[2018] FWC 5522

The attached document replaces the document previously issued with the above code on 31 August 2018.

The Print ID and MNC (identifying numbers) are amended to correct an administrative error.

Associate to Commissioner Wilson

Dated 3 September 2018

[2018] FWC 5522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Christiene Perks
(AB2018/219)

COMMISSIONER WILSON

MELBOURNE, 31 AUGUST 2018

Application for an FWC order to stop bullying – application for member to no longer deal with matter; application for dismissal of substantive matter for reason of it having no reasonable prospect of success. Principles associated with member ceasing to deal with matter; no recusal. Principles associated with dismissal for no reasonable prospect of success; substantive matter dismissed.

[1] On 16 April 2018 Christiene Perks made an application to the Fair Work Commission for an order to stop bullying, pursuant to s.789FC of the Fair Work Act 2009 (the Act). Ms Perks’ amended application identified several actions on the part of a Person Named, Ms Jacqueline Williams, an employee of Crewe Sharp Medical, which Ms Perks put forward as conduct capable of being found to be bullying at work. Ms Perks was engaged at the time of the application in the capacity of a Personal Care Worker or Assistant Nurse and Ms Williams is the company’s Regional Manager working from Cairns. The circumstances of Ms Perks’ employment with Crewe Sharp Medical are that the company is an agency placement firm providing employees such as Ms Perks to care facilities, in her case in the Townsville region.

[2] Ms Perks application identifies the following alleged bullying conduct:

● A reference provided by Ms Williams on 29 March 2018 to a prospective employer about Ms Perks was “a defamatory reference for myself which caused an offer of permanent employment” to be withdrawn;

● When Ms Perks declined shifts on 25 August 2017 Ms Williams responded in a mobile text message with some text as well as “an angry face emoji”;

● When Ms Williams was unable to obtain Ms Perks by telephone on 6 October 2017 she then rang Ms Perks’ mother “to ask her if she could please contact me and ask me to answer my telephone. Ms Williams wanted me to cover a shift”. Ms Williams subsequently, on 5 January 2018, denied making contact with Ms Perks’ mother.

● When Ms Perks declined shifts on 17 October 2017, Ms Williams again responded in a mobile text message with some text as well as “an angry face emoji”.

[3] Both Ms Williams and Crewe Sharpe Medical deny certain of the factual aspects of these allegations, or that any of them could be found to be unreasonable behaviour or bullying at work.
[4] After the usual preliminaries were dealt with by the Fair Work Commission’s anti-bullying triage team, Ms Perks’ application was assigned to me. Consistent with usual practice, the matter was the subject of the conciliation conference before me on 8 May 2018.

[5] The conciliation conference did not settle the matter and the matter was not set down for hearing for some time after with the conciliation process continuing over seven weeks after the first and only conference.

[6] It is be noted that at various stages through Ms Perks’ correspondence with the Commission, including on 22 June 2018, she has referred to some level of illness, with the extent of that illness not being the subject of any medical certificates or any indication as to how, if at all, that prevents her from dealing either with her anti-bullying application or her affairs generally. On 22 June 2018 Ms Perks responded to a request from the Commission, made some days previously, about how she would like to proceed with the matter. She had earlier responded, in relation to the same request, on 8 June 2018 that she was awaiting further legal advice about her application. On 22 June 2018 she responded in greater detail saying somewhat inconsistently both that she was “currently under a medical certificate and will not be making any decisions regarding these matters at this time” as well as that she was not waiving her “legal rights for the defamation by Ms Williams or Crewe Sharp Medical” of her and that should “Crewe Sharp not wish to settle these matters and/or enter negotiations then I would request the matters be listed to be addressed”.

[7] I did not take this correspondence to be Ms Perks saying that she lacked an ability to progress her application or to seek that it not be listed for hearing, whether that be owing to a medical condition or any other reason. In any event, after these comments there was further dialogue between Ms Perks and Crewe Sharp Medical about potential settlement of the matter, however, on 2 July 2018 Ms Perks communicated with my Chambers seeking a hearing, with her saying that she “would like the matters to be listed for hearing” being of the view that this was the best course of action “regarding the matters and given the delays in a resolution” which had already been long enough in her view.

[8] As a result, the matter was listed by me for hearing, with Directions on the subject being issued on 3 July 2018. The Directions issued a notification that the matter would be heard in Townsville, where Ms Perks lives, and that the hearing would be on dates which have subsequently been amended to Monday 29 and Tuesday, 30 October 2018. 1 The parties were also provided with the following Directions about the provision of material relating to the application and the evidence upon which they would rely (the Hearing Directions);

“[2] The Applicant, Ms Christiene Perks will file in the Commission and serve on Crewe Sharp Medical (the Respondent) and Ms Jacqueline Williams (Person Named) a copy of the draft order sought, an outline of submissions, witness statements and documents upon which she intends to rely by 5:00 PM Monday, 6 August 2018.

