DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
(C2018/6039)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT SAUNDERS

SYDNEY, 17 JANUARY 2019

Introduction and background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision of Senior Deputy President Hamberger issued on 18 October 2018 1 (Decision). The Decision was made by the Senior Deputy President in the course of dealing with applications made by the CFMMEU pursuant to s 512 of the Fair Work Act 2009 (FW Act) for entry permits to be issued to three of its officials (John Tucker, Shaun Desmond and Matthew Parfitt),2 and specifically concerned an application by the CFMMEU that the Senior Deputy President should recuse himself from hearing the applications on the ground of a reasonable apprehension of bias. This application was rejected in the Decision. The CFMMEU contends in its appeal that the Decision was attended by appealable error.

[2] The CFMMEU’s recusal application was founded on the fact that, on 17 March 2016, the Senior Deputy President had “retweeted” a “tweet” originally issued by the then Minister for Employment, Senator Michaelia Cash. A “tweet” is a message sent using Twitter, which is an online news and social networking service. When a person “retweets” someone else’s “tweet”, it is reposted on the person’s online Twitter profile and sent to followers of that profile. The “tweet” posted by Senator Cash and “retweeted” by the Senior Deputy President contained the message in text: “Labor gets millions in donations from the CFMEU. That’s why they’re against restoring the ABCC. Bring back the #ABCC”. Beneath this appeared an image of Bill Shorten, the Leader of the Opposition, dressed as a cricketer and holding a cricket bat and helmet in the air. Superimposed at the top of the image was a newspaper headline which read “CFMEU notches up 100 members before courts”, and at the bottom were the words “A Century of Shame”.

[3] The “retweet” appeared on the Senior Deputy President’s profile until 27 July 2017, and could be seen by anyone who accessed his Twitter profile. On that date, the CFMMEU 3 made an application in chambers for the Senior Deputy President to recuse himself from dealing with an earlier application for the issue of an entry permit to one of the CFMMEU’s officials. The “retweet” appears to have been removed from the Senior Deputy President’s Twitter profile shortly after the recusal application was made in chambers. The Senior Deputy President did not issue any decision recusing himself, but the entry permit application in question was shortly afterwards re-allocated to another member of the Commission for determination. It may be noted in this connection that the Senior Deputy President was at that time and remains the head of the Commission’s Organisations Panel, and as such has delegated authority to allocate…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] FWCFB 214
Decision Date: 17 JANUARY 2019

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appealed a decision made by Senior Deputy President Hamberger, seeking his recusal from hearing applications for entry permits for three of its officials. The appeal was based on the Senior Deputy President's retweet of a tweet by then Minister for Employment, Senator Michaelia Cash, which contained a critical message about the CFMMEU. The CFMMEU argued that the retweet created a reasonable apprehension of bias.

The court considered whether the Senior Deputy President's retweet led the fair-minded lay observer to apprehend that he might not bring an impartial mind to the resolution of the entry permit applications. The court found that the tweet was primarily directed at the Leader of the Opposition, Bill Shorten, and the Australian Labor Party, and only secondarily at the CFMMEU. The court also found that the tweet did not directly criticise the three officials in question or their suitability to hold entry permits.

The court concluded that the Senior Deputy President's retweet did not create a reasonable apprehension of bias, and dismissed the CFMMEU's recusal application. The Senior Deputy President could continue to hear and determine the entry permit applications for the three officials.

The court granted permission to appeal, upheld the appeal, and quashed the Senior Deputy President's decision. The court also rejected the CFMMEU's application for the Senior Deputy President's recusal in the entry permit matters.

Orders