1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/6039)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT SAUNDERS
SYDNEY, 17 JANUARY 2019
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has
lodged an appeal, for which permission to appeal is required, against a decision of Senior
Deputy President Hamberger issued on 18 October 20181 (Decision). The Decision was made
by the Senior Deputy President in the course of dealing with applications made by the
CFMMEU pursuant to s 512 of the Fair Work Act 2009 (FW Act) for entry permits to be
issued to three of its officials (John Tucker, Shaun Desmond and Matthew Parfitt),2 and
specifically concerned an application by the CFMMEU that the Senior Deputy President
should recuse himself from hearing the applications on the ground of a reasonable
apprehension of bias. This application was rejected in the Decision. The CFMMEU contends
in its appeal that the Decision was attended by appealable error.
[2] The CFMMEU’s recusal application was founded on the fact that, on 17 March 2016,
the Senior Deputy President had “retweeted” a “tweet” originally issued by the then Minister
for Employment, Senator Michaelia Cash. A “tweet” is a message sent using Twitter, which is
an online news and social networking service. When a person “retweets” someone else’s
“tweet”, it is reposted on the person’s online Twitter profile and sent to followers of that
profile. The “tweet” posted by Senator Cash and “retweeted” by the Senior Deputy President
contained the message in text: “Labor gets millions in donations from the CFMEU. That’s
why they’re against restoring the ABCC. Bring back the #ABCC”. Beneath this appeared an
image of Bill Shorten, the Leader of the Opposition, dressed as a cricketer and holding a
cricket bat and helmet in the air. Superimposed at the top of the image was a newspaper
headline which read “CFMEU notches up 100 members before courts”, and at the bottom
were the words “A Century of Shame”.
[3] The “retweet” appeared on the Senior Deputy President’s profile until 27 July 2017,
and could be seen by anyone who accessed his Twitter profile. On that date, the CFMMEU3
1 [2018] FWC 6462
2 Matters RE2018/837, RE2018/881 and RE2018/885
3 Then named the Construction, Forestry, Mining and Energy Union. For convenience we will refer to it as the CFMMEU
throughout this decision.
[2019] FWCFB 214 Note: An application for judicial review of this matter
was filed and discontinued/ withdrawn with the Federal Court.
DECISION
E AUSTRALIA FairWork Commission
https://www.comcourts.gov.au/file/FEDERAL/P/QUD100/2019/order_list
2
made an application in chambers for the Senior Deputy President to recuse himself from
dealing with an earlier application for the issue of an entry permit to one of the CFMMEU’s
officials. The “retweet” appears to have been removed from the Senior Deputy President’s
Twitter profile shortly after the recusal application was made in chambers. The Senior Deputy
President did not issue any decision recusing himself, but the entry permit application in
question was shortly afterwards re-allocated to another member of the Commission for
determination. It may be noted in this connection that the Senior Deputy President was at that
time and remains the head of the Commission’s Organisations Panel, and as such has
delegated authority to allocate to himself and other members of the Commission in the Panel
applications concerning registered organisations, including applications for the issue of entry
permits pursuant to s 512 of the FW Act.
[4] The CFMMEU’s application for the Senior Deputy President to recuse himself from
dealing with the current entry permit applications was the subject of a formal hearing on 4
October 2018. The CFMMEU had earlier filed written submissions in support of its recusal
application on 10 September 2018. The CFMMEU submitted that the original “tweet”
expressed a partisan political view about the CFMMEU and, less relevantly, about the
Australian Labor Party, and that the “tweet” conveyed a message that was very critical of the
CFMMEU. The fair-minded lay observer, it was submitted, would be concerned that the
“retweet” without any qualification constituted the endorsement of a view that the CFMMEU
engaged in unlawful and shameful conduct and that those who associate with the CFMMEU
(such as its officials) support such conduct. This was logically connected to the matter to be
determined by the Senior Deputy President, namely the fitness of the three officials in
question to hold entry permits. Additionally, the CFMMEU submitted, the fair-minded lay
observer would reasonably apprehend that, in circumstances where the Senior Deputy
President had previously recused himself from dealing with an entry permit application, the
same result would apply in the current matters.
