Australian Manufacturing Workers' Union (AMWU)
[2015] FWC 4007
•23 JUNE 2015
| [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 of the AMWU’s coverage, I might not be inclined to depart from the views expressed in the second appeal decision when considering that issue in relation to the AMWU rules application and the ResMed representation application. This is advanced on the basis that, as part of a Full Bench, I expressed in the second appeal decision “clear views” about the extent of the AMWU’s existing coverage of ResMed employees in circumstances where this will be an issue required to be determined in relation to the AMWU rules application and the ResMed representation application.
[5] The principles relating to disqualification for apprehended bias, particularly as they relate to a situation where a court or tribunal member has previously made a finding or stated an opinion about a particular issue, were usefully summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2) 4 as follows:
“[8] The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.
[9] The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
... 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.
[10] The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.
[11] In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
[12] The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].
[13] However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:
... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature (at [139]).
(Emphasis in original.)
[15] These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
[16] Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
[17] To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.
[18] Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.
[19] A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
[20] As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
[21] In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.
[22] In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
[23] However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.”
[6] Two aspects of the principles summarised by Middleton J above require some elaboration in light the submissions advanced by ResMed. ResMed submitted that all that was necessary for it to demonstrate a reasonable apprehension of bias here was that the matters about which an opinion was expressed in the second appeal decision might possibly arise for consideration in respect of the AMWU rules application or the ResMed representation application. 6 That submission is, in my view, incorrect as a matter of principle in two respects. First, it is not sufficient simply that the court or tribunal member may be called on to determine an issue about which an opinion has already been expressed. There must be a further element, namely that in considering the issue about which an opinion has earlier been expressed, there is a real possibility that in doing so the court or tribunal member will merely adhere to the earlier expression of opinion without giving fair consideration to the evidence and arguments advanced that might support a different conclusion. This was explained in the following way by Hayne J in Minister for Immigration v Jia Legeng7(footnotes omitted):
“[185] Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[186] Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that (161):
“preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.” (Emphasis added)
Allegations of apprehended bias through prejudgment are often dealt with similarly (162).”
[7] ResMed’s submissions in substance involved the proposition that only the first two of the three elements identified by Hayne J are necessary to be made out in order to establish a reasonable apprehension of bias. That submission cannot be accepted. As was stated by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal 8:
“A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry ... 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.”
[8] The second is that it is unlikely to be sufficient to establish the “logical connection” referred to in the second of the two analytical steps identified in Ebner that the issue about which an opinion has previously been expressed might only possibly arise for consideration in the proceedings in which there is said to be a reasonable apprehension of bias. The authorities suggest instead that the issue about which there is said to be pre-judgment should be a “live and significant issue” 9 in the instant proceedings, or must be “the question involved in” the proceedings”10 or one that the court or tribunal “has to decide”11. Certainly an analysis is required of the role which the issue about which the opinion has been expressed will play in the instant proceedings. Although the test for reasonable apprehension of bias is framed in terms of a real (and not remote) possibility, I conclude from the authorities that there will generally not be a real possibility of a reasonable apprehension of bias on the basis of prejudgment of an issue which is of little or no relevance or significance to the present proceedings.
[9] In relation to the first of the two steps referred to in Ebner, ResMed as earlier stated relies upon the opinions expressed by the Full Bench, of which I formed a part, in the second appeal decision concerning the AMWU’s coverage.
[10] There can be no doubt that clear opinions were expressed in the second appeal decision concerning the AMWU’s coverage of some categories of employees employed by ResMed. The precise nature of those opinions, and the way in which they arose, requires analysis. In its original 2013 application for a majority support determination (MSD), the AMWU contended that it had coverage of employees of ResMed in the following five categories of employees which were to be covered by the enterprise agreement it wished to bargain for with ResMed:
(a) Production Operators, Line Leaders or Line Coordinators in the Patient Interface work group.
(b) Production Operators, Line Leaders or Line Coordinators in the Ventilation work group.
(c) Production Operators, Line Leaders or Line Coordinators in the Machines work group.
(d) Warehouse Operators, Line Leaders or Line Coordinators in the Warehouse work group.
(e) Employees in the Manufacturing Equipment and Tooling Support (METS) work group who hold a trade certificate or equivalent, or who is undertaking an apprenticeship or traineeship, other than any team leader(s) and/or any employee who is engaged as a supervisor, manager or equivalent.
