Daniel Crowden v Clive Peeters Limited
[2010] FWA 4596
•22 JUNE 2010
[2010] FWA 4596 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Crowden
v
Clive Peeters Limited
(U2010/6371)
COMMISSIONER ASBURY | BRISBANE, 22 JUNE 2010 |
Application for unfair dismissal remedy - application for Commissioner to withdraw on grounds of apprehended bias.
Background
[1] Mr Daniel Crowden has made an application for an unfair dismissal remedy to Fair Work Australia. 1 The respondent in the matter is Clive Peeters Limited. The respondent is represented by Mr Nick Tindley of the National Retail Association (NRA). The matter was not resolved in conciliation, and has been allocated to me for hearing. On 14 April 2010 a notice listing the application for a Directions conference on the 10 June 2010 at 11.00 am, was forwarded to the parties. On 4 June 2010 the NRA advised by email that it would attend the conference by telephone and provided a contact telephone number for that purpose.
[2] On 9 June 2010 at 4.37 pm, correspondence was received by email from the NRA in the following terms:
“Dear Commissioner
RE: Matters involving the National Retail Association Ltd
We refer to correspondence from our Executive Director, Mr Gary Black, dated 3 June 2010, and the hearing in relation to various Enterprise Agreement matters before you on 4 June 2010. The National Retail Association has asked that you recuse yourself from all matters involving NRA on the basis of reasonable apprehension of bias.
We note that the matter of Crowden v Clive Peeters Ltd (U2010/6371) is listed for conference before you at 11.00 am on 10 June 2010. We continue to press our request that you recuse yourself from all matters involving the NRA including U2010/6371.
Yours faithfully
Nick Tindley
Director
Employment Law Division”
[3] I conducted a conference on 10 June 2010, at which the NRA indicated that it intended to press the application that I disqualify myself from this and all other matters in which it is representing a party. The matter was listed for hearing on 15 June 2010 for the purpose of hearing this argument.
[4] Shortly before the start of the hearing on 15 June 2010, I released a decision 2 in an earlier application by the NRA in essentially the same terms, which was heard on 4 June 2010. I will refer to that matter as the first application in relation to apprehended bias. Mr Tindley was provided with a copy of that decision before the hearing into the present matter (the second application in relation to apprehended bias) commenced, and was given an adjournment to enable him to consider that decision. Mr Tindley then indicated that he intended to make further submissions in relation to the allegation of apprehended bias.
[5] The first application by the NRA centred on the “substantially different approach” I was said to have taken to applications by the NRA for approval of enterprise agreements, compared to that adopted by other members Fair Work Australia. The decision in the first application, released on 15 June 2010, dealt with all matters raised by the NRA in relation to the approval of enterprise agreements. The NRA, represented in the hearing of the first application by Mr Moore, put its case, and the decision was reserved.
[6] The second application was that I disqualify myself from hearing U2010/6371. It became apparent in proceedings in respect of the second application, that the NRA sought to have a second bite at the cherry by revisiting the first application in relation to apprehended bias and putting further and different arguments. This was despite Mr Tindley being provided with a copy of the decision in relation to the first application, and the opportunity to read and consider that decision, before proceedings in relation to the second application commenced.
[7] Given the apparent lack of understanding about the purpose of the proceedings on 15 June 2010, and the fact that the decision in the first application was released shortly before the hearing on 15 June 2010 in relation to the second application, I will deal with all of the arguments raised by Mr Tindley on that date.
The Arguments in the second application
[8] It was unclear whether the first application alleged actual or apprehended bias. It is clear from the submissions in the second application that the NRA is alleging apprehended bias. Mr Tindley made the following submission:
“Commissioner, it is NRA’s contention that the involvement of yourself in a number of trading hours matters during your previous role as a Commissioner of the Queensland Industrial Relations Commission gives rise to circumstances where a fair minded lay observer might reasonably apprehend that you may not bring an impartial and unprejudiced mind to the resolution of matters involving the NRA. The pertinent matters – and I will provide the matter numbers for them – were B/2004/1489, which is an application into regional Queensland, southern and eastern area; TH/2007/7, the Mackay area; TH/2008/40 the Bargara and Mission Beach areas. Each of these matters was subject to appeal to the Industrial Court and those appeal matter numbers were C/2005/74 and C/2008/40.”