[3] The Respondent and Person Named will file in the Commission and serve on the Applicant and each other an outline of submissions, witness statements and documents upon which they intend to rely by 5:00 PM Monday, 10 September 2018.”

[9] This decision deals with two matters arising out of the listing process:

1. An application from Crewe Sharp Medical on 22 August 2018 that Ms Perks application be dismissed by the Commission for reason of it failing to have any reasonable prospect of success because Ms Perks had failed to respond to the filing Directions set out above; and

2. An application from Ms Perks, on 24 August 2018 that I have no further dealings with this matter.

[10] I shall deal with the second of these matters first.

MS PERK’S APPLICATION THAT I NO LONGER DEAL WITH THE MATTER

[11] Ms Perks’ notification to the Commission on the subject of bias consists of the following, within an email to the Commission on 24 August 2018:

“Good Afternoon All,

Please note I have made a Formal Complaint both via the Fairwork complaints process and I have made contact with the Commonwealth Ombudsman’s office today regarding the conduct of Commissioner Wilson and his Associate … today.

I will not be acknowledging any further communications from Commissioner Wilson or his Associate … .

This complaint is made due to the bullying behaviour [the Associate] engaged in last week over the telephone, discrimination against my medical conditions, and the actions taken by Commissioner Wilson and the mishandling of my Application and thread matters, causing me further detriment and exacerbation to my current Medical Conditions.

I think it’s fair to say that the actions of the above mentioned persons have caused a major issue in the FAIR resolution of these matters.

I would ask that Comissioner Wilson and his Associate … immediately remove themselves from these matters.

Kind Regards,

Christiene Perks.”

[12] After receipt of this notification the parties were informed that I would receive the email from Ms Perks as her application for me to have no further dealing with the matter for reason of bias and that any party who desired to provide further material relating to the application or to be heard on the subject was required to provide that material or advice by 5:00 PM Thursday, 30 August 2018.

[13] Only Ms Williams and Crewe Sharp Medical responded to this direction, with submissions on their behalf provided by their solicitors, Piper Alderman. Ms Perks did not respond to the direction. The response from Ms Williams and Crewe Sharp Medical did not seek to be heard and submitted that Ms Perks had put forward an insufficient base for me to cease to deal with the matter; that her claims were vague and lacked particulars and argued that the application should be dismissed.

[14] Ms Perks’ email could be construed as either an application for me to remove myself on the ground of actual bias or apprehended bias. The email is unclear and it is difficult to tell.

[15] Irrespective of the correct characterisation of Ms Perks’ application, there is a necessity for me to determine the application in the first instance. 2

[16] The basis of Ms Perks’ application appears to stem from her concerns expressed over various stages of the application and in particular about her expectations of the conciliation process and whether or not she would comply with the Hearing Directions.

[17] In relation to Ms Perks’ expectations of conciliation she expressed the view on 7 June 2018 while conciliation was ongoing that “perhaps a more suitable mediator is required to handle these matters with an interest in reaching a resolution”. In this regard it is noted that the Hearing Directions were issued on 3 July 2018, the day after Ms Perks said she “would like the matters to be listed for hearing”. Ms Perks returned to the matter of my suitability to deal with the matter in other correspondence to my Chambers in August (9 August (twice), 23 and 24 August). Within the same period she also made several references to her “current medical condition”.

[18] Ms Perks compliance with the Hearing Directions was identified to her by my Associate on 8 August 2018 shortly after Ms Perks queried the address for the Townsville hearing. The response from my Associate included the following:

“Good afternoon Ms Perks,

At this time the Commission is still in the final stages of booking facilities for the hearing at James Cook University in Townsville for Monday, 29 October and Tuesday, 20 October 2018. At this time the Commission is booking the MOOT court facilities at the University to hear the matter in. Please see attached a photograph of the MOOT Court and some additional information about the campus provided by the University. Upon final confirmation of our booking a notice of listing will be issued to parties confirming the address of the hearing.

Additionally, it is noted that in accordance with Commissioner Wilson’s directions issued 3 July 2018 that you (the Applicant) were due to file your submissions by 5:00 PM Monday, 6 August 2018. At this time the Commission does not appear to have received those submissions. Should this be an error can you please advise accordingly.

Kind regards,” (underling added)

[19] Ms Perks first response to this correspondence on 8 August 2018 at 5:29 PM was in these terms:

“Hi,

I will not be lodging any further documents as I feel it has indeed been confirmed with what has been provided in the Application.