[11] In his decision at first instance in respect of this application 12 (MSD Decision), Commissioner Bull found that the AMWU had coverage of category (e) only, and did not have coverage in the other four categories. However the Commissioner found that this was sufficient for jurisdiction to exist to grant the MSD sought by the AMWU, since the AMWU was the bargaining representative for at least one employee in this category. ResMed appealed the Commissioner’s decision on the basis that it was necessary for the AMWU to have coverage of employees in all five categories in order for there to be jurisdiction to make a MSD. The AMWU appealed the Commissioner’s decision that it did not have coverage of employees in categories (a)-(d).
[12] ResMed did not in its appeal contest the Commissioner’s finding that the AMWU had coverage of employees in category (e). ResMed’s appeal was determined, and dismissed, in the first appeal decision on the basis that it was not in issue that the AMWU had coverage of employees in category (e). 13 The second appeal decision did not therefore involve the expression of an opinion concerning the AMWU’s coverage of employees in category (e).
[13] It may be noted that in subsequent proceedings the AMWU’s coverage of employees in category (e) has not been contested by ResMed. The Federal Court decision in ResMed Limited v Australian Manufacturing Workers' Union, which rejected ResMed’s application for judicial review of the first appeal decision, proceeded on the basis that this coverage was not in issue. 14 The ResMed court application sought a declaration that the AMWU did not have coverage in respect of “the production operators, line leaders and line coordinators employed by ... ResMed ... to perform work in the Liquid Silicone Rubber, Mask Assembly, Spares and Accessories, Machines, Ventilator and Warehouse work groups at the Bella Vista site...”.15 The employees specified do not fall within category (e). There is therefore no current indication that ResMed and the AMWU are in dispute about the coverage of employees in category (e).
[14] In the second appeal decision, the Full Bench concluded, contrary to ResMed’s submissions, that mask assemblers in category (a), and all employees in categories (b) and (c), fell within the AMWU’s coverage. It determined, consistent with ResMed’s position, that employees in the LSR work group in category (a) and all employees in category (d) were outside the AMWU’s coverage. In relation to employees in the Accessories and Spares work group in category (a), the Full Bench determined that the evidence before it was insufficient to reach a conclusion about coverage, and remitted this issue to a single member of the Full Bench (Drake SDP) for further hearing (which has not yet occurred).
[15] The Full Bench’s conclusions that the AMWU had coverage of mask assemblers in category (a) and all employees in categories (b) and (c) was not based on any determination of contested facts. The matter was determined on the basis of the findings of fact concerning the nature of the work performed by these employees and ResMed’s operations generally made in the MSD decision. Neither party contended that there was any error in these findings (except by the AMWU in one minor respect which was not regarded as relevant to the conclusions reached). 16 The Full Bench’s conclusions were founded upon the meaning which it assigned to the expressions “assembler” and “engineering ... and kindred trades” appearing in the AMWU’s eligibility rules having regard to the historical industrial context including previous decisions and awards of federal industrial tribunals. Those assigned meanings were applied to the non-contested facts to reach the conclusions earlier described.
[16] In summary the Full Bench of which I was a part expressed an opinion in the second appeal decision, contrary to the position of ResMed, that mask assemblers in category (a) and all employees in categories (b) and (c) fell within the coverage of the AMWU based on the meaning assigned by the Full Bench to the expressions “assembler” and “engineering ... and kindred trades” appearing in the AMWU’s eligibility rules. That was essentially an opinion about a legal question rather than a factual conclusion. The construction of union eligibility rules and the determination of their application in a particular factual context has been characterised as “a legal question to be solved by legal considerations”. 17
[17] In relation to the second step of the two-step analysis required by Ebner, it is necessary for ResMed to demonstrate that there is a logical connection between the identified opinion expressed in the second appeal decision and the fear that I, as a member of the Full Bench, might not apply proper merits-based decision-making methods to the determination of the AMWU rules application and/or the ResMed representation application. That in the first instance requires an examination as to the extent to which, if at all, the matters about which an opinion was expressed in the second appeal decision will arise as issues for consideration in the determination of those two applications.
[18] It is to be observed at the outset in relation to the AMWU rules application that the AMWU’s proposed rule change is not confined to the five categories of employees dealt with in the MSD decision. As stated in the interim decision, the rule change would give it coverage of all ResMed employees, and additionally persons supplied by labour hire providers to ResMed and apprentices and trainees engaged by group training services which are hosted by ResMed. That is a significantly wider group.
