Burswood Resort (Management) Ltd T/A Crown Perth v United Workers' Union

[2019] FWC 7668

[2019] FWC 7668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Burswood Resort (Management) Ltd T/A Crown Perth
v
United Workers’ Union
(C2019/6795)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 NOVEMBER 2019

Alleged industrial action at Burswood Resort (Management) Ltd T/A Crown Perth - recusal decision – alleged collusion – reasonable apprehension of bias.

[1] On 7 November 2019, United Voice, as it then was (the Union), applied for me to recuse myself from hearing and determining an application made by Burswood Resort (Management) Ltd T/A Crown Perth (Crown Perth) for orders that certain industrial action be prevented. Crown Perth made the application for such orders on 6 November 2019, having asserted that the Union was organising industrial action to take place for the period of Saturday, 9 November 2019 until 6.00am, Monday 11 November 2019.

[2] This is an edited version of the decision delivered ex tempore and recorded in transcript on 8 November 2019. Given the urgency of the application made under s 418, the background to the recusal application was not included in that decision. However, to provide context that background is now traversed, and reasons given as transcribed.

[3] I must also note that between the hearing of this application on 8 November 2019 and the publication of this decision, the union formerly known as United Voice has amalgamated with the National Union of Workers to form the United Workers’ Union.

Background

[4] The background to this application is relatively succinct. On 3 November 2019, in response to another application of Crown Perth made under s 418, I issued an Order 1 preventing certain industrial action from occurring on Melbourne Cup Day, having found it was unprotected. Accompanying that Order were my reasons for the decision (the Melbourne Cup Day decision).2 The aforementioned Order and the Melbourne Cup Day decision were issued at 5:04pm on Sunday, 3 November 2019.

[5] The hearing regarding the Melbourne Cup Day decision began at 10:00am on 3 November 2019 and concluded at approximately 10:45am on that same day.

[6] At 1:33pm on 3 November 2019, my Associate received a phone call from Ms Julia Lee, Industrial Officer of the Union. My Associate, in his file note, recorded that Ms Lee asked whether an order had been issued, as a lead organiser (presumedly of the Union) had called Ms Lee saying that Crown Perth had told staff an order had been issued. My Associate informed Ms Lee that he had no knowledge of an order having been issued and both parties would be informed if an order or decision was issued.

[7] At 1:45pm on 3 November 2019, Chambers received an email from Ms Lee stating ‘[P]lease find a text message sent by Crown Perth at 1:13pm to all United Voice covered employees at Crown.’ The ‘text message’ in question read:

The text message read:

… Crown Perth Weekly Update

Sunday, November 3, 2019 1:13pm

Update: Industrial Action

The Fair Work Commission has ordered that United Voice’s proposed stoppage on Melbourne Cup day, from 11 am to 1pm, is unlawful.

The decision prevents staff from participating in action that would have been unprotected and unlawful.

Had the stoppage gone ahead, Crown would have been obliged by law to deduct 4 hours of pay for the 2-hour stoppage.

Crown respect the right of staff to participate in protected industrial action and wants to ensure its staff are protected.

The Fair Work Commission ruling removes any doubt regarding the legality of the stoppage.

[8] Ms Lee continued in her email ‘United Voice has not received any notice that a decision has been issued, nor can we find a published decision on the FWC website. Are you able to confirm that a decision is yet to be issued?’.

[9] Not long after, at 1:53pm, Chambers received from Ms Billing, representative for Crown Perth, an email stating the following:

UV has notified Crown Perth that it received a communication from Crown Perth purporting to advise Crown employees of a decision of the Commission with respect to today’s proceedings.

We are instructed that this communication was saved in a confidential directory and was one of a number of drafts prepared by Crown’s executive and public relations team in preparation for all possible outcomes. Crown is seriously concerned that there may have been a breach of security with unauthorised access to privileged and confidential documents and is investigating this as a matter of urgency.

We respectfully request that you bring this to the urgent attention of the Deputy President.

[10] At 1:53pm on 3 November 2019, my Associate sent to the parties an email noting receipt of a photo (image) from the Union and requesting confirmation whether the image had been sent to Crown Perth’s employees and, if it had been sent, why, given that no decision or order had been issued in relation to the matter. Given the timing of the two aforementioned emails, Chambers sent a further email drawing to Ms Billing’s attention the prior email from Chambers.

[11] At 2:03pm, on that same day, Ms Billing updated Chambers and the Union; preliminary investigations indicated that the image sent to Chambers by the Union was an earlier draft communication prepared in anticipation of a favourable decision and that the communication had not been sent to staff – human error having allowed access to the document whilst in a ‘test environment’. No further correspondence was received from either party concerning the matter or disputing this preliminary investigation.

