1
Fair Work Act 2009
s.225—Enterprise agreement
Metropolitan Fire & Emergency Services Board
v
United Firefighters’ Union of Australia
(AG2014/5121)
COMMISSIONER WILSON MELBOURNE, 13 MAY 2014
Application for recusal of FWC Member on the ground of apprehended bias. Whether
circumstances lead to view of apprehended bias
Introduction
[1] On 28 March 2014, the Metropolitan Fire and Emergency Services Board (MFB)
made application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009
(the Act) for the termination of two enterprise agreements after their nominal expiry date (the
Enterprise Agreement Termination Application). The matter was assigned to me and, as
reported on in greater detail below, was the subject of an application for it to be dealt with by
a Full Bench (which was refused); and has now been programmed for hearing before me.
[2] Through a letter to the Fair Work Commission dated 24 April 2014, solicitors for the
MFB wrote to me advising they “are instructed to request that you excuse yourself from this
matter and that the applications be referred to another member of the FWC for determination
as a matter of urgency”. In subsequent communication on 30 April 2014, the MFB confirmed
this to be a request for me to recuse myself from hearing and determining the Enterprise
Agreement Termination Application and that the application was grounded in an argument of
apprehended bias.
[3] The United Firefighters’ Union of Australia (UFU) opposes the application for recusal.
[4] The Recusal Application was the subject of short exchanges of written material and a
hearing before me on 6 May 2014.
[5] The exchanges and hearing show that the MFB’s Recusal Application is an application
for apprehended bias and not actual bias, with the apprehension of bias arising from events
and conduct I may have seen and heard in my capacity as a Commissioner and which may be
called into evidence in the hearing of the forthcoming Enterprise Agreement Termination
Application. The MFB has not raised in its Recusal Application that the apprehended bias
arises because of anything I may have done or said to any person, or because of any decisions
I may have made as a Commissioner. Instead it relates, in the MFB’s submission, to not
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DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 3117
2
wishing to place me in an embarrassing position of being a witness to events about which I
may be required to make findings.
[6] For the reasons set out in this decision, I refuse the MFB’s application to recuse
myself from hearing the Enterprise Agreement Termination Application. That application
will continue to be heard before me, as already programmed and with the continuation of the
Direction already given to the parties.
The Recusal Application
[7] The application to recuse myself from hearing the Enterprise Agreement Termination
Application is grounded in the MFB’s correspondence to me dated 24 April 2014, which
includes the submissions that it appears to the MFB I will be required to make determinations
of fact in relation to matters to which I “have borne witness in other contexts”. Particulars of
this ground were given as the conduct of parties during conferences held before me under
s.240 of the Act; and the conduct of the UFU in asserting its rights under the Agreements
affected by the Enterprise Agreement Termination Application, with specific reference to a
s.739 dispute notified in relation to the introduction of GPS in appliances, and a s.418
application concerning the deployment of Mark V Appliances in the First Responder
Programme. These are referred to as the Original Recusal Particulars.
[8] The UFU’s initial written response included that the MFB’s application should be
made in proper form and on the basis of appropriate affidavit or other material.1 While the
MFB’s correspondence of 24 April 2014 is not an application to the Fair Work Commission
in accordance with formal practice, such as being made on a Form F1 (Application for which
there is no specific approved form), which the Fair Work Commission Rules 2013 (Rules)
provide must be used when “there is no form approved for a particular purpose”2, I receive the
MFB correspondence as an application, and to the extent that it is necessary to do so, I waive
compliance with the Rules in order to so receive it as an application.
[9] Prior to me seeing the MFB Recusal Application, solicitors for the UFU advised my
Chambers in writing they were seeking instructions about the application. The UFU’s
solicitors subsequently wrote to the Commission on 28 April 2014 and advised the UFU’s
opposition to the Recusal Application. As a consequence, I directed the parties to the effect
that if the MFB wished to put anything before me in response to the UFU's correspondence,
or in the event that either party wished to have a hearing before my determination of the
Recusal Application, they were to provide that additional material, or request for hearing, as
the case may be, no later than 5 PM on Wednesday, 30 April 2014.
[10] At 30 April on 5.09PM, the MFB provided short further particulars about its Recusal
Application. Those submissions did not include a request by the MFB that they sought a
hearing on the application. The MFB’s further particulars are summarised as follows
(referred to as the MFB’s Further Particulars for Recusal);
The MFB intends to call evidence in support of the Enterprise Agreement
Termination Application about events and conduct I have apparently witnessed.
Those events are those set out in the MFB’s earlier correspondence;
1 Correspondence from solicitors for UFU, 28 April 2014
2 Fair Work Commission Rules 2013, sub-rule 8(3)
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In an application for termination of an enterprise agreement, the MFB is required to
address the statutory criteria, and in considering whether termination is contrary to
the public interest, the Commission may have regard to whether there has been a
reasonable opportunity for the parties to negotiate a new agreement. Relevant is
the 1999 matter of Mount Thorley3 about which the MFB said;
“In Mount Thorley, it was considered significant that the negotiations between
the parties on a new agreement had not been comprehensive. Justice Boulton
made it clear, however, that this did not "mean that the Agreement should
continue forever or that it should be a bar to the implementation of changes and
improvements at the Mine". Rather, his Honour was concerned that "there
should be a proper endeavour made to address these matters through
negotiations and by agreement before it would be appropriate to terminate the
Agreement".”4 (references omitted)
With reference to the s.240 matter indicated in the MFB’s 24 April 2014
correspondence (see above), there were conferences before me on 20 and 23
August and 24 September 2013; after which a Recommendation was issued. This
was followed by presentations from the parties on 31 October and 12 November
2013. Coupled with these stages actually before me, the parties provided me with
copies of numerous letters and emails over a 6 month period. Further, there were
private discussions between myself and each party “as is usual in the conduct of
conferences”.
The MFB will submit that the 2010 Operational Agreement impacts on the MFB’s
productivity and its ability to implement efficiencies and change. In support of this
contention, the MFB will lead evidence “that illustrates the ways in which the
Agreements, including the consultation and dispute resolution procedures, interfere
with the Applicant’s ability to provide essential services in accordance with its
statutory obligations and hinder productivity”.
Coupled with this submission about the impact of the enterprise agreements on the
MFB will be evidence about the conduct of the two matters referred to in the
MFB’s 24 April 2014 correspondence (namely the s.739 dispute notified in relation
to the introduction of GPS in appliances, and a s.418 application concerning the
deployment of Mark V Appliances in the First Responder Programme). The MFB
argues in relation to each that, in the course of the s.739 matter, I observed the
conduct of the parties, and that I am a material witness to those events.
The conduct of the parties in bargaining and more generally under the Agreements
is also said to be relevant and it is said in relation to that conduct that there “is a
real likelihood that in relation to a number of events you would be a material
witness”.
3 Re Mount Thorley Operations Enterprise Agreement 1996, AIRC, Boulton J, R7850 (4 August 1999)
4 Correspondence from solicitors for MFB, 30 April 2014, para 5
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The Commission’s Fair Work Commission Practice Note 2/2013, Fair hearings5 ,
(Fair Hearings Practice Note) is relevant to my decision and provides guidance
about the making of an application.