I have provided all evidence within the initiating Application.

Kind Regards,

Christiene Perks.”

[20] Her second response also on 8 August 2018 at 5:35 PM was in these terms:

“Hi Again,

I also make note that the Commission is deciding and dictating whom the Application is including.

As Crewe Sharp Medical are the employer and Ms Williams was acting as a representative of Crewe Sharp Medical, I am of the view and intention that Crewe Sharp Medical are equal respondents in these matters.

If the Commission continue to insist that this is not the case, then I will be filing further Applications in these matters to include Crewe Sharp Medical as respondents in this case and Application.

I will also be lodging further Applications against both Crewe Sharp Medical and Ms Williams regarding the further bullying and discrimination that has occurred as a direct result of my lodging the current Application.

These Applications will be separate from the Civil Proceedings that will follow the Fairwork matters and Applications in regards to these matters.

Kind Regards,

Christiene Perks.”

[21] After seeing Ms Perks’ response to the reminder from my Associate a lengthy response was provided by me to the parties on 9 August 2018. After referring to the Hearing Directions and that Ms Perks had not filed material in accordance with them the Commission’s correspondence was in the following terms:

“Dear Parties,

I refer to the two emails to the Commission from Ms Perks on 8 August 2018 (received at 5:29 PM and 5:35 PM) which have been provided to all persons involved in this matter.

As you are aware Ms Perks’ application for the Commission to make orders pursuant to the anti-bullying provisions of the Fair Work Act 2009, contained within Part 6 – 4B (Workers Bullied at Work) is presently programmed for hearing before the Commission in Townsville on Monday 29 and Tuesday, 30 October 2018. In accordance with usual practice the Commission issued Directions on 3 July 2018 for the filing of relevant material by all persons wishing to be heard in the matter. Those Directions required Ms Perks as the Applicant in the matter to file and serve a copy of the Draft Order sought, an Outline of Submissions, Witness Statements and documents upon which she intends to rely by 5 PM Monday, 6 August 2018. The Respondent and Person Named were directed to file and serve an Outline of Submissions, Witness Statements and documents upon which they intended to rely by no later than 5 PM Monday, 10 September 2018.

To date Ms Perks has not filed her material in accordance with the Directions.

Ms Perks’ emails to the Commission dated 8 August 2018 raise two matters. The first, stated in the email at 5:29 PM, is that she does not propose to lodge any further documents as she feels her case has been confirmed with the material provided at the time of making the application. The second matter, stated in the email received at 5:35 PM, is that she considers Crewe Sharp Medical and Ms Williams to be equal respondents on the matters.

In relation to the first of these matters, regarding Ms Perks disposition not to file further material in accordance with the Commission’s Directions, I advise Ms Perks and the parties generally that it is my opinion that the matters set out in Ms Perks application and the documents she filed at the time of making the application would, in the absence of further submissions, oral evidence and documents, be insufficient for the Commission to be persuaded to make orders under Part 6 – 4B.

In relation to the second of these matters, regarding Ms Perks desire to have Crewe Sharp Medical treated as a Respondent in the matter equally with Ms Williams as a Person Named, I make three comments. The first is that from a technical perspective, because of the drafting of the legislation and in particular s.789FD(1)(a), bullying at work is when an individual or group of individuals takes action of the nature set out within the section. The section does not contemplate a person being bullied at work because of conduct by a corporate entity. Secondly, even though the definition of a person being bullied at work does not encompass behaviour by a corporate entity, the capacity of the Commission to make orders to stop bullying under s.789FF is not confined to orders against natural persons and there is no obvious limitation on an order being issued against a corporate entity should the Commission consider firstly that the statutory tests have been met and secondly that the relevant discretion for the issuing orders is appropriate to be exercised. Thirdly, it is to be noted that the framing of the case is up to Ms Perks. That is, it is not the Commission to pursue her case on her behalf or to frame her submissions, evidence or proposed order. If Ms Perks seeks orders against the company then that is for her to put forward as well is to indicate the nature of the orders that she proposes and against whom she seeks them.

Having regard to all of these matters, and especially Ms Perks’ indication that she does not wish to file further material in the matter, I advise that if no further material is provided by her then I will give consideration, after seeking the views of all parties to this matter, to dismissing Ms Perks application pursuant to the provisions of s.587(1)(c), which enables the Commission to dismiss an application if the application has no reasonable prospects of success.

Ms Perks is strongly advised that if she has not already done so she should seek legal advice on these matters and to show the legal advisor this correspondence.