Consideration

[12] The crux of the Union’s application regarding my recusal was that as a result of the actions occurring from 1.30 pm onwards on 3 November 2019 relating to a prior application between the parties, noting that these actions were said to be outside of my control, had nevertheless exposed me to an apprehension of malfeasance.  The Union submitted that a fair-minded lay observer may wonder whether there was collusion between the Fair Work Commission and Crown Perth resulting in advance notice of the decision.

[13] According to the Union, that same fair-minded lay observer might then further wonder that if collusion had happened once, might it not occur again. It would follow that the fair-minded lay observer may conclude that, in the circumstances and in the interests of justice being seen to be done, I play no further part in these proceedings. 

[14] I have had regard to the submissions of the parties, the evidence led and the principles applicable to an application for recusal based upon a reasonable apprehension of bias.  In this respect, I observe that it is uncontroversial that the principles relating to disqualification for apprehended bias were stated in Ebner v Official Trustee in Bankruptcy 3 (Ebner) and thereafter were usefully summarised by the Federal Court in the decision of Kirby v Centro Properties Ltd.4

[15] Subsequent Full Benches of this Commission have adopted those principles, and, in this respect, I refer to the decisions of Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac 5 and Bronze Hospitality Pty Ltd v Hansson,6 amongst others.  The facts outlined in this matter appear to be uncontentious, with neither party providing an alternative view of that which is presented in the witness statements.  The evidence includes at least two forms of communication from my Chambers, informing both parties that a decision and order at the relevant time had not been issued.  The test of apprehended bias clearly involves a fair-minded lay observer who is observing a judge or in this case not a judge, but a member of the Commission.  It is therefore said that the assumed characteristics of both the judge and the fair-minded lay observer need to be considered.

[16] The Union has referred to the fair-minded lay observer, and if such a fair-minded lay observer would wonder whether there was collusion between the Commission and Crown Perth, resulting in advance notice of the decision concerning proposed industrial action on Melbourne Cup Day.  However, on any objective view, such assertion, without any supporting evidence, simply bears no logical connection to a decision being arrived at on factors other than the merits of the particular case. 

[17] Crown Perth has submitted that the Union does not posit what a fair-minded lay observer might reasonably apprehend;  the Union posits what a Machiavellian conspiracy theorist would widely speculate based on nothing more.

[18] In Ebner, the observation was made that a judge is trained and is required to discard the irrelevant, the immaterial and the prejudicial; that is, the judge is trained and is required to be impartial. Under s 577 of the Fair Work Act 2009 (Cth) (the Act), the Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just. Further, when performing its functions or exercising its powers in relation to a matter under part of the Act, the Commission must take into account equity, good conscience and, of course, the merits of the matter. When considering the assumed characteristics of the fair-minded lay observer, it would not be fanciful to suggest that such observer would recognise that a judge, or, in this case, a member of the Commission, was a professional person, capable, for example, of departing from an earlier-expressed opinion.

[19] Similarly, where a member of the Commission was required under law to perform functions and exercise power in a certain manner, then it would not be unreasonable to assume that a characteristic of the fair-minded lay observer would be an ability to recognise that a Commission member was a person capable of acting in the manner required of them under the Act. I am unpersuaded that in the circumstances of this case a fair-minded lay observer may wonder whether there was collusion between the Fair Work Commission and Crown Perth resulting in advance notice of the decision.

[20] It follows that the Union has failed to satisfy me that it has identified factors or circumstances that might influence a departure from meritorious decision-making.  Furthermore, I am unable to conclude that there is a logical connection between the factors asserted and the fear that I might not apply merits-based decision-making in resolving the controversy on the facts and law.

[21] To conclude, I do not consider that the ground relied upon by the Union would lead a fair-minded lay observer to reasonably conclude that I might not bring an impartial mind to the determination of the s 418 application.  It is therefore the case that the Union's application that I recuse myself from dealing with the s 418 application is dismissed. 

DEPUTY PRESIDENT

Appearances:

K Sneddon for United Voice (as it then was)

M Follett of counsel for Burswood Resort (Management) Ltd

Hearing details:

2019.

Perth and Melbourne (by video):

November 8.

Printed by authority of the Commonwealth Government Printer

<PR714086>

 1   PR713959.

 2   [2019] FWC 7571.

 3 (2000) 205 CLR 337.

 4 (2011) 202 FCR 429;see Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855 [29].

 5   [2019] FWCFB 3855 [29].

 6   [2019] FWCFB 3456.