1
Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights
Fair Work Commission
(RE2013/1710)
SENIOR DEPUTY PRESIDENT
O'CALLAGHAN
ADELAIDE, 27 NOVEMBER 2013
Section 508 application of the Commission’s own motion - possible misuse of permit rights -
apprehension of bias.
[1] This decision deals with an application that I should exclude myself from further
consideration of a matter initiated of my own motion pursuant to s.508 of the Fair Work Act
2009 (the FW Act). The s.508 matter is currently described as a review 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.
[2] At the initial hearing of this matter on 21 November 2013, Mr Reitano, of counsel
represented the CFMEU. Mr Earls of the Master Builders Association of South Australia
represented Lend Lease Building Contractors Pty Ltd (Lend Lease). Mr Dowd, of counsel
appeared for Fair Work Building and Construction which gave notice that it sought to make
submissions in this matter pursuant to s72 of the Fair Work (Building Industry) Act 2012.
Permission was granted to Mr Reitano and Mr Dowd pursuant to s.596(2)(a) of the FW Act.
[3] At the commencement of the proceedings on 21 November 2012 the CFMEU sought
that I disqualify myself from further pursuing the matter because of an apprehension of bias
arising from statements I made in s.418 proceedings on 31 October 2013 and 1 November
2013 and, subsequently, statements in a decisioni issued on 1 November 2013. In summary
form the CFMEU position was that those statements, considered in the context of the test in
Heap v AIRCii would indicate to a fair minded lay observer that rights of entry were being
exercised and breached such that a fair hearing, or the perception of a fair hearing could not
be assured.
[4] In order to consider the CFMEU position, the background to the s.508 matter must be
provided.
[5] On 30 October 2013 Lend Lease lodged an application pursuant to s.418, through
which it sought orders binding on the CFMEU and various of its own, and subcontractor
employees engaged on four nominated sites. That application was the subject of a hearing on
31 October 2013. Lend Lease provided four sworn affidavits in support of its application. I
have set out a summary of the evidence before me in that matter shortly. Suffice to say that,
soon after the commencement of this hearing, I invited the CFMEU to consider whether it
[2013] FWC 9343 [Note: An appeal pursuant to s.604 (C2013/7662) was
lodged against this decision - refer to Full Bench decision dated 28
February 2014 [[2014] FWCFB 1443] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB1443.htm
[2013] FWC 9343
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wished to propose undertakings which might resolve the application. I also provided the
following advice:iii
“THE SENIOR DEPUTY PRESIDENT: Irrespective of the conclusion 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 that 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 affect either 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've 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 at this stage 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?
[6] In response to a request from the CFMEU, the matter was then adjourned to enable
discussions to occur. Later that day Lend Lease advised that no agreement had been possible.
The matter was relisted for 1 November 2013.
[7] The evidence given to me in support of the Lend Lease application, with respect to Mr
Hay, the Site Supervisor for Lend Lease for the Adelaide Convention Centre Project, was not
challenged. Mr Hay’s evidenceiv was that three CFMEU officials entered the Adelaide
Convention Centre site on 30 October 2013 without right of entry notices and despite being
told they were not allowed to enter the site. Whilst they did not initially disclose the purpose
of the visit, one of the officials later said that they wanted to talk to Lend Lease/Baulderstone
members and that the visit was part of a national drive focused on Lend Lease employees.v
[8] The evidence of Mr Gooding, the Project Manager for Lend Lease for the TAFE
Building, part of the Tonsley Park redevelopment, was that, on 30 October 2013 Mr Gava of
the CFMEU telephoned him to request a favour for interstate CFMEU officials to come to
that job. Mr Gooding refused that request. Mr Gava responded by advising that the CFMEU
would come anyway. Mr Gooding advised that would represent an illegal entry. Five CFMEU
officials later entered that site and met with various employees. Mr Gava told Mr Gooding
"We are just here to talk to the boys and show the guys the project."vi Mr Gooding advised the
officials that they were not allowed to enter the site as no right of entry notice or suitable
reason had been given. Mr Gooding’s evidence was that the matter of right of entry notices
was then discussed but Mr Gava then advised "that's the way it's going to be from now on".vii
[9] Mr Gooding’s evidence was that he expressed specific concern that one of the officials
was not dressed according to site safety standards but that his instruction to this effect was
ignored. Mr Gooding’s evidence was that the officials entered the site and met with various
employees, and walked around the site. They raised some minor safety issues with him before
leaving the site.
