Trevor Yawirki Adamson

[2017] FWC 1340

[2017] FWC 1340

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Trevor Yawirki Adamson
(AB2016/662)

COMMISSIONER HAMPTON ADELAIDE, 10 MARCH 2017

Application for an FWC order to stop bullying – conciliation proceedings conducted by the Commission – detailed statement and recommendations issued – whether Member should recuse from further conduct of the application – reservations expressed by a party – whether circumstances lead to proper basis for apprehended bias – no assessment of merit made – no basis for apparent or actual bias – duty to deal with application – not necessary or appropriate to disqualify.

1. The Background

[1] Mr Trevor Adamson has made an application for a stop bullying order under s.789FC of the Fair Work Act 2009 (the FW Act). Mr Adamson is the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). His application names two persons, Mr Richard King, General Manager and Mr Bernard Singer, Deputy Chairperson, of the Executive Board and various allegations have been made about their conduct. APY Inc is named in the application and together with the Mr King and Mr Singer form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to certain lands in Northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of 10 elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes the APY Inc as a corporate entity with status, powers and functions.

[3] In the responses provided to the application, Mr Singer and Mr King have strongly rejected the allegations made by Mr Adamson. They have also raised three “jurisdictional issues”; being that:

● Mr Adamson is not a “worker” as defined by the FW Act and the conduct complained of did not occur in the context of the applicant being “at work”;
● as far as any of the allegations may be factually correct, it should be regarded as reasonable management action carried out in a reasonable manner; and
● the application is vexatious and an abuse of process.

[4] The Commission as presently constituted has been dealing with this application through various processes. By consent, the Commission conducted a two day conciliation conference in Alice Springs on 8 and 9 December 2016. The purpose of the conference was to explore whether an agreed outcome could be achieved and it was conducted on a without prejudice basis. Mr Adamson attended with his support person, Mr Chambers. Mr Harbord of Johnston Withers, attended as representative of APY Inc and Mr Singer and Mr King, who were also in attendance. Mr Tjami, the Director of Administration, also attended on behalf of APY Inc. It was agreed by all parties that the detail of the discussions at the conference would be kept confidential on the basis that the Commission would subsequently issue a summary of any observations and recommendations arising from the conference.

[5] During the course of the conference, again with the consent of the parties, I did briefly speak directly with the parties. This “caucus” was an opportunity for parties to raise any concerns about the conduct of the conference itself and so that the Commission would be able to act as a conduit for proposals if any were made. The merit or otherwise of the application and the responses was not discussed and ultimately no particular new proposals or information, and no concerns, were advanced by any party. The feedback on the caucus discussion was summarised by the Commission to the full conference.

[6] As outlined above, the Commission subsequently issued a comprehensive Statement and Recommendations. I will say more about the basis of this document later; however, it is appropriate to record that it made no findings or assessment of the merit or otherwise of the application or the responses, did not canvass the jurisdictional objections raised by the respondent parties, and made recommendations that drew upon the apparent implications of the APY Act and the common objectives revealed by the parties during the course of the conference. The likely terms of the Statement and Recommendations were also foreshadowed, in general terms, to the parties at the conclusion of the conference.

[7] All parties subsequently accepted the Statement and Recommendations; however, during the course of subsequent events various allegations about “non-compliance” were made and Mr Adamson has indicated that he seeks for his anti-bullying application to be heard and determined by the Commission. I note that despite the apparent acceptance of the recommendations, no agreement between the parties and no discontinuance of the application took place. In these circumstances, the application should be heard and determined and this necessitates the Commission considering the relevant jurisdictional objections being advanced by the respondent parties.

[8] I further note that some of the latter allegations concern the organisation of an APY Executive Board meeting that was conducted in order for the Commission to explain the terms of the Statement and Recommendations. The Board meeting took place, with telephone links, however a common position that would permit the application to be withdrawn was not apparently reached.

2. The immediate issue

[9] Given that the matter is now due to be formally considered and determined by the Commission, including the jurisdictional objections, submissions were sought from the parties in relation to various procedural matters. One of those matters was to provide an opportunity for the parties to raise any concerns about the Commission as presently constituted continuing to deal with the application.

[10] The respondent parties expressed such concerns and submitted as follows:

“The usual practise in Industrial Tribunals is for that a Commissioner who participates in the Conciliation Process would not determine the merits of the matter. This is a longstanding principle, to enable parties to fully and frankly discuss the issues at conciliation in an attempt to resolve the matter.

As have been indicated in your email, the Commissioner has participated in a very comprehensive conciliation process, including separate confidential discussions with the parties, and has issued a detailed statement of recommendations.

There could be a perception that the Commissioner has formed certain views on some matters in dispute, without hearing the full evidence

The Respondents respectfully consider therefore that it would be more appropriate and faire for all parties concerned that another Commissioner now hear the argument and determine the evidence in relation to the matter.” 1

[11] Although this was not a formal objection, I have considered whether I should recuse (disqualify) myself from further dealing with the application.

[12] Mr Adamson indicated, in effect, that there was no reason for the Commission as presently constituted not to continue with matter, “at the very least until the Jurisdiction and the Johnston Withers retainer by APY matters are dealt with ….”: 2

[13] Accordingly, it was necessary for the Commission as presently constituted to consider whether I should recuse myself from further dealing with the application. On 8 March 2017, I advised the parties that I would not do so and that reasons for decision would be issued.