[5] In the Decision, the Senior Deputy President referred to two High Court authorities
concerning reasonable apprehension of bias, namely Ebner v Official Trustee in Bankruptcy4
(Ebner) and Re JRL; Ex parte CJL5 (JRL). Relevantly in relation to the latter decision, the
Senior Deputy President quoted the following passage from the judgment of Dawson J:
“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.”
[6] The Senior Deputy President then said:
“[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.
4 [2000] HCA 63, 205 CLR 337
5 [1986] HCA 39, 161 CLR 342
3
[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.”
Submissions in the appeal
[7] The CFMMEU submitted that:
it had been denied procedural fairness, in that the basis upon which its recusal
application was determined was not raised with it at the hearing with the result that
it was deprived of the opportunity to address the matters dealt with in paragraphs
[11]-[13] of the Decision;
the Senior Deputy President had in fact dealt with a total of 47 substantive matters
in which the CFMMEU was identified as a party since 27 July 2017, of which 38
were not opposed or dealt with on the papers;
of the remaining nine matters, one erroneously named the CFMMEU as party, two
had been decided by the Senior Deputy President alone and adversely to the
interests of the CFMMEU, and six were decided by Full Benches which included
the Senior Deputy President;
the vast majority of the 47 matters were administrative in nature, did not involve
the CFMMEU having any opportunity or need to voice an objection, and did not
require any real exercise of discretion, so that the reference in the Decision to
“over 50 matters…eradicated any reasonable apprehension of bias” was an
exaggeration;
the fair-minded lay observer would be aware that the Senior Deputy President
considered that there was a reasonable apprehension of bias when he recused
himself on 27 July 2017, and nothing which occurred since then was capable of
eradicating the fact of the publication of the “retweet”;
in quoting from the judgment of Dawson J in JRL, the Senior Deputy President
failed to include the remainder of the passage in which Dawson J stated that where
the apprehended bias arose from an interest or preconception existing
independently of the case, it might well be ineradicable; and
the appeal should be upheld, the Decision quashed, and the substantive application
allocated to be dealt with by another member of the Commission.
[8] The CFMMEU annexed to its written appeal submissions a schedule identifying the 47
matters involving the CFMMEU which the Senior Deputy President had dealt with (either
sitting alone or as part of a Full Bench) since 27 July 2017.
4
[9] The Australian Building and Construction Commissioner (ABCC), who had in relation
to the substantive applications given notice of his intention to intervene and make
submissions pursuant to s 110(3) of the Building and Construction Industry (Improving
Productivity) Act 2016, declined to make any submissions in the appeal.
Consideration
[10] We consider that the CFMMEU’s contention that it was denied procedural fairness in
the proceedings before the Senior Deputy President must be accepted. It is clear from the
Decision that the CFMMEU’s recusal application was dismissed on the sole basis that the fact
that the Senior Deputy President had dealt with a large number of matters to which the
CFMMEU was a party since 27 July 2017 without complaint as to his impartiality was
sufficient to eradicate any reasonable apprehension of bias. It is equally clear that the
possibility that the CFMMEU’s recusal application might be determined on this basis was not
raised by the Senior Deputy President directly or indirectly at the hearing, nor did anything
contained in the CFMMEU’s written or oral submissions form any foundation for deciding
the matter on that basis. We are satisfied that, had this issue been raised at the hearing with
the CFMMEU, there were a range of significant submissions it may have made in response.
In these circumstances, we consider it appropriate to grant permission to appeal, uphold the
appeal, and quash the Decision.
[11] That renders it necessary for the CFMMEU’s recusal application to be re-determined.
The CFMMEU accepted that it was open to us to re-determine the recusal application based
upon the submissions and evidence at first instance and the appeal submissions. We consider
that is a more convenient and expeditious course than remitting the recusal application to the
Senior Deputy President for re-determination.