The matter will now proceed on this basis;

1. The matter will remain listed as presently programmed if Ms Perks complies with the Directions by 5 PM Friday, 17 August 2018;

2. In the event that the Directions are not complied with by that date and time the Commission will consider the file in total and may invite submissions from the parties that the application be dismissed pursuant to the provisions of s.587(1)(c).

3. Liberty to apply is given to all parties to seek a mention hearing in relation to this matter, provided that request is made prior to Friday, 17 August 2018.

Kind regards,”

[22] Ms Perks also responded to this advice on 9 August 2018 in the following terms:

“Hi,

I would ask that these matters be placed in Homs (sic) until such times as when I am not under a medical certificate.

As it stands, Ms Jeffery has confirmed via email (submitted with original application) confirmed that she was in agreement and support of Ms Williams defaming my name without any grounds for doing so and in particular with evidence to support her claims of defamation, hence meaning a decision approved by Ms Jeffery and CREWE SHARP MEDICAL, this has been an authorised illegal activity which was authorised by Ms Jeffery.

I am of the view that these matters have been very poorly handled by Fairwork and as such again request a mediator that does not lean toward the best interests of e involved company.

Kind Regards,

Christiene Perks.”

[23] Shortly after sending that correspondence Ms Perks spoke with my Associate by telephone and in the course of the call told my Associate that she was recording the phone call. Ms Perks claims that my Associate laughed in response to the advice she was being recorded and that such is evidence of my Associate’s bullying of her.

[24] Further correspondence has since been received from Ms Perks after the Commission advised on 23 August 2018 that it would accept correspondence from Crewe Sharp Medical as being an application for the dismissal of Ms Perks’ substantive application because it did not have reasonable prospect of success. Her correspondence to the Commission on 23 August 2018 included that it was “a formal complaint against Fairwork for protecting Crewe Sharp Medical and [having] ignored my complaint throughout this process”, and “protecting Crewe Sharp Medical from being held accountable for bullying behaviour that has continued throughout this process”. Ms Perks stated in the correspondence that “I feel Fairwork have engaged in bullying with Crewe Sharp and his (sic) was recorded formally” with it being said that “[a]ll concerns raised by myself have been dismissed in favour of Crewe Sharp Medical and all request I have made have been ignored and dismissed by Fairwork representatives”.

[25] Ms Perks then took issue with the Commission copying her correspondence to Crewe Sharp Medical and Ms Williams, reiterating that she had lodged complaints regarding my conduct and that of my Associate and that, in finality, I should no longer deal with her application.

[26] Central to consideration of the matter before the Commission is an obligation for me to ensure procedural fairness to all parties in my dealings with them. The Full Bench has articulated the need to apply the principles of natural justice and to afford procedural fairness in this way:

“[21] The impartiality of the Commission is central to a fair hearing. Bias, whether actual or apprehended, connotes the absence of impartiality. Applied to Commission members the governing principle is that a member is disqualified if a fair minded observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question that the member is required to decide. The principle gives effect to the requirement that justice should both be done and be seen to be done.

...

[28] It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission. The term ‘natural justice’ in the context of administrative decision making has been equated to an obligation to act fairly or to accord procedural fairness. The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required is judicial fairness and what is fair in one case may be quite different from what is required in another.

[29] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

• is fair and just;

• is quick, informal and avoids unnecessary technicalities;

• is open and transparent; and

• takes into account equity, good conscience and the substantial merits of the case.

[30] These obligations may be seen as incidents of a general duty on the Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to the justice system and is at the very heart of the Commission’s obligations to the parties who appear before it. 3“ (references omitted)

[27] While applications may be made for a Member to cease dealing with a matter for reason of actual or apprehended bias, the Commission’s Fair Hearings Practice Note makes the point that a Member should not too readily agree to disqualify themselves 4 and follows decisions of the Full Bench on the subject; see for example Oram v Derby Gem Pty Ltd5; UFU v MEFSB6. The cases in turn follow the proposition enunciated by the High Court in Re JRL; Ex parte CJL,7 in which Mason J observed:

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey 8 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”9

[28] The distinction between claims of actual bias and apprehended bias have been succinctly summarised by Deputy President Asbury in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility: 10

“[12] As the High Court of Australia put it in Ebner v the Offical Trustee 11 ”…bias whether actual or apparent, connotes the absence of impartiality.”12 A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.13 The test for apprehended bias is whether “a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide”.14

[13] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish. 15 Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.16“ (citations in original)

[29] There is no cogent or persuasive claim of actual bias before the Commission. Nothing has been pointed to by Ms Perks that would reasonably approach the standard of a disclosure by me of a predetermined view. Ms Perks has pointed to no advice, commentary or communication that would reasonably lead to the possibility of there being a predetermined view on my part. To the extent that she may rely upon the fact that the Commission reminded her of the Hearing Directions or proceeded to do so over her protestations does not disclose any actual bias, but instead discloses the intention to afford both parties fairness in the process. In that regard it is to be noted that at no time has Ms Perks provided any evidence about her medical situation to the Commission and in fact has provided contradictory signals about whether she has an impediment that would ordinarily prevent the Commission from proceeding with preparations for the programmed hearing, which she herself requested. In all, Ms Perks puts forward nothing that would amount to “clear and direct evidence that the decision maker was in fact biased” and therefore, to the extent her application may be viewed as a claim of actual bias, the application cannot be sustained and is refused.

