Gavin Wright v Country Fire Authority

[2020] FWC 705

[2020] FWC 705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gavin Wright
v
Country Fire Authority
(C2019/5842)

COMMISSIONER BISSETT MELBOURNE, 14 FEBRUARY 2020

Application to be joined as a party to the dispute – application for recusal.

[1] On 23 September 2019 Mr Gavin Wright made an application for the Fair Work Commission (Commission) to deal with a dispute (the substantive dispute) pursuant to s.739 of the Fair Work Act 2009 (FW Act). That application was made in accordance with the dispute settling procedure in the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Agreement 2010(2010 Agreement).

[2] The application was subject to a conciliation conference before me on 13 December 2019. At that conference the United Firefighters’ Union of Australia (UFU) sought leave to intervene in the matter. I allowed the UFU to remain in the conference.

[3] The dispute between Mr Wright and the Country Fire Authority (CFA) did not settle at conference and Mr Wright indicated that he wished the matter to be arbitrated. Prior to directions being issued in relation to the UFU’s application to be heard in the arbitration of the substantive dispute the UFU made an application that I recuse myself from dealing with the substantive dispute on the grounds of apprehended bias and further, that I should recuse myself from dealing with the UFU application 1 to be joined. The UFU filed two affidavits in support of the recusal applications.

[4] Following the receipt of these applications I issued a statement in which I indicated that, prior to determining if I should recuse myself from dealing with the substantive application, I would need to determine if the UFU should be heard in relation to the substantive application such that its recusal application in relation to the substantive application could be heard.

[5] This was further clarified to indicate that the issue I needed to determine first was whether the UFU should be joined and that part of this consideration was if I should recuse myself from determining if the UFU should be heard. Only if I didn’t recuse myself and I granted the UFU permission to be heard could I properly consider if I should recuse myself from the substantive matter.

[6] This decision deals with whether I should recuse myself from deciding if the UFU should be joined on the substantive application. The parties indicated that they did not wish to be heard on their submissions and were content for the Commission to determine the matter on the basis of the written submissions of the parties.

APPREHENDED BIAS

UFU submissions and evidence

[7] The UFU has filed two confidential affidavits on which it relied to support its application that I should recuse myself from dealing with its application to be joined.

[8] In the first of these statements made by the UFU industrial officer present at the conciliation conference it is said that at the conference I indicated, after having allowed the UFU to remain in the conference that it was “highly unusual” and that I had “never seen such a thing” and that I said these things in an “exasperated way”. Further, it is said in the statement that when I asked if the UFU had any further comments to make on the application I said that I had furthered my view that there was no legitimate reason for the UFU to be involved in the matter as I did not see that the outcome would impact on UFU members.

[9] In the second statement (statement 2) it is said by a colleague of Mr Wright that Mr Wright said to that colleague that I had questioned the involvement of the UFU, asked why they were in attendance as they were not a party to the proceedings and that my questioning of the UFU indicated my dissatisfaction with its involvement.

[10] The UFU submits that the statements it says were made by me were made in definite language and were directed at facts and issues which require decision in the application to be joined. It submits, therefore, that a hypothetical observer might reasonably apprehend that I might not bring an impartial mind to the question of whether the UFU should be joined.

Mr Gavin Wright’s submissions

[11] Mr Wright submits that, despite the beliefs of the UFU industrial officer present at the conference, the Commission did allow the UFU to participate in the conference and the UFU was, in fact, invited to comment on matters raised in the conference and that the views expressed by the UFU were received by me.

[12] In any event Mr Wright submits that it was clear that the Commissioner did not express a concluded view on the matter of whether the UFU should be heard but left that question to be determined on further application.

CFA submissions

[13] The CFA advised that it does not object to the referral of the ‘joinder’ application of the UFU to be referred to another member but, if it is not, submits that the substantive matter should be referred to another member.

[14] The CFA do not make any submissions as to recusal on the grounds of an apprehension of bias but rather rely on the observation of the Full Bench in Construction, Forestry, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction 2 including 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… 3

Legal Principals

[15] The principals relevant to a consideration of apprehended bias are well established and are referenced by both the UFU and Mr Wright in their submission.

[16] In Ebner v Official Trustee in Bankruptcy 4 (Ebner) it was found:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

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. 5

[17] In relation to the objective nature of the test for apprehended bias the High Court observed in Johnson v Johnson 6 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’.

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. 7

[18] The application of this objective test is the two-step process identified in Ebner. The fair-minded observer is taken to have some knowledge of the actual circumstances of the case:

In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case. In other words, the observer would take account of the circumstances which led to the bringing of the defamation action and the filing of the defences. While it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of the members of the Tribunal to make an independent decision uninfluenced by previously expressed opinions and conflicting interests (see Vakauta v. Kelly), such an observer must be taken to appreciate that the defences filed by the Tribunal do not amount to assertions of belief or admissions. 8 

[19] I have taken into account these principles in considering the application of the UFU.