[19] In the interim decision, I said in relation to the AMWU rules application (emphasis added):
“[19] It may be accepted, at least in relation to the AMWU rules application if not the ResMed representation application, that the question of the AMWU’s current coverage of ResMed employees may need to be determined. Section 158(4) of the RO Act provides:
(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.
[20] As was made clear by the Federal Court Full Court in relation to the equivalent provision in the Workplace Relations Act 1996 in Re Australian Workers' Union, Ex parte Construction, Forestry, Mining and Energy Union 18, it is necessary to identify the class of “persons who would be eligible for membership because of the alteration” in order that the specified statutory tests for approval may be applied to that class. Identification of that class requires a comparison of the existing coverage of the organisation compared to the coverage it would have if the rules alteration is approved.19 However, s.158(5) qualifies the operation of s.158(4) as follows:
(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
[21] Thus a finding on existing coverage for the purposes of s.158(4) may not be necessary if an undertaking is proffered and accepted under s.158(5). In that circumstance, whether the issue of the identification of the AMWU’s existing coverage then arises in the exercise of the Commission’s general discretion to consent to the rules change may depend upon the grounds upon which any objections to the rules change are made.”
[20] The position with respect to the extent to which s.158(4) of the RO Act will arise for consideration in the AMWU rules application has crystallised somewhat since the interim decision was issued. The above passage was referred to by Perry J in the stay decision at paragraphs [63]-[64], and her Honour then went on to say:
“[65] In the present case, the AMWU proposes to give an undertaking for the purposes of s 158(5) of the RO Act. While ResMed correctly submits that the FWC may not accept its undertaking, I accept the AMWU submission that that is unlikely given that no other union has lodged any objection and there is therefore no other union to which the FWC might find that those ResMed employees not presently covered by the eligibility rule might more conveniently belong.”
[21] Her Honour’s reference to no other union having lodged an objection is to be understood as referring to the fact that the only union objector to the AMWU’s proposed rules alteration, the Australian Workers’ Union, settled that objection with the AMWU and withdrew it on 19 February 2015. On 4 June 2015 the AMWU filed, as an annexure to its written submissions concerning the stay application, the undertaking which it proposed to proffer pursuant to s.158(5) of the RO Act. That proposed undertaking is in the following terms:
“1. The AMWU has filed an application under s.158 of the Fair Work (Registered Organisations) Act 2009 (Cth) for consent to the alteration of its eligibility rules (the Rules Variation). The effect of the variation would be to insert a rule removing any ambiguity about the AMWU’s ability to enroll and represent persons employed or engaged to work at ResMed Limited (the ResMed Employees).
2. There is currently no demarcation dispute between the AMWU and any other registered organization in relation to the ResMed Employees. There is no history of any demarcation dispute in relation to the ResMed Employees.
3. The AMWU acknowledges that the Rules Variation, if approved by the Commission, will not affect or in any way limit the coverage of any other registered organisation that may also have coverage of the relevant employees.
4. The AMWU by itself, its officers or agents, undertakes to take all reasonable and necessary steps to avoid demarcation disputes in relation to ResMed Employees that might otherwise arise from any overlap in the eligibility rules of the AMWU and any other registered organisation. In particular, the AMWU will not raise any objection to any other registered organisation lawfully participating in industrial matters or otherwise representing the industrial interests of their members.
5. The AMWU undertakes to recognise the membership of any other registered organisation that has, or develops, membership amongst the ResMed employees.
6. The AMWU undertakes that it will not seek to actively recruit ResMed employees who are, or become, members of any other registered organisation.
7. The AMWU undertakes to work constructively and co-operatively with any other registered organisation with membership or potential membership among any ResMed employees in respect of coverage or any other industrial issue.”
[22] It is clear therefore that the AMWU proposes to advance its case on the basis that it proffers an undertaking capable of acceptance under s.158(5) and that therefore s.158(4) will not arise for consideration. There are four observations that can be made at this stage about its position in this respect.
