The AWU-FIME Amalgamated Union v The Honourable Deputy President Acton (a member of the Australian Industrial Relations Commission), Construction, Forestry, Mining & Energy Union and Media Entertainment & Arts..
[1994] IRCA 36
•14 Sep 1994
C A T C H W O R D S
INDUSTRIAL LAW - Practice and procedure - Proceedings of Industrial Relations Commission - Claim of apprehended bias - Involvement of Deputy President hearing demarcation dispute in early stages of that dispute whilst an ACTU officer - Co-chair of one or two meetings when two of the present three contenders for coverage stated their positions and were sent away to negotiate - Later decision by other ACTU officers supporting coverage by one contender - Content of the unions' statements not revealed - Statement by Deputy President that she had given a full disclosure of what she recalled about her involvement - Argument by applicants that the non-disclosure of the unions' statements gave rise to a reasonable apprehension of bias - Relevance to Commission's decision of steps taken by ACTU officers in reaching decision to support a particular contender.
Industrial Relations Act 1988, ss.10, 113, 118A, and 412.
THE AWU-FIME AMALGAMATED UNION v. THE HONOURABLE DEPUTY PRESIDENT ACTON (a member of the Australian Industrial Relations Commission), CONSTRUCTION, FORESTRY, MINING & ENERGY UNION and MEDIA ENTERTAINMENT & ARTS ALLIANCE
No. NI 293 of 1994
AND
ENTERTAINMENT INDUSTRY EMPLOYERS' ASSOCIATION & ORS v. THE HONOURABLE DEPUTY PRESIDENT ACTON (a member of the Australian Industrial Relations Commission), CONSTRUCTION, FORESTRY, MINING & ENERGY UNION and MEDIA ENTERTAINMENT & ARTS ALLIANCE
No. NI 294 of 1994
CORAM: WILCOX CJ, KEELY & BEAZLEY JJ
PLACE: SYDNEY
DATE: 14 SEPTEMBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) NI 293 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:THE AWU-FIME AMALGAMATED UNION
Applicant
AND:THE HONOURABLE DEPUTY PRESIDENT ACTON
A member of the Australian Industrial Relations Commission
First Respondent
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Respondent
MEDIA ENTERTAINMENT & ARTS ALLIANCE
Third Respondent
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) NI 294 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:ENTERTAINMENT INDUSTRY EMPLOYERS' ASSOCIATION & ORS
Applicants
AND:THE HONOURABLE DEPUTY PRESIDENT ACTON
A member of the Australian Industrial Relations Commission
First Respondent
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Respondent
MEDIA ENTERTAINMENT & ARTS ALLIANCE
Third Respondent
CORAM: WILCOX CJ, KEELY & BEAZLEY JJ
PLACE: SYDNEY
DATE : 14 SEPTEMBER 1994
REASONS FOR JUDGMENT
THE COURT: Two parties to proceedings in the Australian Industrial Relations Commission ("the Commission") filed applications in the High Court of Australia for writs of prohibition and certiorari addressed to Jennifer Mary Acton, a Deputy President of the Commission. Their claim, in brief, is that Deputy President Acton ought not to continue to hear the proceedings because of apprehended bias. They do not allege actual bias. Pursuant to an order made by the Chief Justice of the High Court under s. 44 of the Judiciary Act 1903, both applications were remitted to this Court for determination (see s. 412(2) of the Industrial Relations Act 1988) and heard together.
The proceedings in the Commission arise out of a long-running dispute as to the appropriate trade union to have coverage of persons employed in the trade and public promotions industry and engaged in, or in connection with, the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated equipment. Initially, there were two contenders for coverage, the Australian Theatrical and Amusement Employees' Association ("ATAEA") and the Building Workers' Industrial Union ("BWIU"), each being federally registered organisations. During the course of the dispute each of these organisations amalgamated with other organisations to form a new federally registered organisation. BWIU is now part of the Construction, Forestry, Mining and Energy Union ("CFMEU"), the second respondent in each of these proceedings. ATAEA is now part of the Media Entertainment and Arts Alliance ("MEAA"), the third respondent in each case. Although antagonists before the Commission, MEAA and CFMEU joined together to resist the present applications, being represented in this Court by the same counsel and solicitors. In accordance with usual practice, Deputy President Acton, the first respondent in each case, took no part in the hearing. For convenience we will use the term "the respondents" to refer only to CFMEU and MEAA.
