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Australian Manufacturing Workers' Union (AMWU)

Australian Manufacturing Workers' Union (AMWU)

Case [2015] FWC 4007 23 June 2015

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[2015] FWC 4007 [Note: refer to the Federal Court decision dated 12 August 2015 [2015] FCAFC 106 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

s.137A RO Act - Orders about representation rights of organisations of employees

Australian Manufacturing Workers' Union (AMWU)
(D2014/70)

ResMed Limited
v
Australian Manufacturing Workers' Union (AMWU)
(C2015/1008)

VICE PRESIDENT HATCHER

SYDNEY, 23 JUNE 2015

Application for recusal of member on ground of apprehended bias.

Introduction

[1] ResMed Limited (ResMed) has applied for me to recuse myself from participating in the Full Bench allocated to hear and determine these two matters. The background to this application, including the complex history of a number of related proceedings in this Commission and in the Federal Court of Australia, was explained by me in an earlier decision issued in relation to ResMed’s recusal application on 13 May 2015 1 (interim decision). I do not intend to repeat that background and history. I will adopt for the purposes of this decision the various acronyms and abbreviations used in the interim decision.

[2] In the interim decision, I determined that consideration of ResMed’s recusal application would be deferred until after the Full Bench had heard and determined ResMed’s stay application. However events have moved on since the interim decision was issued. In a judgment issued on 29 May 2015 2 (stay decision), the Federal Court (Perry J) determined that the ResMed court application and the AMWU court application would be temporarily stayed pending the determination by this Commission of the AMWU rules application and the ResMed representation application. On 4 June 2015, ResMed applied to the Full Bench for the hearing of its stay application in this Commission, listed for 9 June 2015, to be adjourned pending the determination of an appeal against the stay decision (for which leave was required) which it stated it intended to institute in the Federal Court. On 5 June 2015 the Full Bench determined that it would refuse ResMed’s adjournment application. Upon this determination being communicated to ResMed, it informed the Commission the same day that ResMed did not press the stay application “at the present time”. In those circumstances the listing for 9 June 2015 was vacated.

[3] ResMed has applied for leave to appeal the stay decision, and has informed me that there is some prospect that its application for leave, together with the merits of the appeal itself, may be heard by a Full Court of the Federal Court in August. Nonetheless as matters now stand there is no reason why this Commission should not proceed to hear and determine the AMWU rules application and the ResMed representation application. In those circumstances it has become necessary for me to determine ResMed’s recusal application.

[4] As identified in the interim decision 3, only one ground of ResMed’s recusal application remains relevant, namely that a lay observer might reasonably apprehend that, on the issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Manufacturing Workers' Union (AMWU) [2015] FWC 4007
Case: [2015] FWC 4007
Decision Date: 23 JUNE 2015

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to have a member of the Fair Work Commission recused on the basis of apprehended bias. The dispute arose from the member's alleged prior involvement in a related matter, which the union contended might compromise the member's impartiality. The application was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the member's past involvement in a related matter gave rise to a reasonable apprehension of bias. The court had to consider the applicable legal principles regarding judicial impartiality and the standard of proof required to establish apprehended bias. The court also had to determine if the member's prior involvement warranted recusal under the relevant legal framework.

The court found that the member's prior involvement did not create a reasonable apprehension of bias. It was held that the member's conduct did not indicate a likelihood of bias and that the union had failed to demonstrate that the member could not approach the matter with an open mind. The court emphasised the importance of impartiality but also noted the high threshold required to establish bias. The application for recusal was dismissed.

Orders