[11] At 9.39AM on 1 May 2014, after the date and time directed by me as being the
response time for indicating whether a hearing was required, the UFU solicitors sought further
time to respond to the direction that the parties advise. At 10.49AM on the same day, the
UFU subsequently advised they sought to be heard on the Recusal Application.
[12] As a consequence, a date for hearing was established and the parties were given a
further direction by me that if either party considered it necessary to file further material or
witness statements for the hearing, that material must be filed and served no later than 12:00
pm on Monday, 5 May 2014. No such further material was filed, although Counsel for the
UFU provided a short written submission in the course of the hearing on 6 May.
[13] I have taken account of all the correspondence and other material provided by the
parties in arriving at my decision.
The Enterprise Agreement Termination Application
[14] On 28 March 2014, the MFB made application to the Commission for the termination
of two enterprise agreements, the Metropolitan Fire and Emergency Services Board, United
Firefighters Union of Australia, Operational Staff Agreement 20106 and the Metropolitan
Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief
Fire Officers Agreement 20107. The nominal expiry date of both agreements is 30 September
2013.8 While seeking the termination of two enterprise agreements, there is a single
application before me.
[15] Material filed by the MFB at the same time as making the Enterprise Agreement
Termination Application indicates the following matters in support of its application;
(a) A number of provisions in the Agreements, for example those which govern
consultation and dispute resolution, do not provide an appropriate balance between the
interests of the MFB, its employees and their representatives.
(b) Among other things, the Agreements unreasonably hinder or impair the process of
change and improvement within the MFB, and the capacity of the MFB effectively to
carry out its functions and responsibilities to the public as a provider of essential
services under the Metropolitan Fire Brigades Act 1958 (MFB Act).
(c) Following any termination of the Agreements, the MFB will comply with its
dispute resolution and consultation obligations under any applicable award including
the Fire Fighting Industry Award 2010 (Modern Award).
5 See https://www.fwc.gov.au/at-the-commission/how-the-commission-works/fair-hearings; commenced operation 22 July
2013
6 AE881005, [2010] FWAA 7414
7 AE881004, [2010] FWAA 7413
8 See clause 4.1 of the Operational Staff Agreement, and clause 4 of the Assistant Chief Fire Officer Agreement
https://www.fwc.gov.au/at-the-commission/how-the-commission-works/fair-hearings
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(d) Due to the approach taken by the UFU, the parties have made very limited progress
in the process of negotiating new enterprise agreements to replace the Agreements. No
agreement has been reached between the parties, even provisionally, on any single
matter.
(e) This is not a case where the protracted nature of the bargaining process has arisen
primarily from differences in the positions of the parties (although these do exist), but
rather, as part of a strategy by the UFU to delay bargaining unreasonably. The objects
and scheme of the FW Act do not support this approach.
(f) Termination of the Agreements, together with any undertakings of the MFB, would
not alter the status quo in such a way that it would act as a disincentive for the MFB to
bargain in good faith. The terminations, together with any undertakings, would not
deliver to the MFB effectively all that it seeks from bargaining.
(g) The Agreements contain a number of clauses which are uncertain in their effect or
void. This arises primarily as a result of inconsistency with the implied constitutional
limitation as articulated in Re Australian Education Union; ex parte Victoria (1995)
184 CLR 188 and as applied in United Firefighters Union of Australia v Country Fire
Authority [2014] FCA 17.
(h) Following any termination of the Agreements, the Modern Award will apply to the
majority of the MFB's operational employees in accordance with the FW Act.
(i) Moreover, the MFB intends that employees will continue to receive entitlements
superior to those under any applicable award, including the Modern Award, following
termination.
(j) Following any termination of the Agreements, the employees would continue to
enjoy the right to be represented by the UFU (or other representative of their choice)
for purposes including consultation and dispute resolution and the negotiation of new
agreements.
[16] On 31 March 2014 my Chambers communicated with the parties about the
programming of the MFB’s application to terminate the agreements.
[17] On 4 April 2014, the MFB made application in accordance with s.615A(2) to have a
Full Bench hear and determine the Enterprise Agreement Termination Application. At the
request of the President, I convened a hearing on 8 April 2014 in order to allow the parties to
make submissions to be taken into account by the President. In the course of the hearing, the
parties were invited to address their expectations of the duration of a hearing and the numbers
of witnesses that could be expected to be called to give evidence. The submissions made
indicated the view of the MFB that their application might require a 10 day hearing with the
expectation the MFB alone might call 15 - 20 witnesses. On the other hand, the UFU
suggested that it might need to call more than 20 witnesses and that the full hearing may need
between 15 and 20 days in a single block.
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[18] The President considered the submissions and subsequently refused the MFB’s request
that the matter be referred to a Full Bench, which decision was published on 14 April 2014.9
[19] Following the publication of the President’s decision, I initiated communication with
the parties about potential hearing dates and suitable pre-hearing Directions. Following this
communication, hearing dates were confirmed for 20 hearing days in the period of Monday 7
July to Friday 1 August 2014
[20] The MFB had not indicated before the provision of hearing dates and Directions to the
parties that any party or anyone else may apprehend bias on my part if I were to hear the
substantive application. In pressing its Recusal Application, and in considering alternative
dates for the hearing sought by the UFU, the MFB indicated that the potential for delay to the
hearing of the substantive issue was an important consideration on their part (presumably in
the event that I granted the MFB’s application and the matter was assigned to another
Member, who vacated the hearing dates and Directions given by me and allocated different
hearing dates and set their own pre-hearing Directions).
Apprehended bias generally
[21] An application for a presiding member to disqualify themselves from hearing a matter
relates to a question of procedural fairness. The Commission’s Fair Hearings Practice Note
makes the point;
“The provision of a fair hearing is at the very heart of the Commission’s obligations to
the parties who appear before it. A fair hearing involves the opportunity for all parties
to put their case and to have that case determined impartially and according to law.
Members of the Commission are bound to act ‘judicially’ in the sense that they are
obliged to provide procedural fairness and to determine matters impartially.”10
[22] The Full Bench has articulated the need to apply the principles of natural justice and to
afford procedural fairness in this way;
[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.
...
[28] It is clear that members of the Commission are bound to act in a judicial
manner and the principles of natural justice are applicable to hearings before the
Commission. The term ‘natural justice’ in the context of administrative decision
making has been equated to an obligation to act fairly or to accord procedural fairness.
9 [2014] FWC 2498
10 para 7
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The requirements of natural justice or procedural fairness are not prescribed in a fixed
body of rules. What is required is judicial fairness and what is fair in one case may be
quite different from what is required in another.
[29] The Commission’s obligations regarding the manner in which it must perform
its functions and exercise its powers are set out in ss.577 and 578 of the Act.
Relevantly, the Commission must act in a manner that:
is fair and just;
is quick, informal and avoids unnecessary technicalities;
is open and transparent; and
takes into account equity, good conscience and the substantial merits of the case.
