Gavin Wright v Country Fire Authority

[2020] FWC 1219

[2020] FWC 1219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gavin Wright
v
Country Fire Authority
(C2019/5842)

COMMISSIONER BISSETT MELBOURNE, 12 MARCH 2020

Recusal decision.

[1] On 14 February 2020 I issued a decision 1 (February Decision) in which I found that there were no grounds on which I should recuse myself from determining if the United Firefighters’ Union of Australia (UFU) should be granted leave to be joined to the dispute between Mr Wright and the Country Fire Authority (CFA). I also found that the UFU should be granted leave to intervene and be heard in that dispute. The UFU has appealed that decision but has not sought a stay on further proceedings.

[2] The UFU now makes application that I should recuse myself from arbitrating the application of Mr Wright on the grounds of apprehended bias.

[3] The background to this matter is set out in the February Decision referred to above and I do not repeat it here. The principles relevant to the determination of an application for apprehended bias are also set out in the February Decision. I have had regard to those principles in reaching my decision.

Evidence and submissions

United Firefighters’ Union of Australia and Country Fire Authority

[4] The UFU relies on the witness statement of the relevant UFU industrial officer and an employee of the CFA to whom Mr Wright apparently made comments following the conciliation of his application.

[5] The UFU submits that the comments I am said to have made about the UFU in conciliation “raise a strong inference of antipathy” to the UFU’s presence and the arguments it is anticipated the UFU would raise at hearing. For these reasons, it submits, the fair-minded observer might apprehend that I would not decide the matter impartially.

[6] The UFU claim that the claimed antipathy is exhibited through statements I made, expressed in “definite language…directed to facts and issues that required decision in the joinder application and will require decision in the arbitration.”

[7] The evidence of the UFU industrial officer relied on by the UFU is that:

•  I accepted assertions of Mr Wright and did not seek to interrogate him;

•  I was intolerant of arguments put by the CFA and did not attempt to understand those arguments (I said “[w]hy is this not resolved? It’s not hard”);

•  I questioned why the CFA did not have any operational staff present to assist in the matter;

•  I tested assertions put to me by the CFA referencing assertions put by Mr Wright;

•  I was “disinterested… and dismissive” in submission of the CFA with respect to consultation on the creation of the positions and indicated CFA was motivated by the desire to maintain industrial peace;

•  I accepted Mr Wright’s assertion that the CFA failed to run a proper selection process by stating that the CFA “run not a good process”; that the dispute “would not have occurred if the process was clear”; that the selection panel should have provided guidance on equivalence; and that “[h]iding behind vague statements of mandatory eligibly is not the way to do it”;

•  I accepted Mr Wright’s assertion as to the reason for the mandatory eligibility criteria including that it was designed to stop lateral entrants moving into the positions;

•  The UFU industrial officer indicated the UFU had a broad interest in the matter; and

•  The UFU industrial officer indicated that I should not reach any conclusions without hearing the evidence, a comment to which I (apparently) objected.

[8] The UFU also relies on a statement Mr Wright is said to have made to a colleague. Mr Wright said “words to the effect that the way the Commissioner questioned the UFU representative indicated her dissatisfaction with their involvement.” The UFU submits that this observation of Mr Wright “is telling”. It says that the possibility that an impartial and unprejudiced mind may not be applied to the task provides the grounds for recusal.

[9] In the alternative, and should I not recuse myself on the grounds of apprehended bias, the UFU submits that I should not determine the matter as I conciliated the application. 2 The UFU also submits that I have found that it has a legitimate interest in the application and that, in private discussion in conciliation, I expressed views as to the merits of the dispute.

[10] The CFA supports the application that I do not hear the matter on the grounds that I conciliated the application and therefore should not determine the matter. 3

Mr Gavin Wright

[11] Mr Wright submits that I have already dealt with the circumstances raised by the UFU in my earlier decision and these issues, for the reasons given in the earlier decision, should not be revisited.

[12] Further, Mr Wright says of the fair-minded observer that such a person would understand that the context within which the conduct occurred was a conciliation conference and that the Commission was not hearing evidence or argument on matters that will be subject to determination. That is, having regard to the nature and purpose of conciliation a fair-minded observer would “not too readily conclude that the expression of a view in the course of conciliation…indicated a real possibility of pre-judgement…[T]he fair-minded observer would only reasonably form an apprehension…of bias if the conduct in conciliation plainly suggested the possibility of a closed or biased mind.” Mr Wright submits that conduct complained of by the UFU does not rise to this level.