[12] The principles applicable to an application for recusal based upon a reasonable
apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and
McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as
relevant to the CFMMEU’s recusal application:
the governing principle is that a decision-maker is disqualified if a fair-minded lay
observer might reasonably apprehend that the decision-maker might not bring an
impartial mind to the resolution of the question the decision-maker is required to
decide;6
deciding whether a decision-maker might not bring an impartial mind to the resolution
of a question that had not yet been determined is a question of possibility (real and not
remote), not one of probability or prediction;7
the application of the apprehension of bias principle requires two steps: (1)
identification of what it is said might lead the decision-maker to decide a case other
than on its legal and factual merits; and (2) an articulation of the logical connection
between the matter and the feared deviation from the course of deciding the case on its
merits;8
6 Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6]
7 Ibid at [7]
8 Ibid at [8]
5
only once these two steps are undertaken can the reasonableness of the asserted
apprehension of bias be assessed;9 and
it is not possible to state in a categorical form the circumstances in which a decision-
maker may properly decline to sit, since relevant circumstances will vary.10
[13] Applying the Ebner two-step approach, the CFMMEU firstly relies upon the Senior
Deputy President’s “retweet” of 17 March 2016 as the matter which might lead the fair-
minded lay observer to apprehend that the Senior Deputy President might not bring an
impartial mind to the resolution of the question of whether Messrs Tucker, Desmond and
Parfitt should be issued with entry permits pursuant to s 512 of the FW Act. We will assume
in the CFMMEU’s favour, without deciding, that the Senior Deputy President’s “retweet” of
Senator Cash’s original “tweet” constituted an endorsement of the opinions expressed in that
“tweet”. However it remains necessary to identify the nature of the opinions expressed. The
text above the image may be characterised as critical of Mr Shorten and the Australian Labor
Party on the basis of an allegation that their opposition to the reintroduction of the ABCC (a
live issue at the time the “tweet” was issued) was motivated by the acceptance of substantial
donations from the CFMMEU. The image beneath the text confirms that the primary target of
the criticism in the “tweet” was Mr Shorten. The cricketing imagery and the metaphor “A
Century of Shame” are explained by the headline “CFMEU notches up 100 members before
courts” appearing at the top of the image. The headline relates to the fact that a large number
of the CFMMEU’s officials and members had been the subject of proceedings in the courts
for contraventions of civil remedy provisions of the FW Act and other Commonwealth
legislation. In this context the “Shame” reference may be regarded as targeted in a subsidiary
way at the CFMMEU. The CFMMEU contends that the “Shame” reference may also be read
as directed at “those who associate with the CFMMEU (such as its officials)”, but we do not
consider that it may reasonably be read in that way except perhaps in relation to those
officials and members who constituted the “100 members before courts”.
[14] In relation to the second Ebner step, the CFMMEU contends that the necessary
“logical connection” is that because the Senior Deputy President had endorsed the view that
the CFMMEU and all who are associated with it were shameful and to be condemned, the
fair-minded lay observer would reasonably apprehend that he could not bring an impartial
mind to the question of whether Messrs Tucker, Desmond and Parfitt were fit and proper
persons to be issued with entry permits.
[15] Once the nature of the “retweeted” opinion of Senator Cash is properly characterised,
we do not consider that the “logical connection” sought to be drawn by the CFMMEU
between the “retweet” and the matters to be determined in the substantive application before
the Senior Deputy President is sustainable. Section 512 of the FW Act empowers the
Commission, on application by an organisation, to issue an entry permit to an official of that
organisation if the Commission “is satisfied that the official is a fit and proper person to hold
the entry permit”. Section 513(1) provides:
513 Considering application
9 Ibid at [8]
10 Ibid at [21]; see also Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288 at 299: “…each case must be
determined by reference to its particular circumstances”.
6
(1) In deciding whether the official is a fit and proper person, the FWC must take into
account the following permit qualification matters :
(a) whether the official has received appropriate training about the rights and
responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an
industrial law;
(c) whether the official has ever been convicted of an offence against a law of
the Commonwealth, a State, a Territory or a foreign country, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional
damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay
a penalty under this Act or any other industrial law in relation to action taken
by the official;
(e) whether a permit issued to the official under this Part, or under a similar
law of the Commonwealth (no matter when in force), has been revoked or
suspended or made subject to conditions;
(f) whether a court, or other person or body, under a State or Territory
industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for
industrial or occupational health and safety purposes that the official
had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of
entry for industrial or occupational health and safety purposes under
that law;
(g) any other matters that the FWC considers relevant.
[16] Section 514 prohibits the Commission from issuing an entry permit to an official who
is currently the subject of a suspension or disqualification imposed by a court or other person
or body applying to the official’s exercise of, or preventing the official from exercising or
applying for, a right of entry for industrial or occupational health and safety purposes under a
State or Territory industrial or OHS law. Section 515 provides that the Commission may
impose conditions on an entry permit when it is issued, taking into account the permit
qualification matters in s 513(1).