[30] These obligations may be seen as incidents of a general duty on the
Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to
the justice system and is at the very heart of the Commission’s obligations to the
parties who appear before it.11 (references omitted)
[23] Plainly, the appearance of bias to a reasonable observer is to be avoided. Such
application is distinct from an application for disqualification on the ground of actual bias.
[24] The High Court set out the test out the objective test of the “fair-minded lay observer”
in Johnson v Johnson12 as follows;
“It has been established by a series of decisions of this Court that the test to be applied
in Australia in determining whether a judge is disqualified by reason of the appearance
of bias (which, in the present case, was said to take the form 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.”13
[25] The test is repeated in Ebner v Official Trustee14 and is based upon the need for public
confidence in the administration of justice. The High Court observed in Johnson v Johnson
about the test being an objective one that;
“The hypothetical reasonable observer of the judge's conduct is postulated in order to
emphasise that the test is objective, is founded in the need for public confidence in the
judiciary, and is not based purely upon the assessment by some judges of the capacity
or performance of their colleagues. At the same time, two things need to be
remembered: the observer is taken to be reasonable; and the person being observed is
‘a professional judge whose training, tradition and oath or affirmation require [the
judge] to discard the irrelevant, the immaterial and the prejudicial’”15
11 Viavattene v Health Care Australia [2013] FWCFB 2532, at [21] - [30]
12 (2000) 201 CLR 488
13 Ibid, p 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
14 (2000) 205 CLR 337, at p 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ
15 (2000) 201 CLR 488, p 493
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[26] In the earlier case of Livesey v NSW Bar Association16, the test was referred to in this
way (in the context of an appeal in which the appellant apprehended bias on the part of judges
who had, in an earlier case, made adverse findings about the credit of a person whom the
Appellant might bring forward as a witness);
“It was common ground between the parties to the present appeal that the principle to
be applied in a case such as the present is that laid down in the majority judgment in
Reg. v. Watson; Ex parte Armstrong. That principle is that a judge should not sit to
hear a case if in all the circumstances the parties or the public might entertain a
reasonable apprehension that he might not bring an impartial and unprejudiced mind to
the resolution of the question involved in it. That principle has subsequently been
applied in this Court (see, e.g., Re Judge Leckie; Ex parte Felman; Reg. v. Shaw; Ex
parte Shaw) and in the Supreme Court of New South Wales (see, e.g., Barton v.
Walker). Although statements of the principle commonly speak of "suspicion of bias",
we prefer to avoid the use of that phrase because it sometimes conveys unintended
nuances of meaning.”17
[27] The application of the objective test of the “fair-minded lay observer” is set out in
Ebner v Official Trustee as a two step process requiring identification of matters, followed by
connection of those matters with the case being decided. The High Court articulated the
application of the principle as follows;
“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.”18
[28] In its consideration of applications of apprehension of bias, the Commission has
followed these principles, both as to the objective test contained within, and the two steps of
identification of matter and logical connection (see for example UFU v MFESB19, Priestly v
Department of Parliamentary Services20; Re Metro Trains21)
[29] Application of the apprehension of bias principle to the work of the Commission and
its predecessors has taken account of its statutory role and purpose.
16 (1983) 151 CLR 288
17 Ibid, pp 293-294
18 (2000) 205 CLR 337, p 345
19 (2005) 141 IR 438, at [79] and [84], per Ross VP, Hamilton DP, Gay C
20 [2011] FWA 672, at [11], per Watson VP
21 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, 2013 FWC 4034, at [33], per Bissett C
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[30] In R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss
Group22, the High Court was called upon to consider prohibition against the Commonwealth
Conciliation and Arbitration Commission from making certain award changes that would
remove any difference in the rates wage payable to males and females in respect of the same
classification of work. The Applicant alleged that statements made by the President on behalf
of the Commission provided reasonable grounds for disqualification because he and others
may have prejudged the application. The High Court referred to the tests that must be applied
in this way;
“The common law principles of natural justice are well understood though they have
been variously expressed. It is sufficient here in relation to that aspect of those
principles which is called in aid by the applicant to recall the well known passages
from Allinson v. General Council of Medical Education and Registration, as cited and
commented upon by Isaacs J. in Dickason v. Edwards, and from R. v. Sussex Justices;
Ex parte McCarthy. A recent exposition is to be found in the judgment of the Master
of the Rolls in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon.
Those requirements of natural justice are not infringed by a mere lack of nicety but
only when it is firmly established that a suspicion may reasonably be engendered in
the minds of those who come before the tribunal or in the minds of the public that the
tribunal or a member or members of it may not bring to the resolution of the questions
arising before the tribunal fair and unprejudiced minds. Such a mind is not 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.”23
(references omitted)
[31] In relation to a consideration of the nature of the jurisdiction exercised by the
Commission in the same matter, the High Court held;
“It is plain that when it is necessary to consider a question of fairness in relation to a
tribunal the whole of the circumstances in the field of the inquiry are of importance.
The nature of the jurisdiction exercised and the statutory provisions governing its
exercise are amongst those circumstances. It is therefore important to bear in mind
that the Commission does not sit to enforce existing private rights. Amongst other
things, it is its function to develop and app1y broad lines of action in matters of public
concern resulting in the creation of new rights and in the modification of existing
rights. It is not necessarily out of place, and indeed it might be expected that a member
of the Commission from time to time in the course of discharging his duties should
express more or less tentative views as to the desirability of change in some principle
of wage fixation. The very nature of the office of a member of the Commission
requires that he should apply his mind constantly to general questions of arbitral
policy and consider the lines along which the processes of conciliation and arbitration
for the prevention and settlement of industrial disputes ought to move.”24
[32] Whereas the matter of R v Angliss was concerned with the Commission’s arbitral role
in respect of wages applying generally under an award, Re Finance Sector Union of Australia
22 (1969) 122 CLR 546
23 Ibid, p 553 – 554, per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ
24 Ibid, p 553
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and Another Ex Parte Illaton Pty Ltd25 dealt with an application seeking to restrain a member
of the Australian Industrial Relations Commission from further participation in proceedings
before a Full Bench. It was argued that Deputy President MacBean should be precluded from
participation in proceedings before the Full Bench because of earlier decisions that “contain
some strongly worded conclusions in relation to some issues of fact which may be
involved”26. The High Court refused the application in the matter and held the following
about the role of the Commission and the practical difficulties faced in making decisions;
“The nature of industrial relations in this country makes it inevitable that, in a
particular industry, the leading employer and employee organisations, and their
officers, will be frequently involved in dispute with one another. Obviously, the
functioning of the Commission requires that its members participate in the
determination of matters in circumstances where they have a familiarity with the
industry in which the particular dispute arises, with the context of the dispute and,
inevitably, with facts relevant to the dispute and with one or more of the parties to the
dispute. In that regard, it has long been recognised that, in most cases, that familiarity
is an advantage rather than a disqualifying factor. Again, the Act itself obliges the
President of the Commission to constitute industry panels to which a Presidential
member and at least one Commissioner shall be assigned: s 37(1).
