions of Part 3–4—Right of entry
[2014] FWCFB 1443
8
of the Act were clearly observations of the nature that engage s.508 and raised a clear case of
apprehended bias. The CFMEU put its application to Senior Deputy President O’Callaghan
and its case in the appeal on the basis of apprehended bias. It did not suggest actual bias.
[28] The CFMEU further submitted that it is completely clear from the decision that the
Senior Deputy President did not appreciate that the CFMEU wished to put argument and
submissions that undermined the very basis of his positive findings that the CFMEU was in
fact and in law using rights under Part 3–4—Right of entry of the Act – namely that the
CFMEU was exercising or using rights under Part 3–4—Right of entry of the Act.
[29] The CFMEU also submitted that nothing is disclosed by the decision as to why the
observations and affirmative findings made in the earlier proceedings were not affirmative
and conclusive having regard to the circumstances in which they were made, the way they
were expressed and the undertaking that was sought. It submitted that no reason is put
forward as to why the fair minded observer would be dismissive of those views as being
anything other than final.
[30] The CFMEU submitted the circumstances were not much different from those which
existed in Laws v Australian Broadcasting Tribunal21 and unlike those in R v The
Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group.22
[31] The CFMEU further submitted that the way in which the matter developed, the strong
findings and observations made by the Senior Deputy President and the attempt to extract an
undertaking or advice from the CFMEU to obviate the need for further proceedings would all
engender a fear in a reasonably fair minded bystander that Senior Deputy President
O’Callaghan would not bring a fair and impartial mind to the resolution of the issue of
whether rights were exercised under Part 3–4—Right of entry of the Act such as to engage
s.508 and whether those rights if so engaged had been misused.
[32] The CFMEU also submitted that there is a serious error of jurisdiction, affecting the
standing of the Fair Work Commission (the Commission) and the impartiality with which it
should be seen to be acting and raising important issues affecting the circumstances in which
members of the Commission exercising powers on their own motion should disqualify
themselves rather than proceeding to determine the matter.
Consideration
[33] The test to be applied in relation to disqualification by reason of the appearance or
apprehension of bias (including by way of prejudgment) 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”.23 That
test is derived substantially from the test set out in the High Court's judgment in Livesey v The
New South Wales Bar Association.24 In Livesey, the High Court said, at paragraphs 299-300,
“... each case must be determined by reference to its particular circumstances”.
[34] In Laws v Australian Broadcasting Tribunal,25 Gaudron and McHugh JJ dealt with the
issue of prejudgement, deciding:
“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
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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.”
[35] Their Honours continued:
“Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a
previous decision gave rise to the conclusion that members of the Conciliation and
Arbitration Commission tended to favour the adoption of a principle of equal pay for
both sexes as soon as it was economically and industrially practicable to do so was not
a ground for disqualifying them from sitting on an application for an equalisation of
rates of pay for male and female employees brought in reliance upon their reasons.
This Court rejected [(1969) 122 C.L.R., at p. 554] the notion that a fair and
unprejudiced mind was ‘necessarily a mind which has not given thought to the subject
matter or one which, having thought about it, has not formed any views or inclination
of mind upon or with respect to it’. In Re Shaw, the transcript showed that a judge of
the Family Court of Australia had expressed opinions adverse to the case for the
husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with
whose judgment Stephen J. and Wilson J. agreed, said [(1980) 55 A.L.J.R., at p.14; 32
A.L.R., at p. 51] that the evidence did not justify ‘a conclusion that the views which
the learned judge expressed, although strong, were other than provisional, or that it
could reasonably be suspected that at the end of the case she would not decide with a
fair and unprejudiced mind’.”
[36] In order to determine the appeal it is necessary for us to consider the application of the
test - 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 - by reference to its particular circumstances of the matters before Senior
Deputy President O’Callaghan.
[37] First, it is necessary to consider the observations of Senior Deputy President
O’Callaghan which might be said to substantiate the proposition that he had formed a
concluded view in relation to s.508 misuse of Part 3–4—Right of entry of the Act (and the use
of those statutory rights) and was incapable of bringing an open mind in relation to that
question when informed by fuller evidence and submissions.
[38] There is nothing in the tentative observations made by the Senior Deputy President on
the first day of the s.418 proceedings which would lead to a reasonable apprehension that his
Honour’s mind was closed. His references to “assertions about behaviour which if
substantiated might well be in breach of the right of entry provisions”, initiating a s.508
matter “if the information in the affidavits that I have been provided with is in fact
substantiated, and absent any other contradictory evidence from the union” and “the
possibility of a section 508 inquiry initiated of my own motion” do not reasonably support an
apprehension of bias. Nor do the observations about “my concern about the potential for a
need to consider section 508” on the second day of the s.418 hearing or the observations of
the Senior Deputy President immediately before adjourning the s.418 hearing.
