1
Fair Work Act
2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union-Construction
and General Division, Queensland Northern Territory Divisional Branch
(RE2018/837, RE2018/881, RE2018/885)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 18 OCTOBER 2018
Applications for entry permits for John Tucker, Shaun James Desmond and Matthew Parfitt –
application for recusal – apprehension of bias – no recusal.
[1] The Construction, Forestry, Maritime, Mining and Energy Union – Construction and
General Division, Queensland Northern Territory Divisional Branch (CFMMEU) has applied
for entry permits under s.512 of the Fair Work Act 2009 (the FW Act) for John Tucker, Shaun
Desmond and Matthew Parfitt.
[2] A mention was held on 27 August 2018, at which the CFMMEU submitted that I
should recuse myself from dealing with the applications.
[3] The CFMMEU subsequently filed written submissions in support of its recusal
application and a hearing was held on 4 October 2018.
[4] The CFMMEU submitted that I should recuse myself from hearing the application on
the basis that I had, on 17 March 2016, ‘re-tweeted’ a ‘tweet’ on Twitter by the then Minister
for Employment, Senator Michaelia Cash, which included the following text:
‘Labor gets millions from the CFMEU. That’s why they’re against restoring the ABCC.
Bring back the ABCC.’
[5] The tweet also contained an image of Bill Shorten, the Leader of the Opposition,
dressed as a cricketer and holding a bat in the air. The following text was superimposed on the
image:
‘CFMEU notches up 100 members before courts
A CENTURY of SHAME’
[6] The CFMMEU submitted that:
‘The tweet expressly conveyed a message that was very critical of the CFMMEU. That
is, the CFMMEU should be ashamed of its conduct, and the ALP ashamed of its
affiliation with the ALP. Further, the tweet carried with it the imputation that because
[2018] FWC 6462 [Note: An appeal pursuant to s.604 (C2018/6039) was
lodged against this decision.][Note: This decision has been quashed - refer
to Full Bench decision dated 17 January 2019 [[2019] FWCFB 214]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb214.htm
[2018] FWC 6462
2
the CFMMEU had members currently involved in legal proceedings (as opposed to
having acted unlawfully), it needed to be more closely scrutinised by a new regulatory
body’.
[7] The CFMMEU submitted that re-tweeting the Minster’s tweet creates a reasonable
apprehension of bias on my part, that is, that a fair-minded lay observer might reasonably
apprehend that I might not bring a fair, impartial and independent mind to the determination
of these applications for entry permits.
Relevant principles
[8] The Commission has generally adopted the approach to apprehended bias set out by
the High Court in Ebner.1 The majority in that judgement said:
‘Where, in the absence of any suggestion of actual bias, a question arises as to the
independence or impartiality of a judge (or other judicial officer or juror), as here, the
governing principle is that, subject to qualifications relating to waiver (which is not
presently relevant) or necessity (which may be relevant to the second appeal), a judge
is disqualified if a fair-minded lay observer might reasonably apprehend that the judge
might not bring an impartial mind to the resolution of the question the judge is
required to decide. That principle gives effect to the requirement that justice should
both be done and be seen to be done, a requirement which reflects the fundamental
importance of the principle that the tribunal be independent and impartial. It is
convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the
importance of the basic principle, that the tribunal be independent and impartial. So
important is the principle that even the appearance of departure from it is prohibited
lest the integrity of the judicial system be undermined. There are, however, some other
aspects of the apprehension of bias principle which should be recognised. Deciding
whether a judicial officer (or juror) might not bring an impartial mind to the resolution
of a question that has not been determined requires no prediction about how the judge
or juror will in fact approach the matter. The question is one of possibility (real and
not remote), not probability. Similarly, if the matter has already been decided, the test
is one which requires no conclusion about what factors actually influenced the
outcome. No attempt need be made to inquire into the actual thought processes of the
judge or juror.
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.’2 [references
omitted]
[2018] FWC 6462
3
[9] Also relevant is the statement made by Mason J (as his Honour then was) in Re JRL;
Ex parte CJL:
‘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.’3
[10] I also consider the following statement made by Dawson J in the same case to be
relevant to this matter:
‘But the whole of the circumstances must be considered and such a conclusion must be
firmly established and should not be reached lightly. Moreover, the whole of the
circumstances are not confined to the conduct said to afford reasonable grounds for
suspecting a lack of impartiality. They include what was done by the judge
subsequently, which may be sufficient to eradicate any reasonable apprehension of
bias notwithstanding an earlier lapse in the observance of proper procedures.’4
Consideration
[11] The ‘re-tweet’ was originally brought to my attention on 27 July 2017, during a
mention in relation to matter no. RE2017/793. I was concerned at that time that there may
have been grounds for a reasonable apprehension of bias, and so I arranged for the application
to be dealt with by another member of the Commission.
[12] However, since 27 July 2017, I have dealt with over 50 matters to which the
CFMMEU (or its predecessor, the CFMEU) was a party (not including Full Bench matters
where I was not the presiding Member). In none of these matters has there been any
suggestion that I have acted other than impartially.
[13] I consider that this is sufficient to eradicate any reasonable apprehension of bias in
relation to the applications currently under consideration. Accordingly, I have decided not to
recuse myself from dealing with these applications.
[14] The applications will be relisted for directions.
SENIOR DEPUTY PRESIDENT
GON MMISSION WORK IR WORKS THE SEAL( THE
[2018] FWC 6462
4
Appearances:
R Reitano of counsel, with J Kennedy, solicitor, for Construction, Forestry, Maritime, Mining
and Energy Union-Construction and General Division, Queensland Northern Territory
Divisional Branch.
Hearing details:
Sydney.
2018.
October 4.
Printed by authority of the Commonwealth Government Printer
PR701563
1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
2 Ibid [6]-[8].
3 (1986) 161 CLR 342, 352.
4 Ibid 371-2.