The applicant in matter NI 293 of 1994 is AWU-FIME Amalgamated Union ("AWU-FIME"), a registered organisation created by an amalgamation between the Australian Workers Union and the Federation of Industrial, Manufacturing and Engineering Employees. In matter NI 294 of 1994 the applicants are an employer organisation, the Entertainment Industry Employers' Association ("EIEA"), and ten members of that organisation engaged in the trade and public promotions industry. We will refer to these companies as "the ten companies".
The facts
It appears that in 1990 or early 1991 ATAEA reached an agreement with the ten companies that it should have exclusive coverage of their employees. Early in 1991 ATAEA made an application to the Commission under s. 118A of the Industrial Relations Act for the making of a consent award to that effect. Section 118A was inserted in the Act by the Industrial Relations Legislation Amendment Act 1990 and came into operation on 1 February 1991. As it then read, the section relevantly provided:
"118A(1)Subject to this section and subsection 202(3), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders:
(a)an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;
(b)an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right;
(c)an order that an organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.
(2)In considering whether to make an order under subsection (1), the Commission:
(a)must consider whether it should consult with appropriate peak councils that are representative of organisations representing employees or organisations representing employers; and
(b)may consult with appropriate peak councils and, where it does so, must inform the parties to the proceedings under this section relating to the order of any views expressed by those peak councils; and
(c)must have regard to any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees.
(3)An order under subsection (1) may be subject to conditions or limitations.
(4)The powers of the Commission under this section are exercisable only by a Full Bench or Presidential Member.
(5)...
(6) ...
(7) ..."
BWIU apparently became aware of ATAEA's application and lodged its own application under s. 118A seeking coverage of the same employees. Before either application was heard, the two unions agreed to seek the assistance of the Australian Council of Trade Unions ("ACTU") in resolving their differences. Deputy President Acton was, at that time, employed by the ACTU as a senior industrial officer. One of the industries with which she was concerned was what was called "the entertainment industry". Because of this connection, she became involved in the ACTU's response to the request for assistance. In a statement made in the Commission on 20 September 1993, Deputy President Acton described her involvement in this way:
"As part of my work in that industry, I can recall, I think it was about three-quarters of the way through 1991, co-chairing with the ACTU industrial officer responsible for the building industry one or two meetings of unions concerning union coverage in the exhibition industry. My recollection of that meeting, or those meetings, is that each union attending outlined its position on such coverage in the industry, and both myself and the other ACTU industrial officer co-chairing the meeting or meetings sent the unions away to have discussions to see if they could sort the matter out amongst themselves and report back at a later date. I also recall Mr Innes from the Entertainment Industry Employers Association telephoning me at the ACTU at about that time to advise me which union the employers he represented believed should have the coverage in the industry. My recollection is that he indicated those he represented believed it should be the then Australian Theatrical and Amusement Employees Association. In November 1991 I drafted a letter, which was signed by the secretary of the ACTU and sent to Commissioner Fogarty of this commission, advising him that the ACTU had been convening meetings between unions to try to overcome a demarcation dispute in the exhibition industry and supporting the union's call for the commission, when the dispute came before it, to issue directions requiring the employers in the industry to provide their time and wages records to the unions for inspection in an attempt to resolve a critical point of contention between the unions in a demarcation dispute. Shortly after this period, I went off on maternity leave."
The evidence does not disclose the detail but it seems that, after Ms Acton went on maternity leave, other ACTU officers took over the case. On 2 April 1992 a meeting of ACTU officers (not including Ms Acton) recommended that MEAA should have coverage of the ten companies and that further discussions should occur between the unions involved in the exhibition industry regarding union coverage in the industry generally.
Prior to this decision the applications made to the Commission had come before Deputy President Polites. Pursuant to s.118A(2) of the Act, the Deputy President had requested the ACTU to indicate its view in relation to appropriate coverage. He had also carried out inspections in three States. The ACTU officers' decision of 2 April was communicated to Deputy President Polites on 7 April. After hearing the parties, and having regard to the decision of the ACTU, he indicated that he would make an order under s.118A in favour of MEAA, as it was about to become. Draft orders were prepared. On 21 May 1992 Deputy President Polites made an order in favour of MEAA. The order was to come into force from the first pay period on or after 7 April 1992 and remain in force for five years. It included sub-orders pursuant to each of the three paragraphs in s. 118A(1). Under para. (a), the Commission ordered that MEAA "is to have the right to represent under the Act the industrial interests of all persons employed or to be employed" by the ten companies engaged in the relevant work "to the exclusion of all other organisations". The second sub-order, under para. (b), was couched in similar terms but without any reference to the exclusion of other organisations. The third sub-order provided that three named organisations, CFMEU, the Operative Painters and Decorators Union ("OPDU") and the Federation Furnishing Trades Society ("FFTS") "do not have the right to represent under the Act the industrial interests of any persons employment (sic) or to be employed by" the ten companies.