[39] The strongest views of Senior Deputy President O’Callaghan as to the Lend Lease
evidence in the s.418 proceedings were at the conclusion of his s.418 decision, where he
stated:26
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“[22] On the evidence before me, it appears that the visits to the Lend Lease sites on
30 October 2013 constituted a planned and resource intensive series of visits involving
intimidatory tactics in breach of right of entry requirements.
. . .
[26] . . . the evidence is that five CFMEU officials entered the Tonsley Park
Flinders University site without approval and then improperly exercised entry rights.”
[40] Those observations of Senior Deputy President O’Callaghan on the s.508 matter, when
read in as a whole provide no reasonable basis for a claim of apprehended bias, and no basis
whatever, when seen in the context of the processes he established for informing himself in
the s.508 matter, as we later discuss.
[41] The second circumstance is that the issues on appeal arose in the context of a
consideration by the Senior Deputy President of whether he should activate a s.508 matter on
his own motion. In that context, we think that it was necessary that the Senior Deputy
President had a reasonably based concern that warranted further investigation before
embarking on a process to elucidate further evidence and submissions, given the impact on
the resources of the Commission and the interests and resources of the parties in doing so.
The circumstances suggested by the limited and uncontested evidence in the s.418
proceedings and his tentative views as to what that evidence disclosed provided such a basis
for instituting the processes to further investigate whether some action under s.508 was
available within jurisdiction and appropriate.
[42] Having reached the view that such further action was required, Senior Deputy
President O’Callaghan was right to articulate the concerns which gave rise to that action and
establish a process for elucidating further evidence and submissions.
[43] The third relevant circumstance is the action taken by Senior Deputy President
O’Callaghan to initiate the process for further consideration of the s.508 issues - affording the
parties an opportunity to put further evidence before him and to make submissions in relation
to the s.508 matter - directed to his proposed “review [of] the circumstances of entry practices
followed by various officials of the Construction, Forestry, Mining and Energy Union
(CFMEU) relative to Lend Lease Building Contractors Pty Ltd on 30 October 2013, pursuant
to s.508 of the Fair Work Act 2009”.27
[44] The basis of the s.508 proceedings recorded in the 11 November 2013, a letter was
sent from Senior Deputy President O’Callaghan to the CFMEU and Lend Lease - that “the
information provided to me indicates that the CFMEU may have misused its entry rights such
that a consideration of s.508 of the Act is warranted”28 does not suggest prejudgement.
[45] At the commencement of the s.508 proceedings on 21 November 2013 Senior Deputy
President O’Callaghan expressed a concern about the extent to which the (undisputed)
evidence that the s.418 matter appeared to indicate misuse of entry rights, such that
consideration of section 508 was warranted. He indicated at that stage, “I had formed a
preliminary view that an inquiry ought to be made pursuant to section 508, on the basis of the
information which was first of all, provided to me on or around 1 November 2013 and which
was not disputed by the parties in that particular proceeding.”29
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[46] The s.508 processes established by Senior Deputy President O’Callaghan indicated a
clear intention to consider the s.508 matter informed by fuller evidence and submissions of
interested parties, which he did not have the benefit of in the s.418 proceedings.
[47] We are not satisfied that the observations of Senior Deputy President O’Callaghan
informed by the limited evidence in the s.418 matter founded a reasonable apprehension
prejudgement on his part or, in the context of the processes he established to obtain further
evidence and submissions in the s.508 matter, that a fair-minded lay observer might
reasonably apprehend that he might not bring an impartial and unprejudiced mind to the
resolution of the s.508 matter, when informed by fuller evidence and submissions. In our
view, the circumstances of this matter fall within category of matter identified by Gaudron
and McHugh JJ in Laws v Australian Broadcasting Tribunal,30 where it could not reasonably
be suspected that at the end of the case his Honour would not decide with a fair and
unprejudiced mind.
[48] In our view, Senior Deputy President O’Callaghan applied the right test in determining
the CFMEU apprehended bias application and applied it correctly to the facts.
