Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Amec Foster Wheeler Australia Pty Ltd

[2021] FWC 866

[2021] FWC 866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Amec Foster Wheeler Australia Pty Ltd
(RE2020/1146)

DEPUTY PRESIDENT BINET PERTH, 3 MARCH 2021

Alleged dispute concerning the location permitted by the Employer to convene discussions with members.

[1] On 15 December 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed an application (Application) pursuant to section 505 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) to deal with a right of entry dispute with John Wood Group PLC (John Wood).

[2] The dispute concerns the location at which the CEPU wish to hold discussions with employees.

[3] An email was sent to the parties on 31 December 2021 notifying them that the Application had been allocated to my Chambers and that I proposed to list the Application for a conference to explore the resolution of the Application and/or determine the further programming of the Application. Neither party indicated any objection to engaging in conciliation.

[4] The Application was subsequently listed for a conciliation conference (Conference) from 2pm (AWST) to 4pm (AWST) on 19 January 2021. Ms Alana Heffernan (Ms Heffernan), Mr Ian Gill and Mr Adam Woodage (Mr Woodage) attended the Conference on behalf of the CEPU. Mr Marcus Clarke (Mr Clarke) and Mr Bernie O’Reilly attended on behalf of John Wood. Mr Clarke indicated that John Wood was not the correct respondent to the Application, but that he was in a position to speak on behalf of the correct entity.

[5] In response to a subsequent application for an order for production to identify the correct Respondent, Mr Clarke revealed that the correct respondent was AMEC Foster Wheeler Australia Pty Ltd. On application of the CEPU and pursuant to my powers pursuant to section 586 of the FW Act, I amended the Application to change the name of the Respondent to AMEC Foster Wheeler Australia Pty Ltd (AMEC). 1

[6] The issues in dispute could not be resolved at the Conference. At my request, the CEPU agreed to reschedule a site visit they had given notice of and the Conference was adjourned to allow the parties to have further discussions.

[7] On 27 January 2021, the parties were requested to provide an update on the status of the dispute. Both Mr Clarke and Ms Heffernan indicated that the matter was not yet resolved. Mr Clarke sought a further adjournment of the Application. Ms Heffernan requested that the Application be set down for a hearing. Given the nature of the Application and the statutory obligation to determine matters expeditiously, the parties were advised that directions would be issued for the determination of the Application (Directions).

[8] Directions were issued to the parties on 3 February 2021. The Directions required the parties to file a Statement of Agreed Facts (SOAF) on 11 February 2021. The CEPU provided a draft SOAF to AMEC on 8 February 2021. AMEC did not provide a response until the evening of 17 February 2021.

[9] On 10 February 2021, Mills Oakley filed a Form F53 – Notice that a person (a) has a lawyer or paid agent; or (b) will seek permission for a lawyer or paid agent to participate in a conference or hearing advising that they were acting for AMEC. In attached correspondence to Chambers, Mills Oakley alleged that I had expressed predetermined views as to the merits of the Application. In particular that:

“We are further instructed that the Deputy President conducted a lengthy conciliation conference in the above matter on 19 January 2020. We are instructed that during this conference:

•  the Deputy President expressed a clear view that the Applicant’s claim was entirely meritorious, and the Respondent had no reasonable basis to defend it;

•  the Deputy President expressed that view during both private and open sessions; and

•  the Deputy President maintained that view despite the Respondent’s arguments to the contrary.”

[10] Mills Oakley indicated that AMEC objected to me arbitrating the Application and requested that I recuse myself.

[11] On 11 February 2021, Ms Heffernan wrote to Chambers stating that the CEPU opposed the request that I recuse myself on the grounds that:

“… there were no statements made, either in open session or private session with the Applicant, in which the Deputy President expressed her views on the merits of the application.”

