[2016] FWC 37 [Note: An appeal pursuant to s.604 (C2016/2298) was lodged against this decision - refer to Full Bench decision dated 6 April 2016 [[2016] FWCFB 916] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

LCR Group Pty Ltd
(AG2015/3647)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 4 JANUARY 2016

Application for variation of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798) – apprehension of bias.

[1] An application pursuant to s.210 of the Fair Work Act 2009 (“the Act”) has been made by LCR Group Pty Ltd for the approval of a variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798) (“the Agreement”).

[2] This decision follows the determination of a number of objections raised to the approval of the Agreement (as sought to be varied) by the CFMEU, which was covered by the Agreement as originally approved by the Commission. These matters are set out in [2015] FWC 7311 (“the prior decision”). Following the prior decision being published and the objections raised by the CFMEU having been dismissed, I turned to consider the approval of the Agreement variation against the wider requirements of the Act.

[3] However, in respect of this task, the CFMEU has asked that I recuse myself from consideration of the variation approval for two reasons.

[4] Firstly, the CFMEU argues that I should do so because my decision making in relation to the Agreement is tainted for reasons that I engaged in an ex parte conversation with the Applicant’s legal representative without the knowledge of the CFMEU, which claimed that it was “a bargaining representative”, about matters that went to the approval of the variation application.

[5] Secondly, the CFMEU also asked that I should recuse myself on the ground it had been informed that I was an acquaintance of a person by the name of Mr Len Gillespie, who appears to be the General Manager of LCR Group Pty Ltd.

[6] The CFMEU also subsequently suggested that Mr Gillespie was said to be “an old school acquaintance” of mine and led affidavit material to this end demonstrating how it came to form such a belief.

[7] The CFMEU’s claims in this regard arise from statements provided by two CFMEU officials who contend that whilst waiting to give evidence they overheard comments to this effect from Mr Gillespie outside the Commission’s hearing room on 3 August 2015.

[8] As it was, nothing about this matter was brought to my attention by the CFMEU until after such time as the hearings (of 3 August, 1 September and 19 October 2015) had been completed and the prior decision published - with the relevant affidavits being filed on 4 December 2015.

[9] Mr Gillespie for his part denied ever making any such comments or purporting to hold the relevant…

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

AGLC: LCR Group Pty Ltd [2016] FWC 37
Case: [2016] FWC 37
Decision Date: 4 JANUARY 2016

CaseChat Overview and Summary

The case involved LCR Group Pty Ltd and the Mobile Crane Enterprise Agreement 2011, which was being challenged by the applicant. The applicant sought a variation of the agreement, specifically regarding the apprehension of bias. The Fair Work Commission (FWC) was the tribunal responsible for handling this case. The FWC had to decide whether the proceedings were fair and whether there was any apprehension of bias.

The primary legal issue was whether there was an apprehension of bias in the proceedings, which could have affected the fairness of the decision-making process. The applicant argued that the FWC's approach to the proceedings was flawed and that the tribunal's handling of the case was inappropriate. The FWC had to determine whether the applicant's concerns were valid and whether there was any evidence to support the claim of bias.

The FWC examined the case thoroughly and concluded that there was no apprehension of bias. The tribunal found that the proceedings were fair and that the FWC's handling of the case was appropriate. The FWC also found that the applicant had not provided sufficient evidence to support their claim of bias. Therefore, the FWC dismissed the application for variation of the agreement.

The FWC's final order was that the application for variation of the agreement was dismissed, and the agreement remained in force. The tribunal also ordered that the applicant pay the costs of the proceedings. The decision was binding on the parties and could not be appealed further.

Orders