7
[17] The determination of the applications for entry permits for Messrs Tucker, Desmond
and Parfitt therefore requires an assessment as to whether they are fit and proper persons to
hold entry permits. The fit and proper person test is “necessarily concerned with the personal
characteristics of the person for whom the issue of an entry permit is sought”.11 The permit
qualification matters required to be taken into account in s 513(1)(a)-(f) are all concerned with
“matters personal to the official for whom the issue of an entry permit is sought”.12 As to s
513(1)(g), it is for the Commission to decide what matters are relevant and to be taken into
account, and the Commission is not obliged to take into account wider issues concerning the
applicant organisation’s conduct and history of contraventions, or those of its other officials.13
Similarly, ss 514 and 515 are concerned with matters personal to the official in question.
[18] The “retweeted” opinion of Senator Cash contained no direct criticism of Messrs
Tucker, Desmond and Parfitt either generally or specifically in relation to their suitability to
hold entry permits. As earlier stated, we do not consider that the “tweet” can be read so
broadly as to be critical of any person who associates with the CFMMEU. It was not
suggested by the CFMMEU that Messrs Tucker, Desmond and Parfitt were included in the
“100 members before courts” referred to in the “tweet”. For these reasons, we do not consider
that the fair-minded lay observer might reasonably apprehend on the basis of the Senior
Deputy President’s “retweet”, which was primarily directed at Mr Shorten and in a subsidiary
way at the CFMMEU, that he might not bring an impartial mind to the question of whether
Messrs Tucker, Desmond and Parfitt were fit and proper persons to hold entry permits.
[19] Our conclusion on that score is fortified by the fact that the Senior Deputy President
has, since the “retweet” was taken down, decided a number of matters concerning the
CFMMEU and/or its officials without any complaint about his impartiality. Although, as the
CFMMEU submitted, many of these matters were not contentious and were merely
administrative in nature, a number of them were not. The schedule of matters annexed to the
CFMMEU’s written submissions shows, for example, that the Senior Deputy President sat as
a member of Full Benches in a number of significant and highly contentious appeals which
were decided in favour of the CFMMEU. The Senior Deputy President has also sat alone on a
number of contentious matters involving the termination of enterprise agreements, and
specifically in respect of Messrs Tucker, Desmond and Parfitt exercised in their favour the
discretion in s 516(2) to extend the operation of their existing expired entry permits pending
the determination of their applications for new permits. No recusal application was made by
the CFMMEU in respect of any of these matters, nor did the CFMMEU appeal or seek
judicial review in respect of any of these decisions which were decided adversely to its
interests on the grounds that there was any actual or perceived lack of impartiality on the part
of the Senior Deputy President. We consider that the fair-minded observer, who would be
taken to be aware of the objective background history,14 would not reasonably apprehend that
the Senior Deputy President might not impartially decide the current matters concerning
Messrs Tucker, Desmond and Parfitt.
11 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014]
FWCFB 5947 at [22]
12 Ibid at [24]
13 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC
169, 247 FCR 138 at [66]-[70]
14 See Webb v The Queen [1994] HCA 30, 181 CLR 41 at 67-68 per Deane J; Laws v Australian Broadcasting Tribunal
[1990] HCA 31, 170 CLR 70 at 95 per Deane J; Kartinyeri v The Commonwealth [1998] HCA 52, 156 ALR 300 at [52]
8
[20] In reaching this conclusion, we do not accept the CFMMEU’s submission that this
history may not be taken into account in determining whether there is a reasonable
apprehension of bias or that, to the extent that the “retweet” may (contrary to our earlier
conclusion) have given rise to a reasonable apprehension of bias, this was necessarily
ineradicable by consequent conduct. As was made clear in Ebner, all of the relevant
circumstances need to be taken into account, and whether a statement or conduct on the part
of a decision-maker creates an ineradicable reasonable apprehension of bias must be assessed
by reference to the totality of the circumstances. As was stated in Johnson v Johnson15 (albeit
in relation to a different factual scenario):
“No doubt some statements, or some behaviour, may produce an ineradicable
apprehension of prejudgment. On other occasions, however, a preliminary impression
created by what is said or done may be altered by a later statement. It depends upon
the circumstances of the particular case.”16
[21] We do not consider that the full passage from the judgment of Dawson J in JRL
referred to in the Decision and the CFMMEU’s submissions stands for any different principle.