Consideration of recusal application

[20] The lead up to the conference and the conference itself in this particular matter were unusual.

[21] Mr Wright notified his dispute to the Commission on 23 September 2019. It was consequently listed by my chambers for conference on 1 October 2019 and then re-scheduled by my chambers due to unavailability of Mr Wright to 4 October 2019.

[22] On 3 October 2019 my chambers received an email from Mr Wright as follows:

…With apologies may I please request that we postpone the scheduled conciliation meeting that was due to be held at 9.30pm [sic] tomorrow morning?

CFA and I had intended to have Step 4 of the Grievance procedure completed today which would have allowed for the conciliation to go ahead tomorrow but the United Firefighters Union were unable to attend the Step 4 meeting today. [emphasis added]

Could I please request that the conciliation meeting be re-scheduled for a date on or after Wednesday the 16th of October…

[23] This correspondence from Mr Wright suggested that he was being represented by the UFU in his dispute with the CFA (it not being unusual for an employee to have their union represent them while the dispute is in the individual’s name).

[24] Following later advice from Mr Wright his application was re-listed for conference on 13 December 2019.

[25] Prior to entering the conference I was advised that Mr Wright was present as was Ms Moore of the UFU and Mr Koletsis from the CFA. Ms Gulle, a lawyer, was also present. Ms Gulle was subsequently granted permission to represent the CFA in the conference.

[26] It was only on commencing the conference and taking ‘appearances’ that Ms Moore informed the Commission that she was seeking leave to intervene. The UFU had not informed the Commission beforehand that it had an interest in the matter separate to that of Mr Wright, that it would not be representing Mr Wright but that it wished to attend and participate in the conference.

[27] I accept that I may have indicated that the circumstances were ‘highly unusual’ and that I had ‘never seen such a thing’ because, in my experience, that is the case.

[28] If an exasperated tone was used it was because there had been no forewarning by the UFU that it intended to seek to participate in the conference. My preparation for the conference was on the basis that it was an individual grievance between Mr Wright and the CFA. My mind was not turned to the question of dealing with the application of the UFU to intervene.

[29] The reason for the UFU being there was not articulated in any great detail by Ms Moore, creating difficulties in assessing the application and determining if the UFU had an interest (beyond its accepted but broad interest in the 2010 Agreement and the industry generally) and should be allowed to remain.

[30] I did however determine that the UFU should be granted permission to remain and participate in the conference. I advised them however that if the matter proceeded further to arbitration the UFU would need to make formal application with detailed reasons as to why they should be heard. In particular, the UFU would be required to outline its interest in the matter before the Commission and how any decision would impact on its members.

[31] The further comments I am said to have made to which the UFU takes exception were that I did not see the need for them to be present and that I did not see the outcome impacting on its members’ interests. These comments were made after I had heard from Mr Wright but, in any event, did no more than provide further guidance on those matters the UFU would be required to address should the dispute proceed to arbitration. In any event the views expressed were not put as a concluded view as to whether permission would or would not be granted in any arbitration of the application.

[32] As to an apology to Ms Moore that I had not intended to sound flippant or inappropriate this as in relation to the terseness now referenced by the UFU and was a further acknowledgement that any application by the UFU to be heard would be treated with the seriousness with which such an application should be considered.

[33] Whilst the words said by me in isolation may well lead a person to conclude that I would not approach the task of determining whether the UFU should be heard with an open mind, the hypothetical objective observer does not just see the written words but hears the words spoken in the context within which they are said and is aware the jurisdiction within which the Commission operates. That observer would also be aware that the UFU were advised that they could remain and participate in the conference (and that they did so), but that the decision as to whether the UFU should be heard in any arbitration would be subject to an application and fulsome submissions that addressed matters pertinent to deciding intervention not be based on a bare claim as if an absolute right to be heard existed.

[34] That words may have been said in a tone not appreciated by a party or that an interim or preliminary view might be expressed is not grounds on which to conclude the presence of apprehended bias.

[35] The decision was taken to allow the UFU to remain at and participate in that conference and it was clearly put to the UFU that they would be given an opportunity to put fulsome submissions as to why they should be heard in any arbitration of the application in relation to an individual’s grievance and hence no concluded view as to its participation had been expressed. In these circumstances I am not satisfied that the objective observer of proceedings would consider that I was unable to bring an independent and unbiased mind to the determination of whether the UFU should be heard in the arbitration of the application of Mr Wright.