[23] The first observation is that there is currently nothing before the Full Bench upon which it could form the opinion referred to in s.158(4), and it is unlikely that there will be. The only notice of objection to the AMWU’s proposed rules change that remains on foot is that made by ResMed. It is not a ground of that objection that employees who would be eligible to join the AMWU under its proposed rules alteration could more conveniently belong to and be more effectively represented by another organisation. Accordingly no party will be contending at the hearing of this matter that the opinion referred to in s.158(4) should be formed, and presumably there will be no evidence advanced in that connection. The proposition stated in Re AWU; Ex parte CFMEU that the proper application of the criteria in the earlier statutory equivalent of s.158(4) required the class of “persons who would be eligible for membership because of the alteration” to be identified by way of a comparison of the existing coverage of the organisation compared to the coverage it would have if the rules alteration is approved arose in the context of proceedings in which objectors were actively contending that the relevant opinion should be formed. The practical position here is entirely different such that it is difficult to foresee any circumstances which would lead to the Full Bench embarking upon that exercise here. ResMed submitted that merely because there is no objection which raises s.158(4) does not mean that the Full Bench may not consider it. That is true in a theoretical sense but not in a practical sense. Consideration of whether the s.158(4) opinion should be formed could not occur in a vacuum. I adopt the conclusion stated by Perry J in paragraph [65] of the stay decision, quoted above, in this respect.
[24] The second is that there is authority for the proposition that if no opinion is formed under s.158(4), the question of undertakings under s.158(5) does not arise for consideration (contrary perhaps to the provisional view expressed by me in paragraph [21] of the interim decision). In National Tertiary Education Industry Union v Community and Public Sector Union 20Williams SDP expressed the view, in relation to relevantly identical provisions in the Workplace Relations Act 1996, that “The requirement to consider the appropriateness or otherwise of an undertaking or undertakings for the purposes of s.205(5) does not arise unless and until the designated Presidential Member has formed the requisite opinion under s.204(4) and, therefore, concluded that she or he would otherwise be obliged to refuse the application” (noting that s.204(4) was the equivalent of the current s.158(4) and s.204(5) was the equivalent of the current s.158(5)). Therefore, accepting ResMed’s proposition that the AMWU’s undertaking may not be one appropriate for consideration under s.158(5), this will be irrelevant if the opinion referred to in s.158(4) is not formed.
[25] Thirdly and alternatively, even if s.158(5) may arise for consideration absent the formation of the opinion referred to in s.158(4), contrary to the view expressed by Williams SDP, it does not follow that a consideration of the AMWU’s current coverage will be required. Even though any undertaking proposed by an organisation pursuant to s.158(4) must be on one that is appropriate to avoid demarcation disputes “that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation” (noting that the expression “the other organisation” is arguably a reference to another organisation that has been the subject of consideration and perhaps the formation of the opinion under s.158(4)), it cannot be said that this requires an assessment of the current coverage of the AMWU since, as was made clear by Williams SDP in NTEU v CPSU, the overlap of coverage referred to is to be assessed by reference to the coverage of the applicant organisation that would arise from consent to its proposed rules alteration being granted. 21 In any event, the relevance of any undertaking under s.158(5) is at this stage hypothetical since there is no contention currently before the Commission that any organisation other than the AMWU has any coverage of those of ResMed’s employees who would be eligible to join the AMWU if the rules alteration is granted consent.
[26] Fourthly, and again presupposing the alternative proposition that s.158(5) may arise for consideration absent the formation of the opinion referred to in s.158(4), although ResMed submitted that the AMWU’s proposed undertaking might not be accepted by the Commission, it would be open to the Commission to afford the AMWU an opportunity to proffer alternative or amended undertakings. That opportunity might be given in response to any shortcomings in the currently proposed undertaking identified by ResMed (noting that it has not yet indicated whether that undertaking is one that should not be accepted as appropriate under s.158(5)).
[27] On the basis of those observations, it appears highly unlikely that, in the determination of the AMWU rules application, it will be necessary to make any findings about the extent of the AMWU’s current coverage for the purpose of s.158(4) and (5) at all let alone in a way that traverses the opinion expressed in the second appeal decision.
[28] ResMed has submitted that the following propositions which appear in the particulars of the AMWU’s application require the determination of the extent of the AMWU’s current coverage:
(1) The AMWU has “coverage arising from the AMWU’s current eligibility rules”;
(2) “persons employed by ResMed … have been historically represented by the AMWU”;
(3) employees of ResMed are “represented by the AMWU as a bargaining representative under the Fair Work Act”;
(4) the new rule 1N will provide the AMWU with “unambiguous coverage”.