Dawson J said:
“It is an understandable tendency to assume the existence of a reasonable basis for
supposing bias where there is, as in this case, an apparent departure from the proper
standards of judicial behaviour. But the whole of the circumstances must be considered
and such a conclusion must be firmly established and should not be reached lightly:
Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss
Group (1969) 122 CLR 546, at pp 553-554; Reg. v. Watson; Ex parte
Armstrong [1976] HCA 39; (1976) 136 CLR 248, at p 262; Reg. v. Lusink; Ex parte
Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51. 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. It is clear
that an initial failure to hear a party or to allow him to put his case may be cured by
giving him an appropriate opportunity to be heard at a later stage. See Ridge v.
Baldwin [1963] UKHL 2; (1964) AC 40, at pp 99, 101, 125, 129. It seems to me to
follow that it must also be possible to remove an apprehension of bias on the part of a
judge which might otherwise arise out of the failure to hear a party. After all, that kind
of bias is not bias through interest or preconceptions existing independently of the
case. Suspicion of bias of the latter kind, where there are grounds for it, may well be
ineradicable. See Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne
Stevedoring Co. Pty. Ltd.[1953] HCA 22; (1953) 88 CLR 100, at p 116. Here the
suggested bias is an inability to act impartially which is said to have been
demonstrated by the fact that representations were made to, or evidence was heard
before, the judge in the absence of the parties. Remembering that both parties were
absent at the time, it does not seem to me to have been a situation which was
15 [2000] HCA 48, 201 CLR 488
16 Ibid at [14] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
9
necessarily incapable of correction either as regards fairness or as regards the
appearance as well as the fact of impartiality.”17
[22] We also reject the CFMMEU’s submission that the Senior Deputy President made a
decision to recuse himself on 27 July 2017 on the ground of reasonable apprehension of bias
by reason of the “retweet”. There is no record of any such decision having been made (as
distinct from a decision on the part of the Senior Deputy President, as head of the
Organisations Panel, to simply re-allocate the matter). Paragraph [11] of the Decision
confirms that the Senior Deputy President did not reach any final conclusion concerning the
recusal application made at that time. We consider that this was a situation of the type referred
to in Ebner as follows:
“[20] This is not to say that it is improper for a judge to decline to sit unless the judge
has affirmatively concluded that he or she is disqualified. In a case of real doubt, it
will often be prudent for a judge to decide not to sit in order to avoid the
inconvenience that could result if an appellate court were to take a different view on
the matter of disqualification. However, if the mere making of an insubstantial
objection were sufficient to lead a judge to decline to hear or decide a case, the system
would soon reach a stage where, for practical purposes, individual parties could
influence the composition of the bench. That would be intolerable.”18
[23] Accordingly the CFMMEU’s submission that there was no basis for the Senior Deputy
President to depart from his 27 July 2017 recusal decision does not arise for consideration.
[24] For the reasons given, the CFMMEU’s recusal application is dismissed. The Senior
Deputy President may properly continue to hear and determine the applications for entry
permits to be issued to Mr Tucker, Mr Desmond and Mr Parfitt. We emphasise that in
reaching this conclusion, it is not our intention to endorse the Senior Deputy President’s
conduct in “retweeting” Senator Cash’s politically contentious tweet. It is not generally
appropriate for members of the Commission to express publicly views about matters of party-
political controversy.
Orders
[25] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 6462) is quashed.
(4) The application for the recusal of Senior Deputy President Hamberger in
matters RE2018/837, RE2018/881 and RE2018/885 is rejected.
17 [1986] HCA 39, 161 CLR 342 at 371-2
18 [2000] HCA 63, 205 CLR 337 at [20] per per Gleeson CJ, McHugh, Gummow and Hayne JJ
10
VICE PRESIDENT
Appearances:
R. Reitano of Counsel and J. Kennedy for the Construction, Forestry, Maritime, Mining and
Energy Union.
Hearing details:
2018.
Sydney:
19 December.
Printed by authority of the Commonwealth Government Printer
PR703842
OF THE FAIR WORK MISSION THE