[30] The Courts have held that the possibility of the apprehension of bias must be “firmly established” in the case of an application for disqualification for suspected prejudice; for example see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group 17and Laws v Australian Broadcasting Tribunal18, which latter enunciation has been applied by the Full Bench, including in the matters of Oram v Derby Gem Pty Ltd19 and UFU v MEFSB20.

[31] Plainly, the appearance of bias to a reasonable observer is to be avoided. Such application is distinct from an application for disqualification on the ground of actual bias.

[32] The High Court set out the objective test of the “fair-minded lay observer” in Johnson v Johnson 21 as follows:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” 22

[33] The test is repeated in Ebner v Official Trustee 23 and is based upon the need for public confidence in the administration of justice. The High Court observed in Johnson v Johnson about the test being an objective one that:

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’” 24

[34] In the earlier case of Livesey v NSW Bar Association 25, the test was referred to in this way (in the context of an appeal in which the Appellant alleged apprehended bias on the part of judges who had, in an earlier case, made adverse findings about the credit of a person whom the Appellant might bring forward as a witness):

“It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg. v. Watson; Ex parte Armstrong. That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court (see, e.g., Re Judge Leckie; Ex parte Felman; Reg. v. Shaw; Ex parte Shaw) and in the Supreme Court of New South Wales (see, e.g., Barton v. Walker). Although statements of the principle commonly speak of “suspicion of bias”, we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.” 26

[35] The application of the objective test of the “fair-minded lay observer” is set out in Ebner v Official Trustee as a two step process requiring identification of relevant matters followed by connection of those matters with the case being decided. The High Court articulated the application of the principle as follows:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” 27

[36] In its consideration of applications of apprehension of bias, the Commission has followed these principles, both as to the objective test contained within, and the two steps of identification of matters and logical connection (see for example UFU v MFESB 28, Priestly v Department of Parliamentary Services29; Re Metro Trains30).

[37] Application of the apprehension of bias principle to the work of the Commission and its predecessors has taken account of its statutory role and purpose; see In R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group 31; Re Finance Sector Union of Australia and Another Ex Parte Illaton Pty Ltd.32

[38] In UFU v MEFSB 33, an appeal decision of the Australian Industrial Relations Commission, the Full Bench acknowledged:

“The starting point for our consideration of this issue is the generally accepted proposition that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission. The term “natural justice” in the context of administrative decision making has been essentially equated to an obligation to act fairly or to accord procedural fairness. As Kitto J observed in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth): “What the law requires in the discharge of a quasi-judicial function is judicial fairness.”

The rule against bias is one of the principles of natural justice.

It follows that the failure of a Commission member to disqualify themselves, in circumstances where statements which they have made give rise to a reasonable apprehension of bias, is a failure to accord procedural fairness.” 34 (references omitted)

[39] In John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v Mr Ronaldo Salazar, 35 (Salazar) the Full Bench was called to consider an appeal in the matter of an unfair dismissal application. The decision dealt with the specific circumstances of procedural fairness to unrepresented parties requiring “their day in court”, with a duty of the tribunal to provide a fair hearing, but not a positive advantage to a self-represented litigant.

[40] In the original hearing associated with Salazar, the Applicant was self-represented, which is the case here as well. While the Respondent in Salazar sought to be legally represented, that was refused at first instance (and in this case Crewe Sharp Medical and Ms Williams have advised of legal representation only from 30 August 2018, the day before publication of this decision).

[41] The appeal in Salazar surrounded the anticipation, which was not fulfilled in the original hearing, of the Respondent being able to cross-examine the applicant on the matters he sought the Commission at first instance to take into account. The Full Bench considered in detail the meaning of procedural fairness in the context of a matter such as Mr Salazar’s and held the following:

“[19]This appeal raises various issues concerning the conduct of unfair dismissal proceedings when dismissed employees represent themselves and are not familiar with the usual processes of leading evidence and cross-examination. It requires a consideration of the general nature of the Commission’s duty to accord procedural fairness, the content of the duty in relation to the leading of evidence, the approach to the admission of evidence and the weight to be given to statements from the bar table. These matters must be considered in the context of the role of the Commission when parties represent themselves. The Commission has additional duties when parties represent themselves to ensure justice to all parties is achieved.