[36] For these reasons I decline to recuse myself on the grounds of an apprehension of bias.

JOINDER APPLICATION

[37] Having reached the decision above I will now consider the application of the UFU.

UFU Submissions

[38] The UFU seeks to be joined to the current application in Wright v CFA such that it be permitted to participate in the arbitration of the application of Mr Wright “on the same basis as other parties.”

[39] The UFU says the Commission has the power to grant such an application pursuant to s.589(1) and s.590 of the FW Act.

[40] The witness statement of the UFU industrial officer states that:

•  The UFU was not a party to the dispute brought by Mr Wright to the Commission but was “involved in this dispute which involves 10/14 Commander Role Statement”;

•  The reason for the UFU’s involvement pertains to the Role Statement agreed to between the UFU and CFA;

•  The UFU’s other interests in the dispute include (but are not limited to):

○ That the new additional Commander positions are not filled impacts on rostering and workload of other UFU members;

○ Other UFU members will be impacted by the dispute;

○ The UFU was not consulted on and does not agree to lateral entry to the positions, an inconsistency arising from having a “small number of employees who do not hold the prerequisite training and experience” has never been addressed by the CFA;

○ The 2010 Agreement contains Position Descriptions and part of the dispute challenges the “right” of the parties to the Agreement to introduce different Role Statements containing different eligibility criteria;

○ The outcome of the dispute will have potential impacts on the capacity to implement and maximise interoperability between the CFA and the Metropolitan Fire Brigade (MFB);

•  The UFU has been invited to be involved in similar previous disputes including a conference in relation to a dispute associated with that currently before the Commission.

[41] The UFU submits therefore that:

•  The effect of clauses 15.2.5 and 15.2.6 of the 2010 Agreement makes it a party to the dispute from Step 4 and that it participated in Step 4 of the dispute by invitation of and, no objection from, the CFA or Mr Wright;

•  The dispute involves the 10/14 Commander Role Statements and the UFU has been involved in all previous disputes in relation to these;

•  It has a special interest in disputes pertaining to the Role Statement because it concerns the standing of an agreement reached between the UFU and CFA under the consultative process set out in clause 13 of the 2010 Agreement;

•  Part of Mr Wright’s dispute challenges the ability of the UFU and CFA to agree to introduce Role Statements which contain different eligibility criteria. If Mr Wright is successful in his claim, the UFU is concerned that this might undermine the introduction of future positions (or current positions) that contain different eligibility criteria;

•  New additional Commander positions are not being filled because of the dispute;

•  Other UFU members are being impacted by the dispute;

•  The outcome of the dispute has the potential to impact eligibility criteria for rank progress and promotion thereby effecting other UFU members, the CFA, MFB and Fire Rescue Victoria;

•  The outcome of the dispute has the potential to impact interoperability between the CFA and MFB and the UFU has an interest in a large portion of the workforce.

[42] The UFU submits that it has sufficient interest to warrant the grant of its application for joinder and hence ensure it is not denied procedural fairness.

CFA Submissions

[43] The CFA does not oppose joinder of the UFU to the dispute currently before the Commission.

[44] The CFA agrees with the submissions of the UFU:

•  That clause 15.2.5 and 15.2.6 of the 2010 Agreement contemplate the involvement of the UFU in disputes;

•  The UFU has been a key participant in the development of role statements for the 10/14 Commander positions in accordance with the consultative procedures of the 2010 Agreement;

•  The UFU has been involved in all previous disputes in relation to 10/14 Commander positions (none of which proceeded to arbitration).

[45] The CFA further agrees that the outcome of the arbitration will have an impact on the UFU and other CFA employees beyond the 10/14 Commander positions.

Mr Wright’s submissions

[46] On the issue of ‘joinder’, Mr Wright submits that:

•  The dispute is between Mr Wright and the CFA having been referred to the Commission by Mr Wright;

•  The UFU is not a party to the dispute and the Commission cannot deem the UFU to be a party to the dispute;

•  The Commission does have a discretionary power to permit a party who is not party to a dispute to intervene and be heard. In this respect Mr Wright says that the decision in Construction, Forestry, Mining and Energy Union v Woodside Burrup 9 is authority for the proposition that the Commission has power to allow a party to intervene but does not support joinder as sought by the UFU;

•  It is accepted that the UFU may have a sufficient interest in the matter, and that interest may be sufficient to grant a right to intervene with limited scope.

[47] On the particular submissions of the UFU, Mr Wright says:

•  There is no support for the position put that the UFU is party to the dispute by operation of clause 15.2.5 and 15.2.6 of the 2010 Agreement;

•  That the UFU has been involved in other disputes with respect to the Commander Role Statements, that the outcome of the dispute may impact the eligibility criteria for rank progress and thereby effect other members of the UFU and that the outcome may impact on interoperability are not grounds on which permission to intervene should be considered. Mr Wright says that these arguments proceed on a misconception of the role of the Commission in dispute settling;

•  The determination of the dispute between Mr Wright and the CFA should not be subject to the considerations of a private agreement between the UFU and CFA.