[13] With respect to the submissions that I should decline to arbitrate the matter based on the reasoning in Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction (CFMMEU v Watpac) 4 Mr Wright says the observations made therein were not expressed in language suggesting members are bound to act in accordance with them in the discharge of their functions. Further, he submits that the FW Act contemplates members both conciliating and arbitrating matters. A prescription that a member not arbitrate, having conciliated, was an aspect of previous legislation. That it is no longer an aspect of the relevant legislation reasonably allows a conclusion that the principles relating to bias (and apprehended bias) is a reasonable basis on which such matters should be dealt with.

Consideration

[14] The application of the objective test as set out in Ebner v Official Trustee in Bankruptcy 5 (Ebner) is a two-step process – first the identification of the relevant matters and, the connection of those matters to the case being decided. The High Court articulated that application of this principal 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. 6

[15] In Kirby v Centro Properties Ltd and Others (No 2) 7 Middleton J said of the principles stated in Ebner:

The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]

…

Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.

…

In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.

However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead [sic] a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.” 8

[16] In Laws v Australian Broadcasting Tribunal 9the High Court found that the fair-minded observer would have some knowledge of the “actual circumstances of the case” and would take account of these circumstances.10

[17] In Re: Construction, Forestry, Maritime, Mining and Energy Union 11 a Full Bench of the Commission said:

[20] …As was made clear in Ebner, all of the relevant circumstances need to be taken into account, and whether a statement or conduct on the part of a decision-maker creates an ineradicable apprehension of bias must be assessed by reference to the totality of the circumstances. As was stated in Johnson v Johnson 12 (albeit in relation to a difference factual scenario):

“No doubt some statement, or some behaviour, may produce an ineradicable apprehension of prejudgement. On other occasion, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case.” 13

[18] To the extent that the UFU relies on the witness statement of a colleague of Mr Wright I do not accept that colleague’s view of Mr Wright’s impression as to my attitude to the involvement of the UFU to be determinative of the application now before me that I should recuse myself from hearing the application. Mr Wright’s views can be accepted as being wholly subjective. The interpretation of those views by Mr Wright’s colleague removes them further from any objective consideration or conclusion of the fair-minded observer. In any event this goes to the matter canvassed and determined in the February Decision.

[19] The UFU suggests that the antipathy it says I exhibited in conciliation might suggest that I would not deal with arguments of the UFU on their merits, yet by far the evidence it relies on was in relation to my interactions with Mr Wright and the CFA, none of which suggest the possibility of a pre-determined view as to arguments not yet put by the UFU. The matters it raised in evidence in relation to interactions with the UFU during conciliation were dealt with by me in the first recusal application and the February Decision in which I determined the UFU could be heard in the arbitration of Mr Wright’s application. It is not my intention to re-visit that decision and, for the reasons given in it, I do not consider those matters provide grounds for a reasonable apprehension of bias.

[20] Of the specific matters raised of my interactions with the CFA and Mr Wright it is noteworthy that these matters are not raised by the CFA who is the respondent to the proceedings. In fact no complaint of the CFA is raised with respect to the conduct of the conciliation proceedings. To the extent matters are raised by the UFU and its views of my approach to the CFA are relevant:

•  It is appropriate for parties to ensure attendance at the Commission of appropriate officers or employees who can engage with the Commission on the matters before it. Conciliation is not a perfunctory step but an important and critical component of the dispute settling process. To not send officers who could provide more information to the Commission could, in circumstances, be considered disrespectful and a waste of time and resources. The CFA did not indicate that the time of the conciliation conference was inconvenient in that it could not bring the appropriate people who could respond to the matters in dispute as identified by Mr Wright. That I commented on the absence of operational staff was no more than a statement of fact. Comments said to have been made by me with respect to the selection process could have been rebutted or responses provided had CFA operational staff been present;

•  The information before me, not countered by the CFA, was that the apparent effect of the selection criteria in the first iteration of the Position Description would have stopped any officer who had entered the CFA through the lateral entry process (as had Mr Wright) from being considered for the position. The second iteration of the Position Description loosened the criteria but did require an applicant to demonstrate “equivalence” with no apparent guidance as to what that might entail. Questions or probing of this issue would not lead the fair-minded observer, cognisant of the purpose of the conciliation process, to objectively conclude any pre-judgement on my part;