The ACTU officers' decision of 2 April 1992 was considered by the Executive of the ACTU at its August meeting. The Executive adopted a resolution that confirmed the officers' decision in relation to the employees of the ten companies but determined that CFMEU, OPDU and FFTS should have the right to cover all other workers in the industry.
In about December 1992 CFMEU made an application under s. 118A for an order giving it coverage of all workers in the industry, including those employed by the ten companies. In order to clear the way for this, the union made an application under s. 113 of the Industrial Relations Act for an order setting aside the order of Deputy President Polites of 21 May 1992. Section 113(1) provides that the Commission "may set aside an award or any of the terms of an award". The word "award" is defined by s. 4 of the Act so as to include an order that has been reduced to writing under s. 143(1) of the Act. The order of 21 May had been reduced to writing.
So far as the evidence reveals, AWU-FIME did not seek coverage of exhibition workers until about this time. In January 1993 the organisation filed applications under s. 113 and s. 118A. At that time, presumably because of the ACTU Executive decision, MEAA was not pressing for coverage of workers in the industry other than those employed by the ten companies. In that situation, EIEA decided to support the application of AWU-FIME, not that of CFMEU. EIEA filed its own application under s. 118A, but limited to workers other than those employed by the ten companies.
All these applications came before Deputy President Acton on 31 May 1993. Directions were given. Witness statements were filed and she conducted four days of inspections. There was a question about the issue of subpoenas. So the matters were listed for mention on 20 September. At the commencement of that day's hearing, the Deputy President made the statement quoted above. She introduced the statement by apologising for not having raised the matter earlier, explaining that
"it was not until I reflected on the issues raised at the last hearing of these applications that it occurred to me that some of the parties may not be aware of the matter and/or may wish to raise objection to me continuing to deal with the applications in light of the matter."
At the conclusion of her statement, Deputy President Acton said: "I believe what I have just outlined to be the totality of my involvement in the matter of union coverage in the exhibition industry whilst I was employed by the ACTU."
At the request of the solicitor for EIEA, the Deputy President gave the parties time to consider her statement. On resumption the representatives of EIEA and AWU-FIME each suggested that it would be appropriate for her to stand down from the case. The representatives of MEAA (which by this time was seeking a s. 118A order in its favour in respect of workers not covered by Deputy President Polites' order) and CFMEU opposed this course. Deputy President Acton directed the parties to file written submissions. They did so. On 5 January 1994 Deputy President Acton handed down a written decision in which she held that there was no proper basis for her to disqualify herself from hearing and determining the applications.
The EIEA did not accept this ruling. When the matter was next in the list, on 14 February 1994, Mr A Goldberg QC appeared with Mr L Kaufman of counsel on behalf of EIEA to make a fresh application for disqualification. This application was not based on any additional material but on the Deputy President's alleged failure to deal in her reasons for decision with one aspect of the submissions previously put to her, namely that she had not revealed the content of the statements made by the two unions at the meeting or meetings she co-chaired.
Notwithstanding that the fresh application involved a canvassing of the ruling already made, Deputy President Acton permitted Mr Goldberg to develop his submissions at length. The oral argument was followed by further written submissions by all parties and a further decision handed down on 24 March 1994. During the course of this decision, Deputy President Acton twice stated that she had already "given a full disclosure" of what she recalled about her involvement in "the issue of organisation coverage of the employees in the exhibition industry" whilst she was employed by the ACTU.