[12] On 11 February 2021, Chambers wrote to the parties as follows:

“Dear Parties

As is the Deputy President’s practise at the outset of all conferences she holds, she informed the parties at the conference held on 19 January 2021, that any views she expressed were not her firm fixed or final views but were intended to assist the parties reach a conciliated outcome, or to identify for the parties potential evidentiary or legal complexities they might face if the matter proceeds to hearing.

The Deputy President has not reached any final or fixed view about the merit of the Application and did not express that she had done so in either joint or separate session.

The Deputy President does not propose to request the reallocation of the Application.

If the Respondent wishes to make a recusal application, they should inform Chambers by 4pm AWST, Friday, 12 February 2021 and directions will be issued for the Respondent to file submissions and evidence in support of the recusal application.

In the interim, the Directions for the determination of the substantive Application remain on foot and must be complied with.”

[13] On 12 February 2021, Mills Oakley wrote to Chambers stating that:

“We are instructed that the Respondent does not believe a recusal application hearing is appropriate in this circumstance, and that the Deputy President ought seek that the matter be allocated to another member.

The Full Bench in CFMMEU v Watpac Construction Pty Ltd [2019] FWCFB 3855 (Watpac) found (at [47]) that “once a party to a dispute objects to a member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration. This is particularly the case where the member has participated in private discussions separately with the parties in conciliation…” [emphasis added]. Our client has objected to the Deputy President arbitrating the matter. Consistent with Watpac, that objection “should by itself be enough” to persuade the Deputy President to reallocate the matter. The fact that the Deputy President participated in private discussions separately with the parties – and (as set out in previous correspondence) we are instructed that the Deputy President expressed views about the merits of the dispute – only further supports that conclusion.

The Full Bench in Watpac gave cogent reasons as to why a recusal application hearing is not required or desirable in these circumstances. Those reasons included:

• the evidentiary challenges posed by a recusal application hearing in light of the fact that conciliation proceedings are not recorded (at [48]-[49]); and

• recusal application hearings run the risk of undermining the effectiveness of the conciliation process (at [50]). Any recusal application hearing will “inevitably expose in open court the content of supposedly private and confidential discussions designed to settle matters by consent. The risk that such a hearing might occur has the potential to discourage the parties from being frank and open in conciliation. This is clearly undesirable from a public policy perspective”. [emphasis added]

If the Deputy President is not minded to reallocate the matter (without conducting a recusal hearing), we are instructed to write to the President of the Commission and request that his Honour direct that the matter be transferred to another member under section 582(4)(d) of the Fair Work Act 2009 (Cth). We look forward to hearing from Chambers in that regard.”

[14] As they foreshadowed on 15 February 2021, Mills Oakley wrote to the President of the FWC, Justice Ross, requesting that he exercise his powers under section 582(4)(d) of the FW Act to allocate the Application to a different Member. The President responded the following day to inform Mills Oakley that he did not consider it appropriate for him to reallocate a matter based on the submission by one party, particularly in circumstances where the other party objects.

[15] In light of Mills Oakley continuing to press the request to reallocate the matter, the Application was listed for a Hearing on 18 February 2021.

Permission to be represented

[16] The Notice of Listing invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.²

[17] AMEC sought permission to be represented at the Hearing.

[18] Having considered the submissions of the parties, leave was granted to AMEC to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

Evidence

[19] The Notice of Listing directed the parties to file submissions and evidence in relation to the recusal request made by AMEC.

[20] Materials were filed on behalf of AMEC on 16 February 2021 and materials were filed by CEPU on 17 February 2021.

[21] AMEC filed a witness statement of Mr Clarke. Notwithstanding that Mr Clarke refers in his witness statement to detailed notes that he took during the Conference, these were not tendered as exhibits. The CEPU filed a witness statement of Mr Woodage. Neither party sought to examine, or cross examine either witness at the Hearing.

