Arkwood Organic Recycling Pty Ltd T/A Arkwood Organic RecyclingvTransport Workers' Union of Australia, Union of Employees (Queensland Branch

[2012] FWA 8915

FAIR WORK AUSTRALIA

DECISION (2)

Fair Work Act 2009
s.603 - Application to vary or revoke a FWA decision

Arkwood Organic Recycling Pty Ltd T/A Arkwood Organic Recycling
v
Transport Workers' Union of Australia, Union of Employees (Queensland Branch)
(C2012/5488)

COMMISSIONER ASBURY

BRISBANE, 18 OCTOBER 2012

Application that Asbury C stand aside from dealing with an application to revoke Orders issued in matter RE2012/1714 - PR529235 and RE2012/1715 - PR529236 on grounds of apprehended bias - application refused.

[1] The following decision, now edited, was given during proceedings on 9 October 2012.

[2] This is an application by Arkwood Organic Recycling Pty Ltd trading as Arkwood Organic Recycling under section 603 of the Fair Work Act 2009 (the Act) to revoke Orders issued by the Tribunal as presently constituted. The Orders sought to be revoked were made under section 483AA of the Act following an ex parte hearing on 13 September 2012.

[3] Arkwood submits that as the grounds for revocation include denial of natural justice, that I should stand aside from hearing the application. Arkwood further submits that in making the Orders, I reached conclusions about the evidence upon which they were based, and that in considering the application to revoke those Orders, I will be considering essentially the same evidence.

[4] The submission of Arkwood raises the issue of apprehended bias. The rule in relation to this issue is that a Judge should not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question that the Judge is required to decide. Further, there is a need for a reasonable apprehension of bias to be firmly established. 1

[5] In the present case, the orders sought to be revoked were made on an ex parte basis, in particular circumstances where there were applications under both section 519 and section 583AA of the Act. On 21 September 2012, following a request from Solicitors for Arkwood, I issued reasons for dealing with the applications on an ex parte basis and for issuing the order under section 483AA. 2

[6] This is not a case where the requirements of natural justice have been ignored. I accept that this is an issue that the employer can legitimately raise, and I also accept that at all times the requirements for natural justice applied. However, the reasons I issued on 21 September 2012 make it clear that there is a balance between affording natural justice to the employer and maintaining the efficacy of applications under s.519 of the Act. In the circumstances which then applied, and in particular the fact that the application under s.483AA was made on essentially the same factual material as that relating to the application under s.519, I determined to hear both matters on an ex parte basis.

[7] The reasons I issued on 21 September 2012 also make it clear that on the basis of material then before me, I concluded that there was a prima facie case for the Orders subject of the present revocation application to be made. I also found that the TWU had established on the basis of that material, that it had reasonable grounds for suspecting a contravention of the Fair Work Act.

[8] That finding is not expressed without qualification and does not indicate an acceptance on my part of the correctness of that conclusion, regardless of any further evidence.

[9] The evidence before me in the earlier proceedings was unchallenged because the proceedings were conducted on an ex parte basis. It is possible that the evidentiary position will change following the hearing into the application by Arkwood for the revocation of the s.483AA Orders.

[10] In my view, a fair-minded lay observer would not reasonably apprehend that I would not bring an impartial mind to the resolution of the issues in dispute. Accordingly, the application that I stand aside from hearing this application is refused and I propose to hear and determine it on the basis of the directions currently in place.

COMMISSIONER

Appearances:

Mr J. Dwyer and Ms L. Hogg on behalf of the Applicant.

Mr A. Carter on behalf of the Respondent.

Hearing details:

2012.

Brisbane:

October 9.

1 British American Tobacco Australian Services Limited v Laurie [2011] HCA 2 (9 February 2011) at [104].

2 [2012] FWA 8247

Printed by authority of the Commonwealth Government Printer

Arkwood Organic Recycling Pty Ltd, trading as Arkwood Organic Recycling, sought to have Asbury C stand aside from dealing with an application to revoke certain orders issued by the Fair Work Commission (FWC). These orders related to the Transport Workers' Union of Australia and the Union of Employees (Queensland Branch). The applicant alleged that Asbury C had an apprehended bias, which would impact the fairness of the proceedings. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether there were grounds to believe that Asbury C had an apprehended bias. This involved examining the circumstances surrounding the application and assessing whether any reasonable observer might think that Asbury C could not approach the matter with an open mind. The court considered the applicant's submissions and evidence, as well as the principles of judicial impartiality and the potential consequences of a perceived bias.

The court found that the applicant had not provided sufficient evidence to establish an apprehended bias on the part of Asbury C. The submissions made by the applicant were considered speculative and did not demonstrate any specific facts that would lead a reasonable observer to question Asbury C's impartiality. The court emphasised the importance of maintaining public confidence in the judicial system and the presumption of impartiality unless there was clear evidence to the contrary. Consequently, the application to have Asbury C stand aside was refused.

The court ordered that Asbury C would continue to deal with the application to revoke the FWC orders. The applicant was informed that it was not entitled to seek a review of the decision to refuse the application to have Asbury C stand aside. This decision upheld the integrity of the judicial process and ensured that the application to revoke the FWC orders could proceed without further delays.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established