The applicants' contentions
In their submissions to Deputy President Acton, the representatives of the applicants relied upon a number of aspects of her involvement in the matter whilst employed by the ACTU: the fact that she co-chaired one or more meetings at which BWIU and ATAEA stated their positions on coverage, the content of the stated positions, the fact that she received information from Mr Innes of EIEA regarding his organisation's position and the fact that she drafted a letter to the Commission seeking information. However, in the argument before us none of the applicants relied on the last two matters. Counsel for EIEA and the ten companies relied on only one point: that his clients were not aware of the content of the information conveyed by BWIU and ATAEA at the meeting or meetings co-chaired by Ms Acton, as she then was. Counsel for AWU-FIME relied on this circumstance and also an additional matter: that his client wished to attack the process by which the ACTU officers reached their recommendation, and the ACTU Executive made its decision, and Ms Acton had been part of that process. It is necessary to consider each of these bases separately.
The relevant legal principles
The principles concerning apprehended bias have been enunciated in several recent decisions of the High Court. It is convenient to start with a reference to The Queen v. Watson; Ex parte Armstrong (1976) 136 CLR 248. In that case Barwick CJ, Gibbs, Stephen and Mason JJ examined earlier authorities, English and Australian, in which the test had been variously stated. At 262 they propounded the rule "that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial". On the way to that proposition, their Honours referred to an earlier High Court decision, The Queen v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546. Seven Justices sat in that case. In a joint judgment they said at 553-554:
"Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it."
In Livesey v New South Wales Bar Association (1983) 151 CLR 288 the High Court returned to the topic. In a joint judgment the Court reaffirmed the Watson test. However, in doing so, at 293-294, the Court restated the principle in language that specifies the matter in relation to which the judge must be impartial and unprejudiced:
"a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."
The High Court has not departed from Livesey in subsequent cases. But there have been occasions on which the Court has discussed the operation of the Livesey principle in relation to particular issues. Two of those discussions are relevant to this case. The first of them relates to the situation that arises where a person required to act judicially is appointed because of particular qualifications or experience, which qualifications or experience are likely to result in the person being apprised of aspects of the matter in controversy. The Court dealt with this matter in Re Polites; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78, another case concerning the position of a member of the Industrial Relations Commission. The Court, constituted by Brennan, Gaudron and McHugh JJ, delivered a joint judgment in which they quoted the Livesey principle and stated the necessity "to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352". At 86 their Honours quoted that caution, which included the following:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."
Their Honours then quoted a portion of the judgment of Dixon CJ, Williams, Webb and Fullager JJ in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd (1953) 88 CLR 100 at 116 that includes these words:
"... it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons."
Against that background, Brennan, Gaudron and McHugh JJ considered the position of a Deputy President of the Commission. They said that the Livesey test:
"cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting".
At 86-87 their Honours noted the qualifications for appointment as a Deputy President prescribed by s.10(2) of the Industrial Relations Act, which included that, in the opinion of the Governor-General, "the person is, because of skills and experience in the field of industrial relations, a suitable person" for appointment. They went on:
"The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of 'skills and experience' amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers."
The other specific issue relates to disclosure of information by the adjudicator. This question was discussed in later Hoyts litigation: Re Media, Entertainment and Arts Alliance and Theatre Managers' Association ; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179. The complaint in that case was that a member of the Industrial Relations Commission, Commissioner Fogarty, had failed to disclose to Hoyts Corporation that he had certified a consent award in settlement of a dispute between ATAEA and other cinema operators. The company submitted that this gave rise to a reasonable apprehension of bias. There was no suggestion of actual bias. The Full Court of the High Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) refused an application for leave to appeal against an order of Toohey J refusing an application for writs of prohibition and certiorari. In their reasons for judgment, after referring to Livesey and other cases, the Court said at 182:
"One aspect of the rule, and the only one that is relevant for immediate purposes, is that the decision should be made on the basis of the evidence and the argument in the case, and not on the basis of information or knowledge which is independently acquired. That aspect of the rule is similar to but not identical with the rule of procedural fairness which requires that a person be given an opportunity to meet the case against him or her. However, in the case of the rule against bias, the question is not whether there is or was an opportunity to present or answer a case, but whether, in the circumstances, the parties or the public might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision.
As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent knowledge of factual matters that bear or may bear on the decision to be made. In some cases, it may be that he or she should stand down from the proceedings. However, precisely what should be disclosed and what, if any, other action should be taken may involve a consideration of the nature of the tribunal, its composition and organisation."