Consideration

[22] AMEC seeks that I exercise my discretion to transfer the Application to another Member of the FWC on what it describes as “public policy grounds” articulated by the Full Federal Court in Re Heap, in the matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC 36; 128 IR 346 (Re Heap) and by Full Benches of the FWC in CFMMEU v Watpac Construction Pty Ltd[2019] FWCFB 3855 (Watpac Case) and United Firefighters' Union of Australia v Mr Gavin Wright; Country Fire Authority[2020] FWCFB 3315 (UFU Case).

[23] In support of its application, AMEC filed a witness statement by Mr Clarke. On Mr Clarke’s account, I expressed a concluded view about the Application in both the joint and private session. Mr Clarke’s statement runs to five pages and is summarised in AMEC’s submissions in the following way:

“(a) the Deputy President commenced by describing the process that would be followed in the conference to the parties, saying words to the effect that her purpose was to assist the parties in reaching a compromise position to settle the dispute;

(b) the Deputy President then invited the Applicant to explain the basis of the application. Ms Heffernan (appearing for the Applicant) said words to the effect that the Applicant’s organisers should be able to hold discussions on the veranda/BBQ areas adjacent to the crib rooms on the Project site, on the basis that they were ‘default’ locations for the purposes of s 492(3);

(c) the Deputy President asked Ms Heffernan if the Respondent had explained to the organisers why access was not permitted to the veranda/BBQ areas for right of entry discussion purposes. Mr Clarke said words to the effect that it had been explained to the organisers that the crib rooms were the default room;

(d) the Deputy President asked Mr Clarke to outline the Respondent’s position in relation to the dispute. Mr Clarke said words to the effect that:

(i) the crib rooms were the Respondent’s default room for the purposes of holding discussions for right of entry;

(ii) each contractor on site has their own allocated crib room, which allows for the efficient administration of the right of entry process;

(iii) since the project’s inception, the Respondent has had in place a right of entry procedure;

(iv) all entries since the project’s inception prior to 17 November 2020 had been completed at the relevant contractor’s crib rooms;

(e) the Deputy President said words to the effect that she considered the FW Act to be quite clear in respect of what a ‘default’ location was, that is, ‘any’ area, and that the BBQ Areas met this definition;

(f) the Deputy President then broke the conference into private session and directed Mr Clarke and Mr O’Reilly to a separate adjoining room away from the other attendees;

(g) The Deputy President then raised in private conference several perceived problems with the Respondent’s case, including:

(i) saying words to the effect that “there are a lot of cases where this area…is where employees could have their meal breaks”;

(ii) suggesting to the Respondent that it would “be better for the unions to meet with all employees as opposed to multiple visits in order see all members”; and

(iii) saying words to the effect that the matter “could go to the Federal Court which could be heard by a judge who is not familiar with WA”, “given the COVID sensitivities in Victoria [the Respondent] would not have a strong case”, and “the costs and penalties could be high”.”

[24] Mr Woodage and my own recollections differ from those of Mr Clarke.

[25] Mr Woodage’s recollections, relevantly, are that:

“The Deputy President did not make her views known to the parties, in open session, about whether the BBQ Area is a "default" location for the purpose of the Act.

…

The Deputy President did not seek the parties' agreement about me meeting members in the BBQ Area. She requested that the Respondent propose an alternative area that meets the needs of both parties, for the Applicant to consider prior to its entry on 27 January 2021. In exchange, she requested I withdraw my entry notice for 20 January 2021. She did not suggest that the appropriate location would be the BBQ Area.”