[10] Mr Gooding’s evidence was that the officials later re-entered the site. They confirmed
a desire that Lend Lease employ a full-time CFMEU delegate at the site and that, on the
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direction of the CFMEU Secretary, they intended not to provide right of entry notices in the
future.
[11] Mr Gooding’s evidence was not disputed.
[12] The evidence of Mr Ising, the Lend Lease Site Manager for the Adelaide Oval
Redevelopment, was that on 30 October 2013 six CFMEU officials, two of whom he
understood were from interstate, entered that site. One official, Mr McDermott advised that
they were "taking a look around your site".viii Mr Ising advised that the officials did not have
right of entry permits. Notwithstanding this, the officials proceeded to split up and walk
around the site. One official, Mr Roberts responded to a question about the purpose of the
visit by saying "This is the way of the world until your managers talk with our managers".ix
[13] Mr Ising’s evidence was that the officials met with various employees in two separate
meetings and subsequently made a claim that Lend Lease should employ a "working
steward".x
[14] The evidence of Mr Crabb was provided through an affidavit and confirmed through
oral evidence. Mr Crabb is the Site Manager for Lend Lease on the Flinders University
building, part of the Tonsley Park redevelopment. His evidence went to the attendance, on 30
October 2013, at the site, of four CFMEU officials. Mr Crabb’s evidence was that:
[15] I approached the group of officials. Because I knew Mark Gava, I approached him and
had a conversation to the following effect. While this occurred the other officials continued to
walk around the site.
“I said There is no entry permit in place, you cannot enter the site.
Please leave.
Mark Gava replied We are not leaving. This is the way it’s done now. We are going
for a walk on site.
We had a brief discussion about his refusal to provide an entry notice, during which
time Mr Gava indicated that the three other people were officials from interstate. I
subsequently found out that they were from Melbourne and Canberra.
The officials proceeded onto site without authorisation.”xi
[16] Mr Crabb's evidence was that the officials then held discussions with various
employees before advising him that Lend Lease should conform with a number of Melbourne
practices. The officials then met with various employees during a work break before again
meeting with Mr Crabb over issues, including a claim that Lend Lease should engage a
permanent CFMEU delegate. Two interstate officials then asked why the CFMEU flag was
not on a crane hook and demanded that it be located there.
[17] Mr Crabb's evidence was that the officials then left the site but subsequently re-entered
the site and renewed their concerns over the location of the CFMEU flag. Mr Gava advised
that if the flag was not in place on the hook of the crane, the officials would stop the job.
Another official said "If you don't put it up there we‘ll bring back 10 brothers tomorrow and
[2013] FWC 9343
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stop the job".xii Mr Crabb's evidence was that the officials then approached an employee
directly and that the flag was subsequently put on the crane hook.
[18] The CFMEU advised that it was not going to provide any evidence in this matter.xiii
“THE SENIOR DEPUTY PRESIDENT: Ms Dooley, is the CFMEU going to provide
any evidence in this matter?
MS DOOLEY: We’re not, your Honour.
[19] The Lend Lease position, in support of its s.418 application, was that the official’s
conduct represented breaches of right of entry provisions across a number of sites as part of
what it considered to be a much larger campaign which included the threat of industrial
action. Lend Lease did not assert that its employees, or other employees actually took
industrial action but that the threat of industrial action made by the CFMEU was sufficient for
the purposes of s.418(1).
[20] The CFMEU positionxiv was that there was no industrial action that was threatened for
the purposes of s.418(1). The CFMEU position was that:xv
“THE SENIOR DEPUTY PRESIDENT: Can I take it you don’t dispute the evidence
that there was a coordinated campaign of visits to the four sites involving Lend Lease?
MS DOOLEY: I’m not sure exactly what a coordinated campaign is and how that’s
defined.