[29] I do not accept this submission for a number of reasons. First, it is not clear to me that the acceptance of any of these propositions is necessary in order for consent to be granted to the AMWU’s proposed rules alteration. Second, none of the propositions requires reconsideration of the opinions expressed in the second appeal decision. Proposition (1) is supportable by the finding in the MSD decision, not subsequently challenged and not the subject of any consideration in the second appeal decision, that the AMWU has coverage of ResMed employees in category (e) earlier set out. I do not read the proposition as asserting coverage to any specific extent. Proposition (2) I read as a factual assertion of actual representation, not one about coverage under the AMWU’s rules. Proposition (3) is supportable by the MSD decision, affirmed on appeal in the first appeal decision and on judicial review by the Federal Court. Proposition (4) has nothing to do with the AMWU’s existing coverage. I do not accept that consideration of any of these propositions would require traversal of the issues of coverage dealt with in the second appeal decision.
[30] ResMed further submitted that the AMWU’s current coverage would be a relevant consideration in respect to the Commission’s general discretion as to whether to consent to the proposed rules change, and points to the following proposition advanced in its grounds of objection in that connection:
(1) The rules alteration, if consented to, would extend the eligibility rule in the AMWU Rules to cover occupations for which the AMWU currently does not have eligibility.
(2) It would be inappropriate to consent to the rules alteration because to do so would extend the eligibility rule of the AMWU to cover employees in the medical device industry which is not an industry in relation to which the AMWU was registered.
(3) The application does not properly represent the current position in relation to the ability or otherwise of the AMWU to represent the industrial interests of employees of ResMed and related employees (with the particular: “The AMWU is not and at all times has not been, entitled to represent the industrial interests of employees of all employees of ResMed”).
[31] I do not consider that consideration of any of these propositions would require a determination to be made about the areas of coverage about which an opinion was expressed in the second appeal decision. In relation to propositions (1) and (3) above, that the AMWU does not currently have coverage of all of ResMed’s employees would be the case if it covers no-one, or if it covers only those in category (e) as found in the MSD decision, or if it additionally covers those categories of employees identified in the second appeal decision. As I understand it, the AMWU does not contend that it currently has coverage of all the employees encompassed by the proposed rules alteration. To put it another way, it does not require a conclusion about current coverage inconsistent with the second appeal decision to confirm the proposition that the AMWU does not currently cover everyone. In relation to the second proposition, assuming for present purposes that a medical device industry exists and ResMed operates within it, no conclusion about the AMWU’s coverage in the categories of employees dealt with in the second appeal decision is necessary to sustain the contention that the rules alteration if granted consent would extend the AMWU’s coverage into the medical device industry.
[32] Therefore I am not persuaded on the basis of ResMed’s submissions that the specific issues of coverage the subject of the second appeal decision are live and significant issues, or issues that require determination, in relation to the AMWU rules application. It is conceivable that they may, depending on the nature of any evidence adduced in the matter, arise for consideration in some way, but not in a way that would have any real significance in the determination of the application.
[33] I am not therefore satisfied that the requisite logical connection exists between the matters about which an opinion was expressed in the second appeal decision and the issues required to be determined in relation to the AMWU rules application.
[34] Moreover, even if the coverage issues about which an opinion was expressed in the second appeal decision needed to be considered afresh in respect of the AMWU rules application, I do not consider that ResMed has “firmly established”, or even properly identified, a basis for the proposition that there would be a reasonable apprehension that I might not, as part of this Full Bench, be prepared to reach a different conclusion about those issues irrespective of the arguments and evidence that is presented. As earlier stated, the opinion about the relevant areas of coverage in the second appeal decision was substantially concerned with a legal question, the relevant facts not having been in dispute. This is to be distinguished from situations such as where a prior finding has been made as to a party’s credit (as in Livesey), or where there has been a provisional finding of fraud on the part of a party (as in BATAS v Laurie),or where a broad range of adverse factual findings have been made in other proceedings against persons who are parties to the current proceedings (as in Kirby v Centro Properties).
[35] The mere expression of an opinion on a question of law will almost never give rise to a reasonable apprehension of bias, for the reasons explained by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation 22 (emphasis added):
“[12] The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie 23:
Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law’s reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth.
The ‘fair and unprejudiced mind’ which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group 24, ‘not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it’.”