[26] My records and recollections differ from Mr Clarke’s, materially, including as follows:

a. The Conference was not lengthy. It lasted for approximately one hour;

b. The parties were informed at the outset of the Conference that the Conference provided the parties with an opportunity to find a fast, flexible and cost-effective agreed outcome, however if a resolution could not be reached directions would be issued for determining the matter.

c. When I asked Mr O’Reilly his recollections of what occurred Mr Clarke, who was not present at the time of the entry, interrupted to provide a response;

d. Mr Clarke appeared to lack some respect for the proceedings. He ignored protocols outlined to him prior to the commencement of proceedings. In private conference he interrupted and talked over me;

e. I did not observe Mr Clarke taking notes in the split session;

f. Mr Clarke was adamant that his position was correct. I explained that an array of case law existed in relation to the issue which he may wish to review, in the event that the matter proceeded to a hearing;

g. Mr Clarke’s main concern appeared to be that the union were visiting the site often and that other individuals on site not covered by the CEPU could access the meetings if the meetings were held in the communal BBQ area preferred by the CEPU. The union had explained that they were forced to attend so regularly because the meeting location proposed by Mr Clarke was too small (particularly in light of social distancing requirements) to accommodate all their members at once. I therefore explored the possibility of the parties resolving the matter by agreeing that the meetings be conducted at a location where all members could be safely accommodated at once (not necessarily the BBQ area). Mr Clarke wanted further time to consider this proposal. To avoid a further deterioration of the relationship between the parties, I asked the union to defer a scheduled site visit to give Mr Clarke some further time to consider his position. I instructed the parties that they were required to provide an update to Chambers and in the absence of agreement directions would be issued to the parties for the Application to be determined by arbitration.

[27] I have not yet reached any final or fixed view about the merit of the Application and did not express that I had done so, in either joint or separate session.

[28] I also note, that as is my practise at the outset of all conferences I hold, I informed the parties that any views I expressed in joint or private session were not my firm, fixed or final views but were intended to assist the parties reach a conciliated outcome, or to identify for the parties potential evidentiary or legal complexities they may wish to consider if the matter proceeds to hearing so that they could prepare for the hearing. As I routinely arbitrate matters which I conciliate, I am particularly careful to avoid using language which might be interpreted as me having reached any conclusion about the facts or law in dispute.

[29] AMEC has made it clear in its submissions that it does not seek that I recuse myself on apprehended bias grounds. It does not identify any statement or conduct which it says might form the basis of an apprehension of bias.

[30] Furthermore, AMEC does not identify any particular statement which it says it relies on in the absence of apprehended bias to meet some lower threshold, justifying the exercise of a discretion to transfer the Application to another Member.

[31] In effect, AMEC assert that because I have conciliated the matter and it has requested that the matter be reallocated, then that of itself, compels me to exercise a discretion to transfer the matter to another Member. In support of this submission, AMEC rely on comments made by the Full Bench in the Watpac Case.

[32] The comments made by the Full Bench in the Watpac Case relate to an appeal from an application for recusal on the basis of a reasonable apprehension of bias. In that case the Commission Member had:

a. conducted a conference;

b. made a site inspection;

c. purportedly described safety issues raised by the respondent as a ‘smoke bomb’;

d. given consideration to matters of fact not raised by the parties; and

e. given consideration to making a Recommendation.

[33] On appeal, the Full Bench ultimately found that there was no basis to find a reasonable apprehension of bias and upheld the Member’s decision not to recuse herself. The Full Bench went on to make some comments in relation to Members reallocating matters which they have conciliated prior to arbitration. The comments made by the Full Bench in relation to Members arbitrating matters which they have conciliated are obiter, and as such do not create any binding precedent. Notwithstanding comments it made about the appropriateness of the reallocation of matters at the request of the parties, the Full Bench remitted the matter back to the same Member. Had it deemed it appropriate the Full Bench could have reallocated the matter to another Member or determined the matter itself.

[34] In relation to the Full Bench’s obiter comments, I note that the legislature removed provisions which prevented a Member arbitrating a matter which the Member had conciliated in 2005 (provisions which had had existed in some form in the industrial legislation since the turn of the century). The legislature has chosen not to reinsert those provisions in any form not withstanding substantial overhauls to the legislation since 2005.