[20]It is well established that Commission members are required to act “judicially” and accord all parties procedural fairness. This duty must be applied in the context of the particular circumstances including the nature of representation and the nature of the matter before the Commission. In Coal and Allied Services v Lawler, Buchanan J said:

“There is no doubt that members of FWA are (as were members of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission (“the AIRC”)) bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality. (See Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519, citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552; R v Moore; Ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92 at 101–2. See also Re Polites; Ex parte Hoyts Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583). However, it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible.”

[21]The general principle of procedural fairness should be noted. In Kioa v West Mason J (as he then was) said:

“32. Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework”. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434).

33. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).”

[22]Once an application is made the Commission must hear the case, as a Full Bench of the Commission said in Michelletto v. Korowa:

“The Right to a Hearing

[14] It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant’s case. The nature of the applicant’s right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB).”

[23]This obligation to hear a case requires the Commission to give the parties the opportunity to be heard on the various aspects of the case: Re Media Entertainment and Arts Alliance; Ex part Arnel. In that decision the High Court cited Re Australian Railways Union; Ex parte Public Transport Corporation:

“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from the obligation to observe the rules of procedural fairness in exercising its arbitration function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd this court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd the court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”

[24]The role of the Commission member when an applicant appears in person also needs to be taken into account. The duty is to provide for a fair hearing but not to provide a positive advantage to a self represented litigant. As Samuels JA said in Rajski v Scitec Corporation Pty Ltd :

‘‘. . . the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent....At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’’

[25]In Minogue, the Full Court of the Federal Court recognised that the trial judge must strike a balance.

“A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial.”

[26]It has been held that legitimate intervention includes ascertaining the rights of parties. In Downes & Anor v Maxwell Richard Phys & Co Pty Ltd (in liq) [2014] VSCA 193 at [25], Osborne JA said:

“Nevertheless in Neil v Nott & Anor the High Court recognised that a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.”

[27]The boundaries of legitimate intervention must be considered in the context of the requirement for the Commission to proceed in a manner which is quick, informal and avoids unnecessary technicalities. (Section 577 of the Act) Consistent with this duty the Commission, as with its predecessors, often accepts statements from the bar table on matters of fact. As Buchanan J observed “the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible”. However, the Commission must also act in a manner that is fair and just. The parties should be made aware of the consequences of making unsworn assertions from the bar table when the statements are likely to be contested.” 36 (endnotes omitted)

[42] In a different context to an unfair dismissal matter, namely an appeal relating to an application under s.418 of the Act for the making of orders that industrial action on a construction site stop, in which the Appellant argued it had been denied natural justice when it was not afforded the opportunity for an adjournment, the Full Bench held that in an analysis of claims of a denial of natural justice or procedural fairness it is necessary to have regard to the statutory context, the particular circumstances of the proceedings and the grounds of the matter under consideration; per CEPU & CFMEU v Abigroup Contractors Pty Ltd. 37 The substance of the Full Bench’s decision, to dismiss the appeal, was overturned on judicial review by the Full Federal Court in the majority decision in CEPU v Abigroup Contractors Pty Ltd.38 However, in relation to the matter of the application of procedural fairness to the work of the Commission, the majority held:

“118. It is well established that the members of the Fair Work Commission are obliged to observe procedural fairness in carrying out their functions under the Fair Work Act: Coal & Allied Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [25]. That obligation extends, in the absence of any express provision to the contrary, to the exercise of the Commission’s powers under s 418: Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 at [44].

119. Procedural fairness requires that the Fair Work Commission ensure that each party is given a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ; Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. The Full Bench stated in [30] of its reasons that an application under s 418 of the Fair Work Act is, “quite a different situation to civil remedies generally where there is an obligation to make out a case and permit a respondent a reasonable opportunity to respond to the case against them”. That statement as it reads is erroneous, but the Full Bench went on to conclude in [33] that such a reasonable opportunity was in fact given so that its error may be irrelevant.” 39

[43] Further, and with specific reference to the means by which procedural fairness can be established, the majority held:

“137. When a court considers whether a tribunal exercising a statutory power has accorded a party procedural fairness, the court must place itself in the shoes of the tribunal to determine whether the procedure adopted was reasonable and fair: Kioa v West at 627 per Brennan J. What is reasonable and fair depends on the circumstances known to the tribunal at the time of the exercise of the power or the further circumstances which, had it acted reasonably and fairly, it would then have known: Kioa v West at 627 per Brennan J.” 40

[44] It is appropriate therefore, in assessing Ms Perks’ contentions in relation to procedural fairness, to have regard to the purpose and nature of her unfair dismissal application; its statutory context; and the circumstances known or identified to the Commission about the application, including the various procedural decisions it made.