THE SENIOR DEPUTY PRESIDENT: Well, they all occurred around the same
time. Do you agree they all occurred around
MS DOOLEY: We accept that the officials attended those sites at those particular
times.
THE SENIOR DEPUTY PRESIDENT: 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 rights of entry arrangements?
MS DOOLEY: We would accept what’s in the evidence at the moment.”
[21] And further,xvi
“MS DOOLEY: Your Honour, I suppose in our final submission we would say that
there’s no evidence to support an order against any employees or members of the
union whatsoever, that there’s no evidence to support an order against the CFMEU or
officials of the CFMEU and that the applicant seems to be concerned with the union
officials’ presence at those sites. They’re entitled to be concerned about officials being
present at the site, but that does not mean that industrial action is threatened in any way
whatsoever.
THE SENIOR DEPUTY PRESIDENT: When he visited the Adelaide Oval site Mr
Garber - no, sorry, when he visited the Tonsley Park TAFE site, Mr Garber is alleged
[2013] FWC 9343
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to have said he was there to talk to the boys and show the guys the project. Should I
understand that “talk to the boys” you say meant to talk to the employees who were
members of the CFMEU?
MS DOOLEY: I would imagine that’s what that meant.”
[22] I was required to determine a position with respect to the s.418 application. That
section relevantly states:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or
employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be
organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.”
[23] In doing so, I reached various conclusions on the evidence before me.xvii Two final
conclusions were pivotal to my decision:xviii
“There is no evidence that the threat made at the Tonsley Park Flinders University site
extended beyond actions contemplated by the CFMEU officials. Had evidence of
employee involvement in the threats made against Lend Lease been provided to me a
different conclusion may have been available. It is clear from the evidence that the
CFMEU has organised industrial action in the past at other Lend Lease sites. Further,
I have concluded, from my knowledge of the building and construction industry, that,
if the CFMEU wishes to commence industrial action it has the capacity to organise that
action notwithstanding that its members have the ultimate ability to elect whether or
not to participate.
For these reasons I am satisfied that the CFMEU has threatened and may organise
industrial action by one or more employees that would not be protected industrial
action.
[24] Given that position, I referred to the Full Bench decision in MUA v Patrick Stevedores
Holdings Pty Ltdxix and concluded that, on that authority, the s.418 application must be
dismissed as the necessary jurisdiction had not been established.
The complaint of apprehended bias
[25] The CFMEU position here is that the matter heard on 31 October 2013 and 1
November 2013 was based on s.418. The CFMEU foreshadowed that it may argue that the
[2013] FWC 9343
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evidence did not go to entry rights being exercised under Part 3-4 of the FW Act. The
CFMEU concern was particularly directed at indications that I had concluded that the
CFMEU had breached Part 3-4 entry rights in the context of the s.508 action now initiated.
[26] The CFMEU referred me to the concept of apprehended bias in Heap v AIRC. In that
matter, there was no dispute that the test for the appearance of bias is:
““Whether a fair-minded lay observer might reasonably apprehend that the judge might
not bring an impartial and unprejudiced mind to the resolution of the question the
judge is required to decide”.”xx
[27] In that matter the Court was reviewing a decision of a Full Bench of the AIRC. The
Court stated:xxi
“In its decision of 2 August 2002, the Full Bench recited what it saw as the "particular
circumstances" of the case. It did not specify precisely which of these circumstances
led to its conclusion that the Senior Deputy President was disqualified on the ground of
apprehended bias. Nor did it say how it was that it came to that conclusion. It is clear
from its citation of the authorities referred to above that the Full Bench appreciated
that a decision-maker can quite properly draw attention to the problems in a party's
case, even in strong words, without causing a reasonable bystander to apprehend that
he or she may not bring an impartial and unprejudiced mind to the resolution of the
question. The vice found by the Full Bench must have arisen from either or both of the
circumstance that the words were spoken in private conference, albeit with the consent
of the parties, and the circumstance of the late stage of the proceeding at which the
conference occurred. That is apparent from the identification by the Full Bench of the
"particular circumstances" with which it was concerned. The former is more likely to
have weighed heavily in the Full Bench's view than the latter, because of the likelihood
that the privacy of the conference lent to the words a connotation and an air of menace
that they might not have had otherwise.