[49] The CFMEU put weight in the appeal on the significance of invitations by Senior
Deputy President O’Callaghan to the CFMEU to provide statements of intent which might
affect his decision as to the institution of s.508 proceedings. It submitted that the attempt by
the Senior Deputy President to extract an undertaking from the CFMEU about ‘future
behaviour’ as being relevant consideration to exercising the power to act on the Commission’s
own motion under s.508 confirmed that he had reached a concluded view that the CFMEU
had misused breaches of the right of entry provisions of Part 3–4—Right of entry of the Act.
[50] We do not accept that proposition. The invitation to the CFMEU to “provide to me
advice of its position, relative to future right of entry behaviour which might be relevant to a
consideration of section 508” may be more reasonably viewed as affording the CFMEU an
opportunity, in the event that it believed that the full evidence and submissions would result in
findings in relation to s.508 against its interests, to put some position to him which might
affect the making of such findings. Senior Deputy President O’Callaghan left the CFMEU
free to choose to argue that the jurisdictional basis for s.508 orders did not exist, supported by
any evidence and whatever submissions it chose to bring in any s.508 proceedings. The
invitation could not reasonably be said to evidence a predisposition on the part of Senior
Deputy President O’Callaghan or found a reasonable apprehension that Senior Deputy
President O’Callaghan was unable to decide the question of jurisdiction (and orders if
jurisdiction was found to exist and orders were found to be appropriate) on the basis of fuller
evidence and submissions with an open mind.
Conclusion
[51] The appeal raises a question as to the apprehension of bias in the unusual
circumstances of proceedings under s.508 initiated by a Member of the Commission on their
own motion. For that reason we are satisfied that permission should be granted in the public
interest.
[52] However, we are not persuaded that the decision of Senior Deputy President
O’Callaghan reflects jurisdictional error. We are satisfied that he applied the right test and
[2014] FWCFB 1443
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applied it correctly to the facts. We think his decision not to disqualify himself on the basis of
apprehended bias was correct in the particular circumstances of the matter before him.
[53] The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
R Reitano of Counsel for the Construction, Forestry, Mining and Energy Union.
J Forbes of Counsel for Lend Lease Building Contractors Pty Ltd.
M Roder Senior Counsel for Fair Work Building and Construction.
Hearing details:
2014.
Melbourne;
February 12.
Printed by authority of the Commonwealth Government Printer
Price code C, PR548224
1 [2013] FWC 8659.
2 C2013/6599.
3 Transcript, at para 29 in C2013/6599 on 31 October 2013.
4 Transcript, at paras 49-50 in C2013/6599 on 31 October 2013.
5 Transcript, at para 81 in C2013/6599 on 31 October 2013.
6 Transcript, at para 84 in C2013/6599 on 1 November 2013.
7 Transcript, at para 307 in C2013/6599 on 1 November 2013.
8 Transcript, at para 332-334 in C2013/6599 on 1 November 2013.
9 [2013] FWC 8659.
10.[2013] FWC 8659 at paras 5, 16, 22 and 26.
http://www.fwc.gov.au/decisionssigned/html/2013fwc8659.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc8659.htm
[2014] FWCFB 1443
13
11 Letter issued in RE2013/1710 on 11 November 2013.
12 Directions issued in RE2013/1710 on 11 November 2013.
13 Transcript, at paras 15-16, 20 and 24-25 in RE2013/1710 on 21 November 2013.
14 Transcript, at para 222 in RE2013/1710 on 21 November 2013.
15 [2013] FWC 9343, at paras 4-24.
16 [2013] FWC 9343, at paras 25-32.
17 [2013] FWC 9343, at para 33.
18 [2013] FWC 9343, at para 36.
19 [2013] FWC 9343, at paras 45-49.
20 [2013] FWC 9343, at para 50.
21 [1990] HCA 31.
22 (1969) 122 CLR 546.
23 Johnson v Johnson (2000) 201 CLR 488 at 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Applied in
Commonwealth Bank of Australia v A Heap, Print PR920785, at para 14.
24 (1983) 151 CLR 288 at 299-300.
25 [1990] HCA 31; (1990) 170 CLR 70, at 100, per Gaudron and McHugh JJ.
26 [2013] FWCA 8659 at para 22 and 26.
27 Directions issued in RE2013/1710 on 11 November 2013.
28 Letter issued in RE2013/1710 on 11 November 2013.
29 Transcript, at para 25 in RE2013/1710 on 21 November 2013.
30 [1990] HCA 31; (1990) 170 CLR 70, at 100, per Gaudron and McHugh JJ.
http://www.airc.gov.au/fullbench/PR920785.htm