[45] Those circumstances include a contested anti-bullying application which is now the subject of a hearing programmed as a result of a request from Ms Perks herself, with Hearing Directions having been issued in order to properly determine the complaints made by Ms Perks. The context of the application, of course, includes the anti-bullying provisions of the Act (Part 6 – 4B). In the event that Ms Perks’ application succeeds and bullying at work is established the Commission must then move to considering whether orders are made on Ms Williams, Crewe Sharp Medical or any other person or entity in relation to the established conduct. If such orders were made and contravened, the orders may then be enforced by a Court.

[46] Further context is given by the fact that there has been a failure on Ms Perks’ part to engage with the Commission’s Directions and particularise the matters that she says are bullying. It is not for the Commission to run her case for her, but to allow her a reasonable opportunity to present her case, as well as to consider the case put. Even in the light of such obligations, the onus demonstrably rests with Ms Perks to establish her case. While the material presented so far by Ms Perks establishes allegations, that material cannot reasonably be viewed as establishing at this time the requisite standards of proof.

[47] It is to be further noted taking into account that Ms Perks’ claims, as part of the bullying conduct, that on 22 June 2018 she communicated that she had not been provided with any further shifts by Crewe Sharp Medical. If that is the case, and the facts on the subject are not before the Commission, then it may well be that there is no ongoing employment of Ms Perks, in which case her application would be without jurisdiction under the anti-bullying part of the Act for the Commission to hear and determine.

[48] It also must be noted, for the purposes of context that Ms Perks is unrepresented, and that Crewe Sharp Medical and Ms Williams advised of legal representation only from 30 August 2018.

[49] The product of these considerations of context is that, all things being considered, Ms Perks application is still at a very early stage. While plainly there is some degree of mutual antipathy, or perhaps animus between her and Ms Williams and Crewe Sharp Medical, the degree of those matters is yet to be established and similarly, whether any part of the relationship in fact is bullying at work. There is a necessity for Ms Perks to establish, on the balance of probabilities, that the things she points to in fact are bullying conduct for which orders must then be issued. Because the proceedings are still at a very early stage, it would be impossible to move to the point of making orders without a hearing in which the respective contentions of the parties are identified and established.

[50] In consideration of the matter of apprehended bias, and what may be viewed by the fair-minded lay observer, it is unlikely that the foregoing context as well as the overall facts referred to would lead to the prospect that bias has been exhibited against Ms Perks thus far. As referred to previously, Ebner requires the application of a two-step process; firstly identification of what it is said may lead to Ms Perks’ application being decided other than on its legal and factual merits; secondly that there must be an articulation of a connection between those matters and the feared deviation from the course of deciding the case on its merits. Respectfully, Ms Perks’ claims satisfy neither.

[51] The best that may be said about her claims are that it is inconvenient to her to meet the case management requirements of the Commission or to otherwise respond to the need to demonstrate her case, with it being accepted that the Commission’s directions to parties play an important role in case management. 41 To the extent that reminding Ms Perks of the need to comply with the Directions could be said to be the thing which satisfies the first step, that of course is without merit. Any party before the Commission can be expected to be required to cogently and persuasively establish their case. While the Commission will assist the parties generally in putting forward that which they have no experience about, that is not to say that the Commission has an obligation to run the case for the party. On 3 July 2018 Ms Perks was directed to provide further particulars about her case by 6 August 2018. On 8 August 2018 she was reminded about that matter. Also on 8 August, Ms Perks categorically stated she would not be lodging any further documents. Even after that communication the Commission was not minded to peremptorily close off her matter but instead chose to extend the filing date until 17 August 2018, a date which has come and gone without the filing of any further material by Ms Perks or without any expression on her part that she requires more time to file.

[52] When, after these processes the Commission accepted an application from Crewe Sharp Medical to dismiss Ms Perks’ substantive application for reason of it having no reasonable prospect success without the filing of additional material, that step would be viewed by the fair-minded lay observer as merely affording procedural fairness to both parties and would be unlikely to be viewed as an apprehension of bias on my part.

[53] As a result no claim of apprehended bias can be sustained.

[54] For these reasons Ms Perks’ application that I no longer deal with her matter is refused.

CREWE SHARP MEDICAL’S APPLICATION THAT THE SUBSTANTIVE APPLICATION BE DISMISSED AS HAVING NO REASONABLE PROSPECT OF SUCCESS

[55] The background to Crewe Sharp Medical’s application that Ms Perks substantive application be dismissed as having no reasonable prospect of success is adequately set out above.