Once it is recognised that it was open to the Full Bench to hold that the element of
privacy caused the Senior Deputy President's words to give rise to an apprehension of
bias, it is necessary to acknowledge the expertise of the Full Bench in the area in
which it was dealing. Not only did each of the members of the Full Bench have the
skills and experience in the field of industrial relations that s 10(1)(b) of the WR Act
makes a prerequisite to appointment to the Commission, but each is in fact
experienced as a member of the Commission. Each is no doubt very familiar with the
manner in which the Commission operates, including the manner in which it deals
with applications relating to termination of employment, and with the exercise of the
functions of arbitration and conciliation. Each was prepared to say that the
combination of circumstances in the present case was such that a reasonable bystander
might have apprehended bias on the part of the Senior Deputy President. This Court
should give great weight to the view of the Full Bench, especially when it is informed
by such experience. If those steeped in the methods of the Commission regarded what
the Senior Deputy President did as outside the appropriate manner of exercising the
functions of arbitration and conciliation in a termination of employment proceeding, it
is a large step for this Court to say they were wrong.”
[28] And further,xxii
[2013] FWC 9343
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“.... Nor is it appropriate to decide whether the Full Bench ought to have refused leave
to appeal under s 45(1), choosing to await the outcome of the arbitration before the
Senior Deputy President. It is sufficient to point out that that course would have
permitted the Bank, if it had lost the arbitration, to use as one of its grounds of appeal
the allegation of apprehended bias on the part of the Senior Deputy President. It would
have enabled the Full Bench to have the whole case before it and, if it thought fit to do
so, to have decided the substantive issues itself or, if issues of credit were of
importance, to have directed that another member of the Commission arbitrate it
again.”
[29] The Lend Lease position was that the statements made in the hearings and the
conclusions in the decision of 1 November 2013 were all predicated on the evidence before
me in that matter and were not representative of any form of bias in this particular matter.
[30] Lend Lease referred me to Bissett C’s decision in Metro Trains Melbourne Pty Ltd v
ARTBIU and othersxxiii where the Commissioner recited the following principles:xxiv
“[25] In Oram v Derby Gem Pty Ltd a Full Bench of the Australian Industrial Relations
Commission considered the principles relevant to an application such as this:
[107] The test to be applied in Australia in determining whether a judicial
officer is disqualified by reason of the appearance of bias is whether a fair-
minded lay observer might reasonably apprehend that the judge might not
bring an impartial and unprejudiced mind to the resolution of the question the
judge is required to decide. In Laws v Australian Broadcasting Tribunal
Gaudron and McHugh JJ noted:
When suspected prejudgment of an issue is relied upon to ground the
disqualification of a decision-maker, what must be firmly established is
a reasonable fear that the decision-maker’s mind is so prejudiced in
favour of a conclusion irrespective of the evidence or arguments
presented to him or her.
[108] The relevant ground for disqualification is a reasonable apprehension that
the judicial officer will not decide the case impartially and without prejudice,
rather than that he or she will decide the case adversely to one party. Mere
predisposition or inclination for or against a particular argument or conclusion
is not sufficient. In The Minister for Immigration and Multicultural Affairs v
Jia Gleeson CJ and Gummow J, with whom Hayne J agreed, said:
Decision makers, including judicial decision makers, sometimes
approach their task with a tendency of mind or predisposition,
sometimes one that has been publicly expressed, without being accused
or suspected of bias. The question is not whether a decision-maker’s
mind is blank; it is whether it is open to persuasion. The fact that, in the
case of judges, it may be easier to persuade one judge of a proposition
than it is to persuade another does not mean that either of them is
affected by bias.
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The test which was applied both by French J and by the Full Court was
orthodox. It accords with the decisions of this court in Laws v
Australian Broadcasting Tribunal and Johnson v Johnson. The state of
mind described as bias in the form of prejudgment is one so committed
to a conclusion already formed as to be incapable of alteration,
whatever evidence or arguments may be presented. Natural justice does
not require the absence of any predisposition or inclination for or
against an argument or conclusion.