In these circumstances, the need for caution which this Court has consistently
identified (see, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Re Polites
(1991) 173 CLR, at 86-87; 38 IR 119-120; R v Australian Stevedoring Industry Board;
Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116) in relation to
applications for an order preventing a member of a statutory tribunal from
participating in the discharge of the functions of that tribunal by reason of
apprehended bias is particularly apposite when such an application is directed against
a member of the Commission. It is that care must be taken to bear in mind that the
basis for disqualification by reason of apprehended bias is that there are grounds upon
which a party or the public might entertain a reasonable apprehension that the
particular member of the Commission will not decide the case impartially or without
prejudice. The basis for disqualification is not merely that the member's past decisions,
on questions of fact or law, might lead to a reasonable expectation that she or he will
decide the case adversely to one of the parties. Nor is it that she or he has had previous
contact or experience, as a member of the Commission, with the facts involved in the
particular matter, with the context in which the particular matter arises, or with one or
more of the parties involved in the particular matter.”27
[33] In UFU v MEFSB28, an appeal decision of the Australian Industrial Relations
Commission, the Full Bench acknowledged;
“The starting point for our consideration of this issue is the generally accepted
proposition that members of the Commission are bound to act in a judicial manner and
the principles of natural justice are applicable to hearings before the Commission. The
term “natural justice” in the context of administrative decision making has been
25 (1992) 42 IR 352
26 Ibid, p 353
27 Ibid
28 (2005) 141 IR 438
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essentially equated to an obligation to act fairly or to accord procedural fairness. As
Kitto J observed in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth):
“What the law requires in the discharge of a quasi-judicial function is judicial
fairness.”
The rule against bias is one of the principles of natural justice.
It follows that the failure of a Commission member to disqualify themselves, in
circumstances where statements which they have made give rise to a reasonable
apprehension of bias, is a failure to accord procedural fairness.”29 (references omitted)
[34] The Full Bench in UFU v MFESB was dealing with a complaint that prejudicial
statements had been made by Commissioner Foggo to the parties. The Full Bench noted the
statements were made at a time when the matter was part heard to the point of opening
submissions and witness statements having been provided, but not yet sworn or admitted, and
that the person to whom the statements were made on transcript was to be called to give
evidence.30 After reviewing the statements made by the member, the Full Bench held that the
Commissioner should have disqualified herself and that;
“Consistent with the test set down in the above passage we are satisfied that the
Commissioner’s comments were such that a fair minded lay observer might
reasonably apprehend that the Commissioner might not bring an impartial and
unprejudiced mind to the resolution of the question she was required to decide.
We have concluded that the Commissioner erred in refusing to disqualify herself on
the ground of apprehended bias.”31
[35] Notwithstanding the decision in this matter, there is not a principle that a Member will
always disqualify themselves because of what they may have said or done at earlier stages of
proceedings; for example, see Oram v Derby Gem Pty Ltd32; Priestly v Department of
Parliamentary Services33; CFMEU v FWC34. Likewise there is not a principle that extends to
disqualification because of what has been said or done in conciliation conferences; for
example, see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
And Allied Services Union of Australia v John Goss Pty Ltd35; Re Metro Trains.36
[36] The Full Bench in CEPU v John Goss Pty Ltd37 was required to consider an appeal
against a decision of Commissioner Hoffman not to disqualify himself from hearing an
application to suspend or terminate various bargaining periods for reason of apprehended bias.
29 Ibid, at [61] - [63]
30 ibid, at [80]
31 ibid, at [89] – [90]
32 (2003) 134 IR 379, per Lawler VP, Kaufman SDP, Blair C
33 [2011] FWA 672, at [11], per Watson VP
34 [2013] FWC 9343, per O’Callaghan SDP; upheld on appeal [2014] FWCFB 1443, per Watson SDP, Kovacic DP, Wilson
C
35 (2003) 125 IR 247, per Duncan SDP, Cartwright SDP, Tolley C
36 2013 FWC 4034, per Bissett C
37 (2003) 125 IR 247
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The Full Bench recorded the Commissioner’s actions that had led to the recusal application in
this way;
“In September 2002 the appellant, the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
initiated bargaining periods with the respondents seeking to make certified agreements
with each of the respondents. In February 2003 the CEPU commenced industrial
action against the respondents. On 18 February 2003 the respondents requested the
Commission to conciliate under s 170NA of the Act. Hoffman C listed the matter for
19 February.
On 19 February conciliation began. During the course of the conciliation the
Commissioner spoke separately with the appellant union and with the respondents.
Neither party was privy to the other party’s discussion with the Commissioner.
On 20 February the respondents applied to the Commission pursuant to s
170MW(3)(a) of the Act to terminate the bargaining periods on the ground that
industrial action being taken or proposed in support of the proposed agreements was
threatening to endanger the life, the personal safety or health, or the welfare, of the
population or of part of it and that the Commission make an order on its own initiative
under s 170MW(8)(b)(i).”38
[37] The Full Bench then held the following about the conduct and the merits of the recusal
application;
“In the present case the interviews were separate and there was no expression by the
Commissioner of any view of the matter. There is nothing stated by the parties which
could be taken as an indication of bias. Most of the decisions we have considered do
contain such an element. As regards a predecessor Tribunal of this Commission, the
High Court in R v Conciliation and Arbitration Commission held there is no
apprehended bias in a situation where views had been expressed. However even that
position does not arise in the present case. There is no ground on which we can find
that a reasonable bystander would conclude that Hoffman C’s action gives rise to
apprehended bias.
In this case the private discussions were in s 170NA proceedings. They are, by their
nature, conciliation proceedings. The practice of discussions being held privately with
each of the parties in conciliation proceedings is well established. It can be said to be a
normal tool of the Commission in such proceedings. It is apparent from the affidavit of
Mr Butler and the extract of transcript of proceedings on 19 February that discussions
concerned issues of process to enable conciliation to take place, rather than discussion
of substantive matters.
The allegation of apprehended bias was made in s 170MW proceedings. The grounds
to be relied on in an application under s 170MW are set out in s 170MW(3). It is to be
decided on the basis of evidence and submissions on those matters. We are unable to
see anything in the conduct of the Commissioner giving rise to a reasonable
apprehension by a fair-minded lay observer that he might not bring an impartial and
38 Ibid, p 248
[2014] FWC 3117
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unprejudiced mind to the consideration of the evidence and submissions to decide that
application. These were quite separate proceedings to the s 170NA proceedings on
which the allegation of apprehended bias depends, for it is in them that the separate
conversations took place. We do not say that such circumstances may never give rise
to apprehended bias, but that in our view they do not in this case.”39
[38] The Applicant raises as relevant to my consideration the contents of the Fair Hearings
Practice Note however, in doing so did not point to any cases that involved its consideration.
Counsel for the MFB, Mr Parry SC, conceded that the Fair Hearings Practice Note only
attempts a summary of the current law and that it does not have anything above or beyond the
cases.40 The Practice Note provides insofar as is relevant;
“Impartiality and apprehended bias
24. The Commission’s impartiality is central to a fair hearing. Bias, whether actual
or apprehended, is inconsistent with the Commission’s obligation to provide a fair
hearing.