[9] B2004/1489 was an application for extended trading hours in Regional Queensland (Southern and Eastern Area). I was a member of the Full Bench which dealt with that application. Mr Tindley pointed to a paragraph in the decision of the Full Bench where the following statement appears:
“[229] It was suggested that local authorities were subjected to pressure from independent retailers not to take a stance. However, it could equally be argued that major shopping centres have more financial ability to contribute to election expenses of Councillors and therefore apply their own brand of subtle pressure for Sunday trading support. Any pressure exerted by fear of losing votes from independent retailers and small business is, in our view, matched by equal pressure capable of being applied by major retailers, shopping centre owners and developers. It would be disappointing if those were the reasons local authorities failed to respond.” 3
[10] It is clear from the preceding paragraph that this comment relates to the failure of local authorities in that case to adopt a formal motion either supporting or opposing extended trading hours, and to provide proper and informed indications to the Queensland Industrial Relations Commission about their views, in circumstances where the relevant legislation required those views to be taken into account.
[11] Mr Tindley submitted that in the appeal proceedings following the Full Bench decision, the NRA submitted that the comment made by the Full Bench in paragraph [29] of the decision, was scandalous and prejudicial and was unfounded speculation with no basis in evidence or fact. According to Mr Tindley’s submission, in the appeal decision, President Hall made the following observation:
“Save for a gratuitous and offensive comment about the capacity of shopping centre proprietors to influence local government, the observations of the full bench may be traced directly to passages in the transcript and to materials in the exhibits or to inferences from those passages and materials.”
I will deal later in this decision with the fact that this submission misquotes President Hall.
[12] Mr Tindley submitted that the decision of President Hall confirmed that the comment was more than incorrect, and was “scandalous, prejudicial and highly offensive” to the NRA and its members.
[13] In relation to TH/2007/7 and TH/2008/40, Mr Tindley pointed to the successful appeal by the NRA against decisions of two Full Benches of which I was a member, in these matters, which respectively involved applications by the NRA for extended trading hours in Mackay and Bargara/Mission Beach. The NRA successfully appealed those decisions in the Industrial Relations Court of Queensland: C/2008/40. 4
[14] This matter was raised by the NRA in the first application in relation to apprehended bias, and was dealt with in the decision 15 June 2010 5. As previously stated, it is a matter of public record that in that decision, the Industrial Court of Queensland constituted by President Hall, upheld an appeal by the NRA against three Full Bench decisions. I was a member of two of the Full Benches, subject of that appeal. In doing so, President Hall made a finding of apprehended bias against three members of the Queensland Industrial Relations Commission including me. In relation to this matter, I reiterate what I said in the decision of 15 June 2010 and do not intend to comment further.
[15] Mr Tindley also sought to make further submissions about the approach taken by me to the approval of 70 enterprise agreements lodged by the NRA. This matter was dealt with in the decision 6 released on 15 June 2010. The further submissions Mr Tindley thought to make, centred on three matters, which are said to have “further expanded” the concern the NRA has about the possibility of bias on my part.
[16] The first matter is said to be comments I made in proceedings relating to approval of enterprise agreements to the effect that wage rates are effectively locked in for four years and there is no provision in the agreements for wage increases during their term. Mr Tindley submitted that this view does not take into account the effect of s. 206 of the Fair Work Act 2009, (the Act) which provides that a base rate in an enterprise agreement cannot be less than the base rate of pay under a modern award that would otherwise cover employees.
[17] The second matter is that I have commented about the pre-approval process in relation to the agreements being “truncated”, when the time frames comply with the time frame stipulated in the Act. The third issue is that I questioned whether employees had been given copies of or provided with access to the written text of provisions of the Act dealing with parental leave, incorporated by reference into agreements. Mr Tindley pointed to other enterprise agreements I have approved, which reference provisions of the Act and contended that I have not raised the same issue with the employer parties in those matters.
Conclusions
[18] I do not accept that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of matters before Fair Work Australia where the NRA is representing the employer party.
[19] Essentially the NRA’s submission requires acceptance of a proposition to the effect that if, a finding of apprehended bias is made against a member of a Tribunal in any one proceeding, that finding operates in perpetuity in all future proceedings involving the party (or representative of the party) that alleged bias. The NRA submission also requires acceptance of the proposition that where a decision of a member of the Tribunal is successfully appealed, that member is disqualified from dealing with all future matters involving the appellant, or the appellant’s representative.