Consideration on ‘joinder’

[48] The application of the UFU is that it be “joined” to proceedings between Mr Wright and the CFA. It is unclear what the CFA mean by being joined or what status it considers being joined gives it.

[49] To the extent that the UFU submits, and it is supported by the CFA, that the operation of clauses 15.2.5 and 15.2.6 give it the right to be party to the dispute and to have the full rights of any other party to the dispute I do not agree.

[50] Clause 15 of the 2010 Agreement is the dispute resolution procedure.

[51] That procedure provides a 5-step process:

15.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.

15.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.

15.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.

15.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.

15.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.

15.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.

[52] Clause 15.2.5 does no more than invite the union to a meeting with an aggrieved employee. It does not provide any right to the UFU as a party to the dispute between the individual and the CFA.

[53] To the extent that this is how the UFU suggests it should be joined to the dispute currently before me I reject that proposition.

Consideration of intervention

[54] The Commission has a wide discretion as to how it might inform itself.

[55] Section 590(2) of the FW Act states:

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

[56] Nothing in s.590(2) confines the Commission’s powers to the direct parties to the extant dispute. The discretion therefore operates to enable the Commission to invite submissions, subject to any conditions determined by the Commission, on a matter before the Commission.

[57] This power operates in conjunction with that in s.589(1) which gives the Commission power to determine how, when and where a matter is to be dealt with.

[58] The dispute currently before the Commission as I apprehend it and based on the notification of dispute by Mr Wright 10 relates to the “Mandatory Eligibility Requirements” contained in the role statement for the 10/14 Commander positions. In particular Mr Wright says that:

•  The mandatory eligibility criterion is a variation to the existing workplace agreement;

•  The mandatory eligibility criterion is a breach of clause 31.1 of the agreement in that it is discriminatory;

•  The mandatory eligibility criterion ignores the provisions in two of the Schedules attached to the 2010 Agreement namely Schedule 11…and Schedule 12;

•  The [selection] panel has breached the CFA’s Recruitment/Appointment and Selection Policy in its lack of transparency around the equivalence criteria, the reasons given for finding [Mr Wright] ineligible to be interviewed and for continuing to debate and possibly change the meaning of criteria wording at the Enterprise Bargaining Implementation Committee while [his] application was being assessed.

[59] To the extent that the UFU engaged with the CFA through the consultative process to develop the role statements for the newly created 10/14 Commander positions, I am satisfied that it has a legitimate interest in the dispute before the Commission.

[60] To the extent that the UFU wish to make submissions to the Commission as they relate to the matters in dispute, they are granted permission to intervene.

[61] In granting permission this is not to suggest that the permission is at large and the UFU has the right to broaden the dispute beyond that which Mr Wright seeks to prosecute. It is, in this respect, not apparent that Mr Wright’s dispute extends to interoperability issues or the capacity for any particular person to apply for the 10/14 Commander positions. I do not, however, intend to make any definitive decision on such matters but the UFU should appreciate that leave is given to it to intervene in, and not define the extent of, the dispute.

[62] Permission is therefore granted to the UFU to intervene in the dispute before the Commission.

FURTHER PROCEEDINGS

[63] Having determined that the UFU can be heard in relation to the dispute between Mr Wright and the CFA, the UFU now has an application that I should recuse myself from dealing with the dispute proper.

[64] Directions in relation to this application will be issued separately.

COMMISSIONER

Final written submissions:

United Firefighter’s Union of Australia, 29 January 2020.

Applicant, 3 February 2020.

Respondent, 3 February 2020.

Applicant, 4 February 2020.

United Firefighter’s Union, 6 February 2020.

Printed by authority of the Commonwealth Government Printer

<PR716576>

 1   The UFU refer to its application as a ‘joinder’ application in that it wished to be ‘joined’ as a party to proceedings. I have adopted its language when referring to the application.

 2   [2019] FWCFB 3855.

 3 Ibid at [47].

 4 [2000] HCA 63; (2000) 205 CLR 337.

 5   Ibid at [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

 6 [2000] HCA 48; (2000) 201 CLR 488.

 7   Ibid at [12] – [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

 8   Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at pp. 87 – 88, per Mason CJ and Brennan J; see also p.95, per Deane J, p.98, Gaudron and McHugh JJ.

 9   [2010] FWAFB 6021.

 10   Subject, of course, to the appropriate characterisation of the dispute when it is dealt with.