25. The general principle is that a Member should not deal with a matter if in all
the circumstances a fair minded observer might have a reasonable apprehension that
the Member might not bring an impartial and unprejudiced mind to the case before
him or her.
26. If a party believes that a Member may not bring an impartial mind to the
matter, they may make an application that the Member disqualify himself or herself
from hearing the matter. For example, if a Member conciliates a matter and a party
believes that the Member may not bring an impartial mind to the arbitration of the
dispute then they may request that the matter be referred back to the relevant Panel
Head for allocation to another Member.
27. Any application will be considered in context, with each decision depending
on the particular issues or circumstances raised. ). For example, as explained in
paragraphs 14 and 15 above, Members may intervene in the conduct of matters to
ensure that proceedings are conducted fairly and efficiently. This approach will have
an effect on the way in which applications to disqualify a Member are considered.
28. In dealing with apprehended bias applications, the High Court has made clear
that Members should not too readily agree to disqualify themselves. As the High Court
has observed:
“… 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.”
39 Ibid, p 257
40 Transcript, PN 186
[2014] FWC 3117
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29. An apprehended bias application will not automatically be granted if a
Member’s past decisions on questions of fact or law could lead to a reasonable
expectation that they would decide a matter adversely for one of the parties.”41
(references omitted)
[39] The Fair Hearings Practice Note makes the point that Members should not too readily
agree to disqualify themselves and follows decisions of the Full Bench on the subject; see for
example Oram v Derby Gem Pty Ltd42; UFU v MEFSB43. The cases in turn follow the
proposition enunciated by the High Court in Re JRL; Ex parte CJL44. In the same case, Mason
J also said;
“It seems that the acceptance by this Court of the test of reasonable apprehension of
bias in such cases as Watson and Livesey has led to an increase in the frequency of
applications by litigants that judicial officers should disqualify themselves from sitting
in particular cases on account of their participation in other proceedings involving one
of the litigants or on account of conduct during the litigation. It needs to be said loudly
and clearly that the ground of disqualification is a reasonable apprehension that the
judicial officer will not decide the case impartially or without prejudice, rather than
that he will decide the case adversely to one party.”45
[40] The Courts have held that the possibility of the apprehension of bias must be “firmly
established” in the case of an application for disqualification for suspected prejudice; for
example see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss
Group46 and Laws v Australian Broadcasting Tribunal47, which latter enunciation has been
applied by the Full Bench, including in the matters of Oram v Derby Gem Pty Ltd48 and UFU
v MEFSB49.
Consideration
[41] The centre of the MFB’s Recusal Application is that I will be required to make
determinations of fact in relation to matters “I have borne witness in other contexts”. This
contention is particularised in its Original Recusal Particulars as the conduct of parties during
unspecified conferences held before me under s.240 of the Act. This conduct is said to
include the conduct of the UFU in asserting its rights under the Agreements affected by the
Enterprise Agreement Termination Application. The MFB’s Original Recusal Particulars
made specific reference in this regard to a s.739 dispute notified in relation to the introduction
of GPS in appliances, and a s.418 application concerning the deployment of Mark V
Appliances in the First Responder Programme. Further particulars were provided in the
MFB’s Further Particulars for Recusal.
41 ibid
42 (2003) 134 IR 379, at [109]
43 (2005) 141 IR 438, at [78]
44 (1986) 161 CLR 342, p 352, per Mason J
45 Ibid, p 352
46 (1969) 122 CLR 546, p 553, per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ
47 (1990) 170 CLR 70, p 100, per Gaudron and McHugh JJ
48 (2003) 134 IR 379, at [107]
49 (2005) 141 IR 438, at [76]
[2014] FWC 3117
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[42] Against this background the question arises “whether a fair-minded lay observer might
reasonably apprehend” that I might not bring an impartial and unprejudiced mind to the
resolution of the question I am required to decide.
[43] In this regard, I turn to application of the two step process set out in Ebner v Official
Trustee50 of first requiring identification of matters, followed by connection of those matters
with the case being decided.
[44] I turn first to identifying the matters that are said might lead to deciding the Enterprise
Agreement Termination Application other than on its legal and factual merits.
[45] The relevant matters are set out in the Original Recusal Particulars and the MFB’s
Further Particulars for Recusal. It is argued that I will be required to make determinations of
fact in relation to matters to which I “have borne witness in other contexts” and that the
evidence to be led may place me “in an embarrassing position of being a witness to events on
which you may be required to make findings”.51 Further, the MFB submits that the two
letters;
“set out in sufficient detail the matters of evidence that lead to the embarrassment that
would occur if you as the Commission Member were to sit and determine matters to
which you would be a material witness. The conduct of the parties in negotiations is in
our submission relevant to the applications to terminate the enterprise agreements.
Further the conduct of the parties during the ‘life’ of the enterprise agreements is also
relevant. Again, as a Member of the Commission you would be a material witness to
this conduct.”52
[46] In several separate parts of its 30 April 2014 correspondence, the MFB refers to me
potentially being a material witness to conduct. For example, in relation to the s.739 and
s.418 matters identified in both correspondences referred to above as providing evidence of
the conduct of the parties more generally, the MFB writes that;
“As the Commission Member you conducted conferences to seek to resolve such
disputes. In doing so you observed the conduct of the parties. These events are
material and you would be a material witness to them.”
[47] In the hearing on 6 May 2014, the MFB was asked to clarify their intention in this
regard, which they did by responding it was not their intention to endeavour to call me as a
witness.53 I therefore understand the references to be an intention to show that events
possibly witnessed by me in previous settings (or possibly not) may be brought into the
forthcoming Enterprise Agreement Termination Application proceedings which may then
require a determination by me.
[48] The MFB refers to the provisions of the Workplace Relations Act 1996, as it was prior
to the WorkChoices amendments which restrained members from hearing a matter they had
50 (2000) 205 CLR 337, p 345
51 Correspondence from MFB’s solicitors, 24 April 2014
52 Correspondence from MFB’s solicitors, 30 April 2014
53 Transcript, PN 181
[2014] FWC 3117
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conciliated, if objected to by a party. The MFB submits the relevant provision was most
recently that set out in s 105, which provided as follows;
“105 Exercise of arbitration powers by member who has exercised conciliation powers
(1) Where a member of the Commission has exercised conciliation powers in relation
to an industrial dispute, the member shall not exercise, or take part in the exercise of,
arbitration powers in relation to the industrial dispute if a party to the arbitration
proceeding objects.
(2) The member shall not be taken to have exercised conciliation powers in relation to
the industrial dispute merely because:
(a) after having begun to exercise arbitration powers in relation to the industrial
dispute, the member exercised conciliation powers;
(b) the member arranged for a conference of the parties or their representatives
to be presided over by the member, but the conference did not take place or
was not presided over by the member; or
(c) the member arranged for the parties or their representatives to confer among
themselves at a conference at which the member was not present.”54
[49] It is significant that this provision, or one similar to it, does not feature in the
legislation that resulted from either of the two very significant bodies of legislative change
that followed its repeal; namely, the provisions enacted by the Work Choices amendments55 or
the Fair Work Act. The provisions of s.105 are also not consistent with the current practice of
the Fair Work Commission, to the extent that s.105 makes mandatory the requirement that a
conciliator not arbitrate if a party objects, whereas the current practice is not prescribed by
legislation and is dependent upon the practices of the presiding Member, the views of the
parties and the content of the instrument being dealt with (for example, some enterprise
agreement dispute settlement procedures require that the arbitrator be someone other than the
conciliator if one party objects56).