[109] Moreover, judicial officers have a duty not to accede too readily to a
disqualification application In Re J.R.L ex parte C.J.L 10, Mason J, in an oft-
quoted passage, stated:
[...]
In cases of this kind, disqualification is only made out by showing that
there is a reasonable apprehension of bias by reason of prejudgment and
this must be “firmly established”: Reg v Commonwealth Conciliation
and Arbitration Commission; Ex parte Angliss Group; Watson; Re
Lusink; Ex parte Shaw. Although it is important that justice must be
seen to be done, it is equally important that judicial officers discharge
their duty to sit and do not, by acceding too readily to suggestions of
appearance of bias, encourage parties to believe that by seeking the
disqualification of a judge, they will have their case tried by someone
thought to be more likely to decide the case in their favour.”
(footnotes omitted)
[110] Far from being inappropriate, the expression of a provisional view on a
particular issue or warning parties of the consequences of a provisional view
will typically be entirely consistent with the requirements of procedural
fairness. In Johnson v Johnson 11 Gleeson CJ, Gaudron, McHugh, Gummow
and Hayne JJ noted:
Whilst the fictional observer, by reference to whom the test is
formulated, is not to be assumed to have a detailed knowledge of the
law, or of the character or ability of a particular judge, the
reasonableness of any suggested apprehension of bias is to be
considered in the context of ordinary judicial practice. The rules and
conventions governing such practice are not frozen in time. They
develop to take account of the exigencies of modern litigation. At the
trial level, modern judges, responding to a need for more active case
management, intervene in the conduct of cases to an extent that may
surprise a person who came to court expecting a judge to remain, until
the moment of pronouncement of judgment, as inscrutable as the
Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring
both to trial and appellate proceedings, spoke of “the dialogue between
Bench and Bar which is so helpful in the identification of real issues
and real problems in a particular case.” Judges, at trial or appellate
level, who, in exchanges with counsel, express tentative views which
[2013] FWC 9343
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reflect a certain tendency of mind, are not on that account alone to be
taken to indicate prejudgment. Judges are not expected to wait until the
end of a case before they start thinking about the issues, or to sit mute
while evidence is advanced and arguments are presented. On the
contrary, they will often form tentative opinions on matters in issue, and
counsel are usually assisted by hearing those opinions, and being given
an opportunity to deal with them.
(footnotes omitted)
[111] In Kaycliff Pty Limited v Australia Broadcasting Tribunal, the Full Court
of the Federal Court observed:
For our part we respectfully concur in the view that expression by a
court or tribunal of its current view of an issue may be advantageous, on
occasions, rather than otherwise. The rules as to apparent bias must be
balanced against the desirability of a thoroughly fair contest and the
latter may positively favour a disclosure, without any equivocation, of
an opinion held by the court or tribunal at a particular stage of the
proceedings. In the absence of such disclosure, there may be a justified
resentment on the losing side, based on their not having been made
aware of the direction of the thinking of the court or tribunal on a
particular issue and not having been given a fair opportunity to turn it
into another path.
[112] In Richmond River Broadcasters Pty Limited v The Australian
Broadcasting Tribunal, Wilcox J referred to this passage and continued:
I respectfully agree with this comment. It is an every day event for
judges to indicate to counsel, during the course of hearing, their
impressions of a case, including their impressions of witnesses and of
the facts. They do so to assist counsel. It is always an advantage for
counsel to know the way in which the judge’s mind is working;
submissions may be targeted to the aspect of the case which is troubling
the judge. Where a judge takes this course nobody would suggest that
the judge ought then to be disqualified from concluding the case. The
reason is that the judge is merely expressing a tentative view and
inviting a response which he or she may take into account in
determining whether to adhere to, or abandon, that view in the final
decision. The readiness to listen and be persuaded is the critical matter.”