[56] On 22 August 2018 Crewe Sharp Medical made an application to the Commission for the matter to be dismissed under s.587(1)(c) of the Act for no reasonable prospect of success, given no further materials were filed by Ms Perks. Directions were issued the following day on 23 August 2018 inviting any further materials from parties regarding this application to be filed by 5:00 PM Thursday, 30 August 2018.

[57] To date, Ms Perks has provided no further materials. Piper Alderman, solicitors for Ms Williams and Crewe Sharp Medical responded to the direction, arguing that Ms Perks’ failure to put forward her case meant that there was not a reasonable prospect of success and that her substantive application should be dismissed.

Legislation

[58] The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[59] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

[60] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations. Section 587, in its entirety, provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration

[61] The basis of Ms Perks’ application is set out above. The allegations she makes of bullying conduct essentially surround a reference provided about her in March 2018, and communications following unsuccessful approaches to her to work in mid to late 2017.

[62] The reference complained about is included in her application, from which it appears that the reference is both tepid about her skills as well as indicating that she “occasionally” or “often” fell short of expectations. While certainly the document did not meet the expectations Ms Perks’ held (and it is unclear what those expectations were), and Ms Williams and Crewe Sharp Medical say it was honestly given, it is not immediately obvious that the document amounts to unreasonable behaviour. Similarly, it is not clear that the text messages complained of were unreasonable behaviour. Perhaps it is possible that both could be established to be unreasonable behaviour, however such finding could not reasonably be made by the Commission without detailed evidence on the subjects and the surrounding circumstances.

[63] I also note the matter referred to above, of Ms Perks’ claim on 22 June 2018 that she has not been provided with any further shifts by Crew Sharp Medical. If that claim is correct, and there is no corroborative evidence before the Commission on the subject, her application would no longer be capable of determination.

[64] A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable.

[65] In Spencer v The Commonwealth of Australia, 42 consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s.31A of the Federal Court of Australia Act 1976. In that case the plurality (Hayne, Crennan, Kiefel and Bell JJ) said the following:

‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.’ 43

[66] In the circumstances of this matter, given there is no evidence before the Commission to satisfy the criteria under s.789FD of the Act I am persuaded to exercise my discretion to grant the application of the Respondents pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application on the basis that it has no reasonable prospects of success. An order dismissing the Applicant’s anti-bullying application will be issued along with this decision.

COMMISSIONER

1 The original hearing dates were Tuesday, 30 October 2018 and Wednesday, 31 October 2018.

2 See Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility[2016] FWCFB 278 , at [10] “In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker.”, with reference to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74]

3 Viavattene v Health Care Australia[2013] FWCFB 2532, at [21] - [30]

4 Fair Hearings Practice Note, [28]; (2003) 134 IR 379, at [109].

6 (2005) 141 IR 438, at [78].

7 (1986) 161 CLR 342, p 352, per Mason J.

8 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW. Bar Association (1983) 151 CLR 288.

9 Ibid, p 352.

10 [2015] FWC 5853; appealed, but findings not disturbed on appeal (see [2016] FWCFB 278).

11 (2000) 205 CLR 337.

12 Ibid at 348.

13 Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].

14 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.

15 Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.

16 Ibid at p. 4-5.

17 (1969) 122 CLR 546, p 553, per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ.

18 (1990) 170 CLR 70, p 100, per Gaudron and McHugh JJ.

19 (2003) 134 IR 379, at [107].

20 (2005) 141 IR 438, at [76].

21 (2000) 201 CLR 488.

22 Ibid, p 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

23 (2000) 205 CLR 337, at p 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ.

24 (2000) 201 CLR 488, p 493.

25 (1983) 151 CLR 288.

26 Ibid, pp 293-294.

27 (2000) 205 CLR 337, p 345.

28 (2005) 141 IR 438, at [79] and [84], per Ross VP, Hamilton DP, Gay C.

29 [2011] FWA 672, at [11], per Watson VP.

30 Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Association of Professional Engineers, Scientists and Managers, Australia, 2013 FWC 4034, at [33], per Bissett C.

31 (1969) 122 CLR 546.

32 (1992) 42 IR 352.

33 (2005) 141 IR 438.

34 Ibid, at [61] - [63].

35 [2014] FWCFB 7813.

36 Ibid, at [19] - [27].

37 [2013] FWCFB 453 [28 – 29].

38 [2013] FCAFC 148.

39 Ibid, at [118] - [119].

40 Ibid, at [137].

41 Ghalloub v Aon Risk Services Australia Limited (2005), unreported, Print PR956665

42 (2010) 241 CLR 181.

43 Ibid at [59] – [60].

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