[50] The second matter for consideration is whether there is a logical connection between
the matter and the feared deviation from the course of deciding the case on its merits. This
question requires resolution on an objective basis - whether a fair-minded lay observer might
reasonably apprehend that I might not bring an impartial and unprejudiced mind to the
resolution of the question I am required to decide.
[51] The “feared deviation” in this case is that the Enterprise Agreement Termination
Application will not be determined in accordance with the requirements of the Act and the
evidence presented because of the matters set out in the Original Recusal Particulars and the
MFB’s Further Particulars for Recusal.
54 Workplace Relations Act 1996, extracted from www.comlaw.gov.au, compilation prepared on 16 December 2005
55 Workplace Relations Amendment (Work Choices) Act 2005
56 See for example, Victorian Public Service Workplace Determination 2012, cl. 11.11.2
http://www.comlaw.gov.au/
[2014] FWC 3117
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[52] The characteristics of the fair-minded lay observer are described in the following
manner by the majority in Johnson v Johnson;
“The hypothetical reasonable observer of the judge's conduct is postulated in order to
emphasise that the test is objective, is founded in the need for public confidence in the
judiciary, and is not based purely upon the assessment by some judges of the capacity
or performance of their colleagues. At the same time, two things need to be
remembered: the observer is taken to be reasonable; and the person being observed is
"a professional judge whose training, tradition and oath or affirmation require [the
judge] to discard the irrelevant, the immaterial and the prejudicial''.
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.”57 (references
omitted)
[53] In the same matter, Justice Kirby described the traits of the observer in this way;
“Obviously, all that is involved in these formulae is a reminder to the adjudicator that,
in deciding whether there is an apprehension of bias, it is necessary to consider the
impression which the same facts might reasonably have upon the parties and the
public. It is their confidence that must be won and maintained. The public includes
groups of people who are sensitive to the possibility of judicial bias. It must be
remembered that, in contemporary Australia, the fictitious bystander is not necessarily
a man nor necessarily of European ethnicity or other majority traits.
The attributes of the fictitious bystander to whom courts defer have therefore been
variously stated. Such a person is not a lawyer. Yet neither is he or she a person
wholly uninformed and uninstructed about the law in general or the issue to be
decided. Being reasonable and fair-minded, the bystander, before making a decision
important to the parties and the community, would ordinarily be taken to have sought
to be informed on at least the most basic considerations relevant to arriving at a
conclusion founded on a fair understanding of all the relevant circumstances. The
bystander would be taken to know commonplace things, such as the fact that
adjudicators sometimes say, or do, things that they might later wish they had not,
without necessarily disqualifying themselves from continuing to exercise their
powers.”58 (references omitted)
[54] The forthcoming hearing of the MFB’ Enterprise Agreement Termination Application
requires an analysis of the merits of evidence against the statutory purpose that enterprise
57 201 CLR 488, p 493, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
58 Ibid, p 508, per Kirby J
[2014] FWC 3117
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agreements may be terminated against the wishes of a party in certain, statutorily defined
circumstances set out as follows in s.225 and s.226;
225 Application for termination of an enterprise agreement after its nominal
expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following
may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section
225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into
account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation
(if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations
including the likely effect that the termination will have on each of them.
[55] The Applicant refers in its submissions to the need, in order to satisfy the statutory
criteria, to provide evidence about whether there has been a reasonable opportunity for the
parties to negotiate a new agreement, and it specifically draws attention to the decision in Re
Mount Thorley.59 The matter involved a contested application for the termination of the
Mount Thorley Operations Enterprise Agreement 1996. Section 170MH of the Workplace
Relations Act 1996 applied to the application, and the section obligated the Commission to
consider the views of the persons bound by the agreement about the proposed termination,
and then;
“(3) If, after complying with subsection (2), the Commission considers that it is not
contrary to the public interest to terminate the agreement, the Commission must, by
order, terminate the agreement.”60
[56] In his decision, Boulton J found;
59(1999) Print R7850, 91 IR 184, Boulton J
60 WR Act, s.170MH(3), in Re: Mt Thorley 91 IR 184, at [3] - [4]
[2014] FWC 3117
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“In the present matter, it is appropriate to look at all the facts and circumstances in
making a judgment about whether the termination of the Agreement would be contrary
to the public interest. Some of the matters which in the circumstances of the present
application seem to be of particular relevance are as follows:
the statutory scheme for the making and observance of agreements and the objects
of the Act;
the need to ensure the efficient and viable operation of the enterprise;
the progress in the negotiations towards making a replacement agreement;
the problems relating to the continued operation of the Agreement;
the provisions of the Agreement dealing with its renewal and/or termination; and
the implications of terminating the Agreement in regard to the terms and conditions
of employment of the workers concerned and possible industrial disputation.”61
[57] His Honour held, in refusing the application for termination, the following in relation
to the submission that the agreement impeded the introduction of change, which is a
submission the MFB has foreshadowed in its Enterprise Agreement Termination Application;
“Fourthly, it has not been established that the continuation of the Agreement will
unreasonably hinder or impair the process of change and improvement at the Mine. An
analysis of the terms and operation of the Agreement, together with a consideration of
the evidence and submissions made regarding the effect of the Agreement, does not
warrant a conclusion that the Agreement will unreasonably impede necessary changes
being effected at the Mine. In some respects the problems identified by the Company
with the implementation of changes and improvements relate more to the attitudes of
the workforce and the need to have to negotiate about the changes than to the
provisions or operation of the Agreement. Of course the observance of agreements and
the need to negotiate about change will constitute an obstacle to unilateral decision-
making by management regarding matters affecting the relationship between the
employer and employees. However it is preferable, and consistent with the objects of
the Act, that such matters be regulated by agreement.