(references removed)
[31] Mr Dowd, for Fair Work Building and Construction advised that his instructions did
not extend to expressing a view on this matter but he suggested guidance may be found in the
High Court decision in British American Tobacco Australian Services Limited v Laurie.xxv In
that matter French CJ stated:xxvi
“The fact that a judge has expressed a strongly worded view at the outset of a hearing
does not prevent characterisation of that view as provisional. In such a case the
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reasonable apprehension of bias must be "firmly established" before prohibition will
issue. Sometimes the line of judgment is "ill-defined". On the other hand, a gratuitous
statement in a judgment given in one case adverse to a person not involved in that case
against whom a prosecution was pending, was sufficient to disqualify the judge who
made the statement from sitting on an appeal arising out of the prosecution.
The scrutiny required of claims of bias based on prior findings by a decision-maker
was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in
Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v
Australian Stevedoring Industry Board, Angliss and Shaw, said:
"When suspected prejudgment of an issue is relied upon to ground the
disqualification of a decision-maker, what must be firmly established is a
reasonable fear that the decision-maker's mind is so prejudiced in favour of a
conclusion already formed that he or she will not alter that conclusion
irrespective of the evidence or arguments presented to him or her." (emphasis
added)
The requirement that an apprehension of bias, based on judicial conduct, be "firmly
established" is consistent with the most recent decisions of this Court and gives
content to the requirement that an apprehension of bias, in that class of case, be
reasonable.
Much debate in this appeal turned on the extent of the knowledge attributable to the
fair-minded lay observer for the purpose of determining whether that observer would
reasonably apprehend bias. That knowledge does not extend to a knowledge of the law
that ordinary experience shows not to be the case. The question was discussed in
Johnson v Johnson, where the plurality said:
"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." (footnote omitted)
Kirby J also discussed the attributes of the fictitious bystander:
"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." (footnotes omitted)
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And further:
"a reasonable member of the public is neither complacent nor unduly sensitive
or suspicious." (footnote omitted)
I agree with the observation of Kirby J that a fair-minded lay observer would, before
forming a view about the existence of a reasonable apprehension of bias, take the
trouble to inform himself or herself to the extent necessary to make a fair judgment.
The interposition of the fair-minded lay person could never disguise the reality that it
is the assessment of the court dealing with a claim of apparent bias that determines
that claim. As Professor Olowofoyeku says:
"In the end, despite the pitch on objectivity and the view that the apprehensions
of bias must have an objective basis, it is the opinion of the reviewing court on
this issue that matters."
Professor Olowofoyeku has expressed the view that the judicial construct of the
informed observer no longer provides a reliable guide to decision-making on the issue
of apparent bias[89]. However, the utility of the construct is that it reminds the judges
making such decisions of the need to view the circumstances of claimed apparent bias,
as best they can, through the eyes of non-judicial observers. In so doing they will not
have recourse to all the information that a judge or practising lawyer would have. It
requires the judges to identify the information on which they are to make their
determinations. While it is necessary to be realistic about the limitations of the test, in
my opinion it retains its utility as a guide to decision-making in this difficult area.”
(references removed)
[32] I have reviewed the concerns of the CFMEU in the context of these decisions.
[33] Two other factors are relevant to my considerations. The first is that I was required to
determine the s.418 application which then necessitated consideration of the evidence before
me, and findings which formed the basis for my ultimate decision to refuse that application. It
was the unchallenged evidence given to me in that matter which gave rise to the s.508
concern.
[34] Secondly, s.508 states:
“508 FWC may restrict rights if organisation or official has misused rights
(1) The FWC may restrict the rights that are exercisable under this Part by an
organisation, or officials of an organisation, if the FWC is satisfied that the
organisation, or an official of the organisation, has misused those rights.
Note: Only a Vice President, Deputy President or Full Bench may take action under
this subsection (see subsections 612(2) and 615(1)).
(2) The action that the FWC may take under subsection (1) includes the following:
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(a) imposing conditions on entry permits;
(b) suspending entry permits;
(c) revoking entry permits;
(d) requiring some or all of the entry permits that might in future be issued in relation
to the organisation to be issued subject to specified conditions;
(e) banning, for a specified period, the issue of entry permits in relation to the
organisation, either generally or to specified persons;
(f) making any order it considers appropriate.
(3) The FWC may take action under subsection (1):
(a) on its own initiative; or
(b) on application by an inspector.