[20] In my view, the NRA is seeking to draw an even longer bow in the second application in relation to apprehended bias, by raising the 2004 matter. The submission in relation to this matter is at best, misleading. The comment made by President Hall was misquoted by Mr Tindley in his submission. What President Hall actually said was:
“Save for a gratuitous and offensive comment about the capacity of the shopping centre proprietors to influence local government (which led nowhere), the observations of the full bench may be traced directly to passages in the transcript and to materials in the exhibits or to inferences from those passages and materials.” 7 (Emphasis added).
[21] I can only wonder at why Mr Tindley would omit part of the comment of President Hall which he purported in his submission in the current proceedings, to quote verbatim. It should be noted that the appeal in the 2004 matter was dismissed - a fact also omitted from Mr Tindley’s submission. Further, if President Hall intended to make a finding that the comment was “scandalous, prejudicial and highly offensive” to the NRA and its members, doubtless President Hall would have stated that in his decision.
[22] I am unable to accept the propositions inherent in the NRA’s submissions about involvement in trading hours applications in my “former role” as a member of the Queensland Industrial Relations Commission. That role is not a “former role”. I am a member of the Queensland Industrial Relations Commission, and hold a dual appointment as a member of Fair Work Australia.
[23] Appeals are a fact of life for any judicial officer. Since my appointment to the Queensland Industrial Relations Commission in 2000, my decisions have been appealed on a number of occasions. Some appeals have been upheld and some have been dismissed. In my view, no fair minded lay observer could reasonably apprehend that because the NRA has successfully appealed decisions of two Full Benches upon which I sat, that I am biased against the NRA. I am also of the view that no fair minded lay observer could reasonably apprehend that a finding of apprehended bias against a full bench of which I was a member, in all of the circumstances of the relevant matters, operates in perpetuity, so that I am disqualified from sitting on any subsequent matter involving the NRA, including in the role of a representative, as it is in the present matters.
[24] In relation to the approval of enterprise agreements involving the NRA, the questions I have asked the NRA relate to matters about which I am required to be satisfied in order to approve such agreements. I have asked the same questions on three occasions - in hearings on 31 March and 22 April 2010, and in a decision released on 15 June 2010. I have not received a response to those questions. Mr Tindley’s submissions in the second apprehended bias application are the first substantive response I have received to those questions. Unfortunately, the context in which the response was received and the fact that the response addresses some and not all of my questions, leads to a situation where I am presently unable to accept that the NRA has adequately addressed the issues I have raised in relation to the enterprise agreements.
[25] I am still awaiting a response from the NRA to issues that I have gone to great length to identify. It is notable that the NRA has conceded in other proceedings before Fair Work Australia that agreements in virtually identical terms to those in the present proceedings, do not pass the no disadvantage test, because they contain a provision allowing for employees to work voluntary additional hours at ordinary rates, in circumstances where those hours would otherwise be paid at overtime rates. 8 It is also notable, that on appeal by the NRA against a decision refusing to approve those agreements, a Full Bench of Fair Work Australia has said that the accuracy of employer declarations, is questionable.9
[26] A fair minded lay observer may apprehend that other members of Fair Work Australia are provided with responses to issues raised with the enterprise agreements filed by the NRA and I am not. A fair minded lay observer may apprehend that the NRA is requesting one member of Fair Work Australia to withdraw on grounds of apprehended bias in some matters, while conceding before other members that agreements in virtually identical terms do not meet the necessary requirements for approval.
[27] In my decision in relation to the first apprehended bias application, I dealt with the issue raised by the NRA to the effect that my approach has been different to other members of Fair Work Australia. It has always been the case that reasonable minds may take different views in relation to the same matter. It remains the case however, that I have not refused to approve any of the enterprise agreements lodged by the NRA, nor have I required undertakings in relation to the operation of the agreements. I have simply asked questions about matters relevant to the statutory requirements for approval. I do not propose to revisit this issue; I will not disqualify myself from dealing with the enterprise agreements concerned; and I will not approve the agreements until acceptable answers are received.