[35] I concur with the views of Deputy President Asbury in Aaron Cullen v AEG Ogden (Convex) Pty Ltd trading as Brisbane Convention and Exhibition Centre[2019] FWC 6986 at [31], where she expressed the view that:

“Further, I do not accept that the decision of a Full Bench of the Commission in CFMMEU v Watpac Construction Pty Ltd T/A Watpac2 (Watpac) requires that I automatically decide not to hear a matter simply because a party objects to me doing so. I also do not accept that the Full Bench Decision in Watpac establishes a process whereby a request directed to a particular Member of the Commission that the Member not hear a matter on the grounds that the member has conciliated the matter or otherwise dealt with it, must automatically be acceded to by the Member to whom it is directed.”

[36] At [32], Deputy President Asbury noted that the decision in the Watpac Case concerned an application under section739 and expressed the view that observations about conciliation in the context of the facts in the Watpac Case cannot be automatically extrapolated to other matters. She went on to state that:

“[33] Applications dealing with the broad range of matters within the Commission’s jurisdiction are allocated to Members by the President or by other Members exercising delegated allocation powers. Where a party makes an application seeking that a Member of the Commission to whom a matter has been allocated not hear the matter, the application is considered against long established principles dealing with actual or apprehended bias or on the basis of the requirements of the Act that Members of the Commission deal with all matters within the jurisdiction of the Commission in accordance with equity, good conscience and the substantial merits of the case. The Full Bench in Watpac gathered together the cases in which those principles were established and set out its view about the framework or the circumstances in which Members of the Commission should apply them. That framework is set out in paragraphs [47] and [48] of the Decision as follows:

“[47] In our view, once a party to a dispute objects to a member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration. This is particularly the case where the member has participated in private discussions separately with the parties in conciliation, the member has expressed views in conciliation about the merits of the dispute, the member has been made aware of without prejudice settlement offers made in conciliation, or one or more parties have made concessions in conciliation which they are not willing to make in a subsequent arbitration.

[48] This can occur without holding the sort of recusal hearing the Commissioner conducted in this case. We note that such hearings are fraught with difficulty.”

[34] The Full Bench in Watpac did not stipulate that a Member who receives an objection or a request that the Member not hear a matter if the Member has conciliated the matter or done any of the things listed in those paragraphs, must comply with the request and seek that the matter be allocated to another Member. The observation of the Full Bench that a Member can cause a file to be reallocated without holding a recusal hearing and that such hearings are fraught with difficulty, is not a binding decision to the effect that applications that Members not hear matters that have been allocated to them should simply be reallocated to another Member as a matter of course, by the Member to whom they are made simply because a party makes an objection to the matter being heard by the original Member to whom it was allocated. The comments of the Full Bench in Watpac also need to be considered in the context of the facts in that case which as previously noted concerned an application to deal with a dispute under s. 739 of the Act.

[35] I view an application that I not deal with a matter that has been allocated to me as a serious application which I am free to determine in the manner I see fit on the basis of my own consideration of equity and good conscience or consistent with well-established principles about recusal, subject of course, to any appeal which an affected party may make. I can do so by requesting that the matter be allocated to another Member or conduct a hearing to determine the matter. In making a decision about whether or not I should deal with or continue to deal with a particular application, and the manner in which I should make such a decision, the point at which the application that I not deal with the matter is made may be relevant. Other relevant considerations may be the availability of another Member of the Commission to hear the application if it is reallocated and the impact of reallocation on the listed hearing dates and the other parties who may have expended cost and time preparing for a hearing which is scheduled at a particular time. Other parties may also have particular reasons for wanting to maintain the original hearing dates such as the availability of witnesses or the fact that arrangements have been made for employees to be absent from the workplace to participate in a listed hearing. It will often be necessary to hear from other parties before deciding whether or not to accede to a request that I not deal further with an application.”