(4) Without limiting subsection (1), an official misuses rights exercisable under this
Part if:
(a) the official exercises those rights repeatedly with the intention or with the effect of
hindering, obstructing or otherwise harassing an occupier or employer; or
(b) in exercising a right under Subdivision B of Division 2 of this Part, the official
encourages a person to become a member of an organisation and does so in a way that
is unduly disruptive:
(i) because the exercise of the right is excessive in the circumstances; or
(ii) for some other reason.”
[35] The decision to take action under this section was of my own initiative. My concern
about possible misuse of entry rights was raised with the parties from the very outset, on the
basis of the information provided in support of the application.
[36] The Fair Work Commission very rarely invokes the capacity to act of its own motion
under s.508. I have adopted the position that an action of this nature should only be taken in
circumstances where the material before a particular member is such that it gives rise to a
substantial concern about the possible misuse of entry rights. The enquiry that must then
ensue must go to establishing whether, on the evidence then presented to the Commission,
that substantial concern is made out such that a misuse of entry rights is established. Hence, I
consider that 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.
The specific concerns
[2013] FWC 9343
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[37] The CFMEU refers to my comments in the 1 November 2013 hearing in the following
terms:xxvii
“THE SENIOR DEPUTY PRESIDENT: You’re probably both aware that my normal
practice is not to order transcript. In 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. Mr Earls, am I correct in understanding you propose to call Mr
Crabb?
....
THE SENIOR DEPUTY PRESIDENT: Can I take it you don’t dispute the evidence
that there was a coordinated campaign of visits to the four sites involving Lend Lease?
....
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Earls and Ms Dooley, I
will reserve a decision in this matter. I am conscious in doing so of the obligations
established by section 419 and section 420, so that you shouldn’t expect there to be a
long delay between the conclusion of this matter and my decision. Ms Dooley, there
is one other matter which goes back to the observations I made yesterday. The
evidence before me today has not been challenged. The evidence indicates that there
were numerous breaches of the right to entry provisions of Part 3 4 of the Act. Section
508 allows the commission to inquire into circumstances such as that either on an
application or of its own motion.
I’m going to review the evidence before me in that respect. If I decide that 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 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 to future behaviour. How extensive any advice needs to be is a matter for
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
that in doing so I would have regard to any advice provided to me by the CFMEU over
the next week or so. I’ll adjourn the matter on that basis.”
[38] Further, the CFMEU has drawn the following paragraphs of my decision to my
attention in support of its concerns about apprehended bias:xxviii
[2013] FWC 9343
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“Evidence was given by the Lend Lease Site 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 of 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.
....
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.
The Lend Lease position is that the CFMEU actions on 30 October 2013 represented
breaches of right of entry requirements. More particularly relative to this application,
that these actions were a coordinated approach directed at requiring Lend Lease to
engage full-time CFMEU non-working shop stewards on each site. Lend Lease
asserted that the CFMEU actions represented a threat clearly directed at the Tonsley
Park Flinders University site, but with implicit effect at the other sites, to institute
industrial action relative to work covered by the Baulderstone Pty Ltd and CFMEU
South Australian Enterprise Agreement 2013-2017. Lend Lease asserted that it could
reasonably be inferred that the CFMEU's actions would embroil its employees and
those of subcontractors such that employees should be included in the Order which
must follow in the event that the requirements of s.418(1) were met.
....
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. Whilst I think it likely
that the CFMEU objective was to achieve Lend Lease agreement to its request for full
time non-working CFMEU shop stewards, this is not certain such that I can discern a
clear common purpose for the visits.
....
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.
They made various demands and clearly indicated they would stop the project unless
their flag display requirements were met. The union’s actions cannot be regarded as
trivial and were inconsistent with Ms Dooley's assertion that the CFMEU's general
approach was to obtain instructions from its members before initiating action.”
[39] In reviewing these statements I have taken the provisions of Part 3-4 into account.
[40] Section 478 states:
[2013] FWC 9343
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“478 Guide to this Part
This Part is about the rights of officials of organisations who hold entry permits to
enter premises for purposes related to their representative role under this Act and
under State or Territory OHS laws.