This does not mean that the Agreement should continue forever or that it should be a
bar to the implementation of changes and improvements at the Mine. However there
should be a proper endeavour made to address these matters through negotiations and
by agreement before it would be appropriate to terminate the Agreement under s
170MH of the Act.”62
[58] In Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous
Union63, a matter involving an application made under the Fair Work Act and associated
transitional legislation, for the termination of an enterprise agreement, Vice President Watson
61 Re: Mt Thorley, at [41]
62 Ibid, at [47] - [48]
63 [2010] FWA 2434, Watson VP
[2014] FWC 3117
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applied Full Bench authority for the proposition that the public interest involves something
distinct from the interests of the parties, although they may be similarly affected.64 The
proposition was affirmed by Vice President Lawler in Re Tahmoor Coal Pty Ltd65, relating to
the contested application under the Fair Work Act for the termination of two enterprise
agreements. Relevant to these proceedings and the forthcoming hearing of the MFB’s
Enterprise Agreement Termination Application is that the employer in Re Tahmoor Coal
submitted that the agreements sought to be terminated imposed constraints that His Honour
was satisfied “adversely affect the productivity of the Tahmoor mine to a material degree”.66
Notwithstanding, Vice President Lawler refused the application, and noted;
“It seems to me that under the scheme of the FW Act, generally speaking, it will not
be appropriate to terminate an agreement that has passed its nominal expiry date if
bargaining for a replacement agreement is ongoing such that there remains a
reasonable prospect that bargaining (in conjunction with protected industrial action
and or employer response action) will result in a new agreement. This will be so even
where the bargaining has become protracted because a party is advancing claims for
changes that are particularly unpalatable to the other party. While every case will turn
on its own circumstances, the precedence assigned to achieving productivity benefits
through bargaining, evident in the objects of the FW Act, suggests that it will
generally be inappropriate for FWA to interfere in the bargaining process so as to
substantially alter the status quo in relation to the balance of bargaining between the
parties so as to deliver to one of the bargaining parties effectively all that it seeks from
the bargaining.”67
[59] I am satisfied, having considered these examples of contested applications for the
termination of enterprise agreements, that matters such as whether the agreements will
unreasonably impede necessary changes and whether there remains a reasonable prospect that
bargaining will result in a new agreement may well be relevant matters of submission and
evidence in the forthcoming Enterprise Agreement Termination Application hearing. I am
also satisfied it is likely that pursuit of such arguments will involve evidence of the parties’
relationships in and around events in the Fair Work Commission; however, I have nothing
before me that would indicate that such evidence can only come from those events, or only
the ones set out in the Original Recusal Particulars and the MFB’s Further Particulars for
Recusal.
[60] The fair-minded observer will likely have a general knowledge of the workings of the
Fair Work Commission; that the Commission assists with the resolution of collective and
individual disputes; that those disputes are resolved through a mix of conciliation and
arbitration; and that often those steps involve the same participants. The same observer will
likely understand that even though the presentation and conduct of the parties will range from
the model or exemplary through to argumentative and difficult, the Commission member will
work with each.
64 Ibid, at [11]; applying Re Kellogg Brown and Root Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement
2000, 139 IR 34
65 [2010] FWA 6468, see [30]
66 Ibid, at [15]
67 Ibid, at [55]
[2014] FWC 3117
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[61] In the hearing of this matter, the MFB developed an argument that evidence and
material seen in the course of hearing the Enterprise Agreement Termination Application
might cause an apprehension of bias to be raised at that time, and that the MFB would be
concerned at the prospect of time wasted and evidence that might have to be repeated in the
event the proceedings were abandoned by me. I understood this to be a risk, about which the
MFB was concerned, that only in the later hearing of evidence might the apprehension of bias
arise. In a question to Mr Harding, Counsel for the UFU, I posed my understanding of the
MFB submission this way;
“The second question I then had was in relation to the submission that Mr Parry put
forward that and I'm about to do you a disservice in terms of your submission but bear
with me. But I understand you to say that at some point in the future the apprehension
might crystallise because of what is led in the way of evidence.
What I understand him to say is that at that point in the event that the parties were to
say, "Well, look, there is an apprehension of bias" and I were to accede to that request
and to vacate the commission, vacate the hearing. In my lay language that obviously
creates a big issue for the parties. It means that there's potentially evidence which is
being thrown away and may have to be repeated.”68
[62] Senior Counsel for the MFB, Mr Parry SC, returned to this question in his reply with
this submission;
“One doesn't come to this and say, "You will be biased" or necessarily that will be the
case. The concern is that these things are unconscious in effect or may well be. And
can I just deal with that last aspect that my learned friend raised? That this is a future
apprehension. It's not a future apprehension. It is an apprehension we have now. We
are going to commence a proceeding where some 20 or 30 days are set aside for
hearing. There are a huge number of witnesses that are to be called and we have
indicated to the commission what some of the evidence will be.
It is not quite good enough to say, "Well, it might crystallise in the future." The world
of apprehension in this area is not based on something crystallising because by the
time it crystallises it's too late. Really, it is as the High Court said in Livesey if there
is any real possibility, that is, participation in a case might lead to a reasonable
apprehension of prejudgment or bias, you should of course refrain from sitting. You
are required in effect to speculate about what will occur further down the line and
make an assessment as to our current apprehension and the commission has heard
what we have to say.
It's not good enough in our submission to say, "You can't speculate." You can
speculate or indeed the nature of these applications in effect often do require
speculation. It's not good enough, we would submit, to simply say, "This might
happen further down the track." That would be the worst of all worlds but for the
commission and ourselves.”69
68 Transcript, PN 249 - 250
69 Transcript, PN 264 - 266
[2014] FWC 3117
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[63] Notwithstanding this submission, and what the MFB submits about Livesey v NSW
Bar Association, there are few discernible particulars before me about the nature of the
MFB’s concern. In Livesey, the facts faced by the Appellant in the proceedings below
presented him with a real problem for the conduct of his case. On the one hand, the High
Court held the following, a passage referred to by the MFB;
“If a judge at first instance considers that there is any real possibility that his
participation in a case might lead to a reasonable apprehension of pre-judgment or
bias, he should, of course, refrain from sitting.”70
[64] On the other hand, the High Court cogently expressed the dilemma faced by the
Appellant in the same case thus;
“In the circumstances, the appellant was confronted by a dilemma. If he called Ms.
Bacon to give evidence he was, to quote what was said on his behalf to the Court of
Appeal, "put in a position of having to call a person whose evidence, on the issue
relevant to this case, [had] already been not believed" by two members of the Court
hearing the case against him. If he did not call Ms. Bacon as a witness, he would be in
the position where two members of the Court of Appeal, having heard Ms. Bacon give
evidence in the previous case in which he was neither a party nor a witness, had, in
their respective judgments in that case, published the conclusion that her evidence was
untruthful and demonstrated that the claim that there had been a genuine loan by Ms.
Altman of the bail money should be rejected.”71
[65] The circumstances of the matter before me are not analogous with those in Livesey v
NSW Bar Association.
[66] In this matter, the MFB point me to three different matters, however leave me to
speculate as to which conduct I might later be called upon to make a decision about. I do not
know the conduct, or which day the conduct comes from, or which person may have
committed it. The MFB has not particularised the conduct of any party in any of the
proceedings referred to above, verbal, written or otherwise, on which it relies either now as
the basis for its Recusal Application, or in relation to the merit of its Enterprise Agreement
Termination Application. In contrast, it appears usual for the conduct complained of to have
been identified to or known to the Judge or the Commission Member prior to making a
decision about a recusal decision; see for example, Livesey v NSW Bar Association; R v
Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss; Re Finance
Sector Union of Australia and Another Ex Parte Illaton Pty Ltd; Oram v Derby Gem Pty Ltd;
CFMEU v FWC; Priestly v Department of Parliamentary Services ; CEPU v John Goss Pty
Ltd ; Re Metro Trains.