[28] In the second apprehended bias application, the NRA seeks to point to other agreements I have approved which are said to contain the same provisions as those lodged by the NRA, and contends that I have not asked the same questions of those employers that I have asked the NRA. This is said to give rise to an apprehension of bias against the NRA. I do not accept that argument.
[29] I have now read 70 virtually identical applications for the approval of 70 virtually identical agreements. The statutory declarations completed by employer parties in support of the applications for approval of the agreements are replete with errors and omissions that are also virtually identical. In my view it is more probable than not, that a fair minded lay observer might apprehend that my views about the applications are based on looking at identical errors and omissions in each of 70 applications, rather than any bias against the NRA.
[30] The NRA contends that the question I have asked about the wage rates in the agreement being locked in for the term of the agreement ignores the effect of s. 206 of the Act.This is the first submission that the NRA has made in response to the question. However, my question also went to whether the effect of this term of the agreement was explained to employees before they voted to approve the agreement. The NRA also contends that what I have termed a truncated approval process, whereby in a significant number of cases all steps in the pre-approval stage have been taken on the same day, is consistent with the terms of the Act. That may be the case. However, in the context of 70 agreements supported by statutory declarations with virtually the same errors and omissions, this is an issue that is appropriate for me to raise, and the submission about this matter, in the second apprehended bias application, is the first submission the NRA has made in response to my question. For the reasons set out above I await a proper response in relation to this and other matters.
[31] The NRA further contends that other agreements I have approved incorporate terms by reference to other material such as statutory provisions dealing with long service leave or parental leave, and I have not asked the employers in those cases whether they provided copies of or access to copies of those materials to employees. When the agreements cited by the NRA in support of this contention are considered, it is immediately apparent that either the agreement specifically refers to the source of the entitlement by citing the statutory provision from which it is drawn, or I have received an undertaking from the employer which clearly identifies the source of the entitlement.
[32] It should also be noted that in a number of cases the person making statutory declarations in support of approval of the other agreements referred to by the NRA – either an organisation of employees which was a bargaining representative or the employer – has declared that material incorporated by reference was provided to employees or they were given access to such material before voting to approve the agreement. In short, I did not ask questions of the parties in those other matters, because the material filed in Fair Work Australia did not raise any questions. Alternatively, where I did ask questions the answers were sufficient to enable me to be satisfied that the requirements for approval had been met.
[33] I am pleased that the NRA is researching the terms of other enterprise agreements I have approved. It is to be hoped that this research will be employed in answering the questions I have posed; providing additional information to address errors and omissions in the statutory declarations; or drafting undertakings so that members of the NRA who have entrusted the NRA to assist them with making and lodging their agreements, can have their applications for approval of those agreements dealt with. I have made every endeavour to do so expeditiously in the face of continued non-responsiveness from the NRA.
[34] The application that I disqualify myself from hearing and determining U2010/6371 and all matters involving the NRA is refused. I have listed U2010/6371 for hearing in Townsville from 25 to 27 October inclusive, and directions for the conduct of that hearing will issue in the near future, as canvassed with the parties at the hearing on 15 June 2010.
COMMISSIONER
Appearances:
D Crowden on his own behalf.
N Tindley for Clive Peeters Limited.
Hearing details:
2010.
Brisbane:
June 15.
1 U2010/6371.
2 [2010] FWA 4418
3 National Retail Association Limited Union of Employers (B/2004/1489) (2005) 180 QGIG 484 at [29].
4 National Retail Association Limited Union of Employers AND Queensland Retail Traders and Shopkeepers Association and Others C2008/40 (2009) 190 QGIG 63.
5 [2010] FWA 4418.
6 [2010] FWA 4418.
7 National Retail Association Limited Union of Employers AND Queensland Retailers and Shopkeepers Association (Industrial Organisation of Employers) and Others (C/2005/74)(2005) 180 QGIG 1211 at 1214.
8 AG2009/22148; AG2009/22532; AG2009/22155; AG2009/22162; AG2009/22171; AG2009/22168; AG2009/22173; AG2009/22285; AG2009/22343 Per McKenna C. Transcript of Proceedings13 January 2010 PN25; [2010] FWA 339.
9 BUPA Care Services Pty Ltd (C2010/2624) P& A Securities Pty Ltd as trustee for the D’Agostino Trust T/as Michel’s Patisserie Murwillumbah and others [2010] FWAFB 2762.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR998480>
0
2
0