Division 2 allows permit holders to enter premises to investigate suspected
contraventions of this Act and fair work instruments. The Division makes special
provision in relation to TCF award workers. Division 2 also allows permit holders to
enter premises to hold discussions with certain employees and TCF award workers. In
exercising rights under Division 2, permit holders must comply with the requirements
set out in the Division.
Division 3 sets out requirements for exercising rights under State or Territory OHS
laws.
Division 4 prohibits certain action in relation to the operation of this Part.
Division 5 sets out powers of the FWC in relation to the operation of this Part.
Division 6 deals with entry permits, entry notices and certificates.”
(the underlining is mine)
[41] Part 3-4 then details the circumstances under which permit holders can enter an
employer’s premises, the reasons for those entries, the behaviours then required of permit
holders and the notice required before an entry.
[42] The evidence before me indicated that CFMEU officials, some of them I know to be
permit holders, had entered the Lend Lease sites without the requisite notice, had behaved in a
manner not permitted by Part 3-4 and had done so in a deliberate and coordinated manner.
Further, that the officials indicated their behaviour would continue.
[43] Accordingly, I am satisfied that my observations in the hearings, and in the 1
November 2013 decision, were adequately based on the evidence before me at that time.
[44] Further, my position relative to the s.508 enquiry was made clear in correspondence to
the parties of 11 November 2013 in the following terms:
“On 30 October 2013 Lend Lease lodged an application pursuant to s.418 of the Fair
Work Act 2009. Various affidavits in support of that application were subsequently
filed.
The s.418 application was the subject of consideration on 31 October 2013 and 1
November 2013. A decision ([2013] FWC 8659, PR544114) was published on 1
November 2013.
Consistent with the advice I provided to the Construction, Forestry, Mining and
Energy Union (CFMEU) on 31 October 2013, the information provided to me
[2013] FWC 9343
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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. A Notice of Listing
to this effect is attached. In the event that a party or person seeks to participate in this
hearing by video-link, my office should be advised as a matter of urgency.
I also attach to this advice the following material:
• Directions relative to the hearing on 21 November 2013.
• A copy of my decision of 1 November 2013.
• A copy of the transcript of proceedings in matter No C2013/6599.”
[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. Those proceedings will be relisted.
[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.
OF FAIR WORK COR OMMISSION AUSTRALIA THE SEAT SENIOR DEPUTY PRESIDENT
[2013] FWC 9343
17
Appearances:
R Reitano counsel for the Construction, Forestry, Mining and Energy Union.
T Earls for Lend Lease Building Contractors Pty Ltd.
S Dowd counsel for Fair Work Building and Construction.
Hearing details:
2013.
Adelaide:
November 21
Printed by authority of the Commonwealth Government Printer
Price code C, PR545072
i [2013] FWC 8659
ii [2003] FCAFC 36
iii Transcript, 31 October 2013, paras 49 and 50
iv Exhibit L1
v Exhibit L1, para 10
vi Exhibit L2, para 5
vii Exhibit L2, para 6
viii Exhibit L3, para 8
ix Exhibit L3, para 10
x Exhibit L3, para 15
xi Exhibit L4, para 7
xii Exhibit L4, para 15
xiii Transcript, 1 November 2013, paras 137 and 138
xiv Transcript, 1 November 2013, para 269
xv Transcript, 1 November 2013, paras 303 - 308
xvi Transcript, 1 November 2013, paras 312 - 314
xvii [2013] FWC 8659, paras 20 - 27
xviii [2013] FWC 8659, paras 28 and 29
xix [2013] FWCFB 7736
xx [2003] FCAFC 36, para 17 (The quotation is from the judgement of Gleeson, CJ, Gaudron, McHugh, Gummow and Hayne
JJ in Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11])
xxi [2003] FCAFC 36, paras 29 and 30
xxii [2003] FCAFC 36, para 34
xxiii [2013] FWC 4034
xxiv [2013] FWC 4034, para 25
xxv [2011] HCA 2
xxvi [2011] HCA 2, paras 44 - 48
[2013] FWC 9343
18
xxvii Transcript, 1 November 2013, paras 84, 303 and 332 - 334
xxviii [2013] FWC 8659, paras 5, 16, 17, 22, 26