[67] The MFB submits that apprehended bias in this application goes to future decision
making about the conduct of others that may have taken place in front of me. The MFB
submitted the circumstance faced by me is not dissimilar to that in Scahill v Thomas, a short
Supreme Court of WA decision from 1936, involving the prosecution of a driver involved in a
road traffic accident. The conviction was overturned by the Supreme Court of WA because of
70 (1983) 151 CLR 288, p 294
71 Ibid, p 299
[2014] FWC 3117
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undisclosed information held by one of the Justices who imposed the conviction. The head-
note of the decision records;
“On the hearing of the charge before two Justices of the Peace, evidence was given for
the prosecution, and the appellant gave evidence on his own behalf. At the conclusion
of the hearing the Justices recorded a conviction, and. imposed a penalty on the
appellant, and one of the Justices then remarked that he had seen the collision out of
which the charge arose, but had not let this influence him in reaching his decision.”72
[68] In quashing the conviction and referring it for rehearing, the decision proper records;
“I cannot help thinking in this instance that, as no note was taken of the evidence of
the defendant, and as one of the justices had seen the accident, he must have been
influenced in his decision by what he had seen. It may have been unconsciously, and
possibly was, but I cannot help thinking that he must have been biased, seeing that no
note was taken of defendant's evidence, who was subjected to a long cross-
examination.”73
[69] In effect, the duty not to act on private knowledge had not been discharged.
[70] In this case though, and because of very limited material provided by the MFB, and no
evidence, there is simply no way of me knowing what it is I am said to have seen or how that
might influence me in reaching my decision.
[71] The fact that the MFB has chosen not to particularise the conduct that is said to require
weighing by me or that which my later decision making may cause me embarrassment is to
fail to connect their application with the obligation in the first step of applying the
apprehension of bias principle as set out of Ebner - the requirement for “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”74.
[72] Similarly, the MFB fails in its obligation in respect of the second step of applying the
apprehension of bias principle in Ebner - to connect such particulars as have been put forward
with the “feared deviation from the course of deciding the case on its merits”.
[73] The High Court in Re Finance Sector Union of Australia and Another Ex Parte Illaton
Pty Ltd addressed the practical problem of Members of the Commission dealing with issues or
circumstances that might arise at one time and which might connect with other matters. The
judgment records the following (noting that, for the purposes of context, s.111(1)(g) dealt
with applications to dismiss a matter or refrain from further hearing; and s.115 dealt with
certified agreements);
“It is true that Deputy President MacBean's reasons for decision on the application
pursuant to s lll(l)(g) of the Act contain some strongly worded conclusions in relation
to some issues of fact which may be involved in the s 115 proceedings. Those
conclusions were reached by him after a hearing extending over some 45 days of the
72 (1936) 39 WALR 1, per Draper J
73 Ibid, at 3
74 (2000) 205 CLR 337, p 345
[2014] FWC 3117
24
Commission's time. If what was involved were two sets of proceedings between
different interests about unrelated matters, Deputy President MacBean may well have
been disqualified from participating in the s 115 proceedings by reason of an
impermissible appearance of bias and prejudgment. The s 111(1) (g) and the s 115
proceedings are, however, related proceedings between the same interests. Indeed,
both sets of proceedings must be seen as steps in one overall contest between the same
group of interests and arising out of a common set of facts. In that context, it appears
to us to be unreasonable and impractical to think that the determination of factual
issues at one point in the resolution of the overall contest could or should preclude
involvement in other steps, the outcome of which may depend on the same facts or
some aspect of them. Should the applicants' submissions be accepted, it would be
necessary for the Commission, which is not a court, to be re-constituted in a way
which would exclude Deputy President MacBean from participating in the s 115
proceedings and, to the extent that the same factual issues were involved, to determine
them ab initio, notwithstanding that they have already been determined by Deputy
President MacBean after a 45 day hearing. That would be impractical and, moreover,
would permit of inconsistent findings of facts in what is, in essence, one overall
contest.”75
[74] Because of the way in which the MFB has chosen to argue its Recusal Application, the
particulars before me do not rise to a sufficient level that would allow a connection of their
case in respect of apprehended bias with my obligations. Notwithstanding the MFB’s
submission that its correspondence of 24 and 30 April “set out in sufficient detail the matters
of evidence that lead to the embarrassment that would occur if you as the Commission
Member were to sit and determine matters to which you would be a material witness” it has
not done so and has not attempted to go beyond the general assertions contained in the
correspondence. Since the MFB gives no detail or evidence of the events it refers to, or how
those events may prejudice future hearings, and since it makes no argument about any aspect
of my conduct, or what I have said or decided, it means they have failed to heed the caution
set out in Ebner in relation to its second step of applying the apprehension of bias principle;
“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.”76
[75] With a failure to articulate the nature of my interest, and the asserted connection with
the possibility of departure from impartial decision making, there is nothing to assess, and the
MFB’s application for me to disqualify myself from hearing the Enterprise Agreement
Termination Application falls on that basis alone.
[76] However, it is appropriate I also consider the alternative possibility; that the events
have been sufficiently particularised as to allow the fair-minded lay observer to objectively
view my role in those events and what that might say about my need to make decisions about
them in the forthcoming Enterprise Agreement Termination Application hearing. As
described above, the events surround certain applications that came before me from mid-
75 (1990) 42 IR 352, pp 353 - 354
76 Ibid
[2014] FWC 3117
25
2013. The observer, with general knowledge of the workings of the Fair Work Commission
would see matters that were not especially out of the ordinary that were conducted over an
extended period. The observer would see that there were no arbitrated decisions made in the
particularised matters, and would rely on the MFB’s submissions there had been no comments
or conduct of mine that would cause concern. Objectively then, the fair-minded observer will
likely look upon the particulars presented so far without a concern that participation in the
events as described to the Commission so far would preclude me from bringing an impartial
and unprejudiced mind to the resolution of the question I am required to decide, namely the
proposed termination of two enterprise agreements. If the fair-minded lay observer
apprehended bias in UFU v MFSEB, because of the very direct and explicit words said by the
Presiding Member, however apprehended no bias in Re Finance Sector Union of Australia
and Another Ex Parte Illaton Pty Ltd; Oram v Derby Gem, CEPU v John Goss Pty Ltd;
Priestley v Department of Parliamentary Services; Re Metro Trains, or CFMEU v FWC, or, R
v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group and saw
those matters as merely the exercise of the Commission's ordinary functions, they would not
apprehend any bias in this matter.
[77] As a result of the foregoing analysis, the MFB’s Recusal Application fails and is
dismissed. The Enterprise Agreement Termination Application will remain listed before me,
and the already issued hearing dates and Directions are maintained.
COMMISSIONER
Appearances:
MR F Parry SC with Mr R Dalton, of Counsel for Metropolitan Fire and Emergency Services
Board
Mr M Harding, of Counsel, for United Firefighters’ Union of Australia
Hearing details:
2014.
Melbourne:
6 May 2014
Printed by authority of the Commonwealth Government Printer
Price code G, PR550492
& THE FAIR WORK - OMMISSION THE SEA