The information conveyed at the meeting(s)
As indicated, both applicants complain of the fact that Deputy President Acton has not disclosed to them the content of the statements made on behalf of BWIU and ATAEA at the meeting or meetings she co-chaired in 1991. They say that, if Deputy President Acton acquired relevant information at that time, she is bound, at least, to disclose it to the present parties and, depending on its nature, perhaps also to stand down from the case. Counsel for the applicants argue that, in the absence of such a disclosure as might reasonably satisfy their clients that there is no difficulty about Deputy President continuing in the case, she ought to stand down. In such a situation, they say, the applicants might reasonably suspect that she may not bring an impartial and unprejudiced mind to the case.
We have no doubt that it is encumbent on Deputy President Acton to disclose to the parties to the proceedings before her whatever she recollects about the statements made on behalf of ATAEA and BWIU at the meeting or meetings she co-chaired in 1991. It is not clear to us that those statements are relevant to the matters she has to decide; much has happened in the three years that have since elapsed. But they may be relevant. That is sufficient. In Media Alliance the High Court spoke of "factual matters that ... may bear on the decision to be made".
The problem for the applicants' case, however, is that it seems that the Deputy President has disclosed all that she now remembers about the meetings. In her initial statement on 20 September 1993, she mentioned co-chairing "one or two meetings of unions concerning union coverage in the exhibition industry". She said that her recollection:
"is that each union attending outlined its position on such coverage in the industry, and both myself and the other ACTU industrial officer co-chairing the meeting or meetings sent the unions away to have discussions to see if they could sort the matter out amongst themselves and report back at a later date".
Deputy President Acton described the matters mentioned in her initial statement as "the totality of my involvement in the matter of union coverage in the exhibition industry, whilst I was employed by the ACTU". That description is not inconsistent with the possibility that the Deputy President recalled more detail about disclosed incidents than she had stated. But that possibility cannot survive her twice-repeated assurance, in her reasons for decision of 24 March, that she had "already given a full disclosure of what I recall about and from my involvement with respect to the issue" whilst with the ACTU. This statement would be false if Deputy President Acton remembered the content of what the unions had stated at the meeting or meetings; and nobody has suggested that she has been untruthful. Nor is there any reason to suspect a want of frankness. The initial statement was made about two years after the meeting or meetings. The subject of the discussion was not one of momentous importance to Ms Acton. The meeting or meetings involved discussions about a relatively minor - from the ACTU's point of view - demarcation dispute. It seems that Ms Acton's role was merely to bring the disputants together and encourage them to negotiate the issue. Whilst she was with the ACTU she may have played that role on many occasions. There seems to be no reason why the detail of these discussions should stay in her memory.
If it is correct, as we believe, to approach this first point on the basis that Deputy President Acton has no present recollection of the content of the union statements at the meeting or meetings, it is clear that she is not in breach of the requirement that she disclose her independent knowledge of factual issues that may bear on the case. She has already disclosed the whole of her present knowledge.
But this is not the end of the matter, says counsel for EIEA; there is a possibility that the Deputy President will be influenced by something in one or other of the statements which she does not remember but retains in her subconscious mind.
This argument has the charm of ingenuity, but nothing else to commend it. No doubt it is correct to say that, on an emotional level, the subconscious mind can exert a considerable influence on human behaviour. But we are not here concerned with emotional manipulation. We are concerned with the pedestrian question of what position was stated by particular union delegates in connection with the matter of coverage of a particular group of workers and any stated reasons for those positions. We cannot accept that Deputy President Acton would be subconsciously influenced on a matter such as that. If she does not remember what was said, any reasonable observer would conclude that she will not be influenced by it.
In reaching the opinion that there is nothing in this first ground, we are, of course, addressing the present facts. It is conceivable, although perhaps unlikely, that during the further progress of the case something will occur that causes the Deputy President to remember something about the unions' statements. If that should happen, it will be her duty to disclose what she has remembered. If any party considers that this recollection gives rise to a reasonable apprehension of bias, it can make a fresh application for disqualification to the Deputy President.
The ACTU process
The second basis of disqualification, urged only by AWU-FIME, is that one of the issues that arise before Deputy President Acton is the fairness and reasonableness of the process by which the ACTU officers decided to recommend that MEAA have coverage of the relevant employees. Counsel says that the officers' decision had a major influence on Deputy President Polites' order of 21 May 1992. He argues that it will be necessary for Deputy President Acton to consider whether or not she should set aside Deputy President Polites' order; in considering that matter, the position of the ACTU is a material matter. Section 118A(2) provides for consultation between the Commission and appropriate peak councils. The ACTU is the peak council of organisations representing employees. The Commission is entitled to have regard to the ACTU's view and, under para. (c), it must have regard to any agreement or understanding of which it becomes aware that deals with the right of an organisation of employees to represent the industrial interests of a particular class or group of employees.