[36] The second appeal decision, being one of a Full Bench, will necessarily have to be given weight if the issue of current AMWU coverage arises. Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it and its statutory predecessors have generally followed previous Full Bench decisions relating to an issue to be determined in the absence of cogent reasons for not doing so. 25 That will be the approach taken no matter how the Full Bench is constituted. However, I do not consider that it has properly been demonstrated that, if I continue to be a member of this Full Bench, there is a basis for a reasonable apprehension that any arguments advanced as to why the opinions expressed in the second appeal decision should not be followed might not properly be considered on their merits.
[37] ResMed has not disclosed the basis upon which it would challenge the correctness of the conclusion reached in the second appeal decision, but one possibility is that it may seek to adduce evidence which demonstrates that the facts upon which the Full Bench proceeded in the second appeal decision did not reflect the true or the complete situation. If so, there is no reason for an apprehension that such evidence might not be fairly considered by a Full Bench that included myself. As earlier stated, the second appeal decision proceeded on the unchallenged findings of fact made in the MSD decision; the Full Bench did not itself make any findings of fact. That is a completely different situation to that discussed by the majority in BATAS v Laurie at paragraph [145] (as referred to in paragraph [20] of Kirby v Centro Properties Limited, quoted in paragraph [5] above).
[38] The recusal application is therefore rejected in relation to the AMWU rules application.
[39] In relation to the ResMed representation application, ResMed submits that determination of that application will require the Full Bench to determine the extent of the existing coverage of the AMWU. It also points to the fact that the grounds advanced in support of the application include that “The AMWU has no established right to represent the industrial interests of employees in the ResMed workplace group under the FW(RO) Act or the FW Act”.
[40] The order that ResMed seeks is one under s.137A(1)(b) of the RO Act. Section 137A(1) relevantly provides:
(1) Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:
. . .
(b) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.
[41] In considering whether to make such an order, the Commission is required by s.137B(1)(c) to have regard to “the extent to which particular organisation of employees represent the employees in the workplace group, and the nature of that representation
[42] I accept that the extent of the AMWU’s existing coverage of ResMed employees is likely to arise as an issue to be determined in respect of the ResMed application. It is unlikely to be a decisive issue, since representation orders are usually made on the basis that a demarcation dispute between organisations is causing disruption or where the conduct of an organisation has disqualified it from the right to represent relevant employees in the future. However, it is likely to be a relevant issue. So much was conceded by the AMWU.
[43] However, for the reasons already explained, that connection between the second appeal decision and the ResMed representation application is not sufficient to firmly establish a reasonable apprehension of bias. The conclusions stated at paragraphs [34]-[37] above are equally applicable to the ResMed representation application.
[44] I therefore also reject the recusal application in relation to the ResMed representation application.
VICE PRESIDENT
Appearances:
A. Moses SC with Y. Shariff of counsel for ResMed Limited.
T. Howell of counsel with L. Saunders for the Australian Manufacturing Workers’ Union.
Hearing details:
2015.
Sydney:
12 June.
1 [2015] FWC 3261
2 ResMed Limited v Australian Manufacturing Workers’ Union (No 2) [2015] FCA 537
3 [2015] FWC 3261 at [17]-[18]
4 (2011) 202 FCR 439
5 Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111
6 Transcript at PN208-219
7 (2001) 205 CLR 507 at 564
8 (1990) 170 CLR 70 at 100
9 Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300
10 Re J.R.L.; Ex parte C.J.L.(1986) 161 CLR 342 at 349
11 British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]
12 [2013] FWC 9725
13 [2014] FWCFB 2418 at [11]
14 [2015] FCA 360 at [36]
15 See [2015] FCA 379 at [28]
16 [2014] FWCFB 2418 at [11]
17 R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654 at 659 per Barwick CJ; see also Re Australian Workers' Union; Ex parte Construction Forestry Mining and Energy Union (2002) 120 FCR 527 at [44] per Gray and Moore JJ.
18 (2002) 120 FCR 527
19 Ibid at [44]-[52] per Gray and Moore JJ and [134]-[140] per Merkel J
20 (1999) 93 IR 365 at 423 at [216]
21 Ibid at 423-4 at [221]
22 (1999) 166 ALR 302 at 307
23 [1972] VR 308 at 311-12
24 (1969) 122 CLR 546 at 554
25 Cetin v Ripon Pty Ltd (t/as Parkview Hotel) (2003) 127 IR 205 at [48]
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