•  The basis on which assertions may have been tested by me in conciliation cannot objectively be seen as prejudgement of the matters for determination but rather an exploration of the issues at hand;

•  That there was no detailed exploration of the consultation process leading up to the creation of the positions could not be seen by the fair-minded observer as an indication that an open mind would not be taken to the matter. Not all issues are explored in depth in conciliation and the fair-minded observer would be aware of that. In any event Mr Wright’s claim, at a general level, was to be interviewed for the position in question and this was the focus of the conciliation;

•  Questioning as to why a matter could not have been resolved in earlier stages of the dispute resolution process in any enterprise agreement is, despite the submissions of the UFU, exploratory of the issue and not dismissive of it. The comment opened the door for the CFA to explain any issues it had in accommodating Mr Wright or resolving the dispute with him. Any inherent difficulties identified by the CFA in the conciliation may have been helpful in the resolution of the dispute at that stage. The balance of questioning and probing in conciliation would not lead a fair-minded observer – with their inherent knowledge of the conciliation process and its role in dispute settling – to conclude that the matter would not be fairly heard, evidence assessed without prejudgement.

[21] The remaining matters raised in the statement of the UFU industrial officer relied on by the UFU go to statements made by the UFU in conciliation – again not matters the CFA suggest raise some apprehension of bias. It is difficult to see how a fair-minded observer might conclude that they would indicate I would not bring an open mind to the matters to be decided in the arbitration.

[22] The matter in dispute goes to whether Mr Wright should be interviewed for a particular position within the CFA. On the first iteration of the Position Description Mr Wright was not eligible to be interviewed as he did not possess the necessary service history with the CFA. In the second iteration he argues (on his application) that he was denied interview in part because it was not explained what was necessary to demonstrate “equivalence” to the service requirement. He was, therefore, disadvantaged by a lack of detail to assist in the application process.

[23] As mentioned above the CFA itself raise no issue with respect to my conduct in conciliation, rather my interactions with the CFA are put at issue by the UFU. Whilst the UFU submit that I have shown antipathy to it and the arguments I anticipate it would raise at hearing, the matters it relies upon to support this go to interactions I had with the CFA (beyond matters already dealt with in the February Decision). It is, overall, difficult to see how my interactions with the CFA could be indicative of antipathy to the UFU and therefore could form the basis of an application for recusal on the basis of an apprehended bias. The apparent disconnection between the concern (antipathy to UFU and its arguments exhibited through interactions with the CFA) and the matter to be decided (if Mr Wright should be interviewed for a position) would not, on this basis, appear to satisfy the two step process identified in Ebner.

[24] As to the alternative position put by the UFU and supported by the CFA that I should recuse myself because I have conciliated the matter there are a number of things to say.

[25] Firstly, the views expressed by the Full Bench in CFMMEU v Watpac were observations of the Full Bench 14 and were not findings I am bound to follow.

[26] Second, this case is unusual in that the organisation seeking that I recuse myself or step aside from the matter is not actually party to the dispute before the Commission although certainly a party with an interest.

[27] Third, that I expressed a view in conciliation is not indicative of a concluded view.

[28] Fourth, the CFA, being party to the dispute, puts forward no grounds on which I should recuse myself except for the observations of the Full Bench in CFMMEU v Watpac. In submissions made prior to the February Decision and submissions in relation to this matter the CFA raises nothing of substance.

[29] I am mindful of the observations made in CFMMEU v Watpac and am respectful ofthose observations. However, in this case I decline to step aside solely because I was involved in the conciliation.

Conclusion

[30] For the reasons given above I decline to recuse myself.

[31] Directions for hearing the merits of the application will be issued shortly.

COMMISSIONER

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<PR717286>

 1   [2020] FWC 705.

 2   See Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction[2019] FWCFB 3855 (CFMMEU v Watpac).

 3   Ibid.

 4   Ibid.

 5 (2000) 205 CLR 337.

 6   Ibid, 345.

 7 (2011) 202 FCR 439 as cited in CFFMEU v Watpac.

 8 Ibid at [29].

 9 (1990) 170 CLR 70.

 10   Ibid at pp.87-88 per Mason CJ and Brennan J.

 11   [2019] FWCFB 214.

 12 201 CLR 488.

 13   Ibid at [14] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

 14   [2019] FWCFB 3855 at [33].