The issue of apprehended bias must be considered in relation to the issues, or likely issues, in the proceedings before Deputy President Acton. In the particular circumstances of this case, the fairness and reasonableness of the ACTU process cannot be a live issue for her determination.
In expressing that view we should say immediately that we agree that the ACTU officers' decision had a significant, perhaps critical, bearing on Deputy President Polites' decision to give coverage of the employees of the ten companies to MEAA. We also accept everything put by counsel in relation to s.118A(2) and the significance of para. (c). But, notwithstanding those matters and the fact that Deputy President Polites' order purports to give MEAA coverage "to the exclusion of all other organisations", it is clear that, in this case, it will be the duty of Deputy President Acton to consider for herself the merits of the three contenders for coverage. Neither the ACTU officers' decision nor Deputy President Polites' order can be treated as excluding consideration of AWU-FIME's claim. The reason for this is that, as both respondents accept, neither of AWU-FIME's predecessor organisations had any notice of the dispute over exhibition employees in early 1992. Neither knew that the matter was to be considered by the ACTU officers. Neither had any knowledge of the proceedings that culminated in Deputy President Polites' order. In this situation it would run contrary to basic rules of fairness for Deputy President Acton to give any weight to the fact that the officers' decision and Deputy President Polites' order were in favour of MEAA rather than AWU-FIME.
The view of a relevant peak council is relevant to a determination on the merits, and may be highly influential. But not where that view has been reached without notice to one candidate for coverage. Because of that circumstance, the ACTU officers' decision cannot have more than historical interest. Of course, it remains the fact that, rightly or wrongly, MEAA has covered the relevant workers since May 1991. It will be for the Commission to determine what significance (if any) that historical fact has to its adjudication on the merits. If the fact has some significance, it has that significance regardless of the fairness and reasonableness of the process that gave rise to the ACTU officers' decision and Deputy President Polites' order. The legitimacy of the process becomes relevant only if a party goes beyond the historical fact and asks the Commission to attribute weight to the judgment of the ACTU officers. Counsel for the respondents has expressly conceded that this course is not open to his clients in the circumstances of this case. So it is apparent that the fairness and reasonableness of the ACTU officers' determination of 2 April 1992 will not be an issue that Deputy President Acton has to decide. Accordingly, it will not be necessary for her to embark upon a consideration of the steps taken by ACTU officers before that determination was made. The action she took in 1991 is irrelevant to her inquiry. That being so, the fact that she had some involvement at that time would not cause anybody reasonably to apprehend that she is incapable of bringing an impartial and unprejudiced mind to the issues she does have to decide.
Orders
In our opinion both grounds fail. We have not dealt with a submission put by counsel for the respondents to the effect that the applicants in proceeding NI 294 of 1994 waived their right to argue that Deputy President Acton should be disqualified because they failed to raise the matter when the application first came before her, they having always known of her 1991 involvement in the ATAEA-BWIU dispute. There may be force in this submission but, even if it was upheld, it would have remained necessary for us to deal with AWU-FIME's case on the merits. The respondents concede that AWU-FIME had no knowledge of Deputy President Acton's earlier involvement until she made her statement on 20 September. Immediately after she made that statement AWU-FIME asked her to disqualify herself. In the case of that applicant, there is no question of waiver. Under these circumstances, nothing is to be gained by considering whether the other applicants have waived their rights.
Each application will be dismissed.
I certify that this and the preceding twenty-three (23) pages
are a true copy of the Reasons for Judgment
of the Court.
Associate:
Dated: 14 September 1994
APPEARANCES
No. NI 293 of 1994
Counsel for the Applicant: P Cook
Solicitors for the Applicant: McLellands
Counsel for the Second and
Third Respondents: R W Hinkley
Solicitors for the Second and
Third Respondents: Slater and Gordon
Date of hearing: 15 August 1994
No. NI 294 of 1994
Counsel for the Applicant: L Kaufman
Solicitors for the Applicant: Rigby Cooke
Counsel for the Second and
Third Respondents: R W Hinkley
Solicitors for the Second
and Third Respondents: Slater and Gordon
Date of hearing: 15 August 1994
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