[37] The workload of the other Members in Western Australia is currently at unusually high levels. In addition to dealing with an increase in Western Australian matters arising from the COVID-19 pandemic we are also assisting our colleagues in New South Wales and Queensland by hearing and determining applications originating in their regions. The reallocation of this matter would result in a delay in its hearing and determination. Relevantly, the reallocation is also opposed by the CEPU.

[38] Even if the comments made by the Full Bench in the Watpac Case were binding, I am not of the view that the “public policy grounds” identified by the Full Bench as considerations in having a matter reallocated, arise in this case.

[39] AMEC in its submissions refer to the following concerns which the Full Bench in obiter in the Watpac Case considered might arise if a Member arbitrated a matter which the Member had conciliated:

a. The Member might be influenced by the content of any settlement negotiations;

b. The Member might be influenced by concessions the party might make for the purposes of conciliation which they would not concede in arbitration; and

c. The absent party is unaware of what has been said in private discussions.

[40] AMEC also refer to the following circumstances identified, in obiter, by the Full Bench in the Watpac Case which might cause a Member to have an Application reallocate:

a. The Member has participated in private discussions separately with the parties;

b. The Member has expressed views in conciliation about the merits of Application;

c. The Member is aware of without prejudice settlement offers; and

d. One or more of the parties have made concessions in conciliation which they are not prepared in arbitration.

[41] The “public policy grounds” relied upon by AMEC do not arise in this case, even on AMEC’s own evidence. The evidence of Mr Clarke reveals that:

a. No settlement offers were made during the conciliation;

b. AMEC did not concede any points during the conciliation;

c. Nothing was said by Mr Clarke during the private session that would not be raised in AMECs evidence and submissions filed in advance of the Hearing; and

d. The parties were made aware of the discussions held in separate session.

[42] In relation to the question of whether I expressed views about the merits of the dispute I note that:

a. I did not express any firm, fixed or final views about the merits of the Application. I have not reached any firm, fixed or final views about the merits of the Application;

b. The parties were advised at the outset of the Conference that any views I expressed about the Application during the joint or separate sessions were not my firm, fixed or final views but were intended to assist the parties identify potential conciliated outcomes or identify legal or evidentiary complexities they might face if the matter proceeded to Hearing;

c. Mr Clarke’s assertion that final views were expressed in the joint session is contrary to the evidence of Mr Woodage and my own recollections;

d. The submissions of AMEC at [16] appear to concede that any views which were expressed in private Conference were expressed at the highest in provisional terms; and

e. My own record and recollections are that I did not express a provisional view in private or joint session.

[43] There are public policy reasons for exercising hesitancy in reallocating matters in circumstances where no evidence of apprehended bias is alleged or made out.

a. The Commission has for many years operated a panel system whereby particular Members are allocated matters from particular industries. This allows Members to build their technical knowledge of the industry and to ensure consistency in outcomes across industries. These gains would be lost if matters were routinely reallocated after conciliation;

b. In some registries such as Perth, Adelaide, Canberra, Tasmania, Newcastle and Darwin there are a limited numbers of Members available to whom matters might practicably be reallocated. Any reallocations would necessarily delay the expeditious disposition of matters;

c. Reallocation at the whim of parties encourages perceived ‘forum shopping’, undermining the public perception of the independency of the Commission;

d. Having the Member who is to arbitrate the matter identify at conference legal or evidentiary complexities, provides public utility by ensuring that the parties are better prepared for arbitration before that Member. Hearings are therefore able to proceed more efficiently particularly where the parties are self-represented.

[44] Having considered the submissions of the parties, the evidence tendered, the relevant authorities and public policy considerations, I determined that it was not appropriate to reallocate the Application. I therefore informed the parties at the conclusion of the recusal hearing that AMEC’s request that the matter is transferred to another Member was declined.

DEPUTY PRESIDENT

Appearances:

C. Taylor for the Applicant.

A .Pollock for the Respondent.

Hearing details:

2021.

Perth.

18 February 2021.

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2 Warrell v Walton (2013) 233 IR 335, 341 [22].