3. Consideration

[14] The general history and the basis of the concerns advanced by the respondent parties have been outlined above. In these circumstances, it is appropriate to contemplate the proper basis for consideration of the issue.

[15] I would respectfully agree with and adopt the comprehensive summary of the relevant principles outlined by Wilson C in Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia 3. Without detracting from that summary, the following is of relevance to this matter:

● The impartiality of the Commission is central to a fair hearing. Bias, whether actual or apprehended, connotes the absence of impartiality. Applied to Commission members, the governing principle is that a Member is disqualified if a fair minded observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question that the Member is required to decide. The principle gives effect to the requirement that justice should both be done and be seen to be done.
● The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the FW Act. Relevantly, the Commission must act in a manner that:

• is fair and just;



• is quick, informal and avoids unnecessary technicalities;



• is open and transparent; and



• takes into account equity, good conscience and the substantial merits of the case.

● The test is an objective one 4 and is based upon the need for public confidence in the administration of justice. The High Court also observed in Johnson v Johnson5 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.” 6

● A two-step process is involved in the assessment of a potential apprehension of bias. First, the identification of a factor, statement or event it is said might lead a (Judge) to decide a case other than on its legal and factual merits; and second, an articulation of some proper connection between the factor, statement or event and the feared deviation. 7
● Application of the apprehension of bias principle to the work of the Commission and its predecessors has taken account of its statutory role and purpose including that grounds for disqualification must be more than the member’s past decisions or that they have had previous contact (as a Member) with one or more of the parties or with the facts that might be involved in the matter. 8

The failure of a Commission member to disqualify themselves, in circumstances where statements which they have made give rise to a reasonable apprehension of bias, is a failure to accord procedural fairness. 9

There is no principle that a Member will always disqualify themselves because of what they may have been said or done at earlier stages of proceedings. Likewise, there is not a principle that extends to (automatic) disqualification because of what has been said or done in conciliation conferences. 10

The possibility of the apprehension of bias must be “firmly established” in the case of an application for disqualification for suspected prejudice. 11

● Members should not too readily agree to disqualify themselves and they have a duty to hear and determine matters in the absence of proper grounds for disqualification. 12

[16] Accordingly, in some circumstances, participation in conciliation proceedings and the making of detailed recommendations may give rise to relevant concerns of apprehended bias, but not necessarily so. For that reason, it is also common practice, but far from universally so, that conciliation and determinative functions are often separated. Whether concerns of apprehended (or actual bias) arise will, in this context, depend upon the nature of the conciliation processes and the statements (if any) made by the Commission in the course of those processes.

[17] In this case, the manner in which the conciliation was conducted, and the basis of the Statement and Recommendations, does not support any such concerns. The factors leading to that conclusion include:

● The Statement and Recommendations expressly stated that no findings or assessment of the merit or otherwise of the application or the responses has taken place and any fair reading of the document would reinforce that fact;
● The conference conducted by the Commission did not canvass the jurisdictional objections raised by the respondent parties;
● The recommendations made by the Commission drew upon the apparent implications of the APY Act and the common objectives revealed by the parties during the course of the conference. They did not reflect any concluded view about the substantive merit of the application or the responses;
● The brief caucus with the parties occurred by consent, did not involve the discussion of the substantive merit of the various positions or without prejudice proposals being advanced, and the results of the caucus were reported by the Commission to the full conference; and
● The likely terms of the Statement and Recommendation were also discussed, in general terms, with the parties at the conclusion of the conference.

[18] Further, the particular nature of the recommendations in this case does not lead to any justifiable concerns about whether any views have been formed by the Commission as to whether (if jurisdiction and grounds exist) orders would be considered and made, or the form of any such orders. This is because the recommendations dealt with the implementation of largely agreed and sound decision-making and governance practices rather than what might be considered to be matters principally directed to the prevention of workplace bullying. In any event, as would be clear from the Statement and Recommendations document itself, the recommendations were not, in this case, dependent upon any view about the merit of the claims and counter-claims.

[19] There has also been no statements made by the Commission in the subsequent directions conferences or the APY Executive Board meeting that would suggest any sense of prejudgment, and none has been suggested. Indeed, other than the general statement of concern, no specific grounds for recusal have been advanced in this matter.

[20] Simply put, there was no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of the questions that the Commission is required to decide.

4. Conclusions and future conduct of the application

[21] Accordingly, I considered that it was not necessary or appropriate to recuse myself from continuing to deal with the application. Given the absence of a proper basis for doing so, and the inevitable delay in having another Member take up the file, it was incumbent upon the Commission as presently constituted to maintain the file and deal with the matter.

[22] Directions leading to the hearing and determination of the relevant preliminary jurisdictional objections 13 have been issued and other procedural and merit matters have been reserved pending the outcome of those objections.

COMMISSIONER

Final written submissions:

2017

6 and 7 March.

 1   Letter from Mr Harbord dated 6 March 2017.

 2   Letter from Mr Adamson dated 7 March 2017.

 3   [2014] FWC 3117.

 4   Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee (2000) 205 CLR 337, at p 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ.

 5 (2000) 201 CLR 488.

 6   Ibid at p 493.

 7   Ebner v Official Trustee (2000) 205 CLR 337 at p 345.

 8   R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 and Re Finance Sector Union of Australia and Another Ex Parte Illaton Pty Ltd (1992) 42 IR 352.

 9   UFU v MEFSB (2005) 141 IR 438.

 10   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union of Australia v John Goss Pty Ltd (2003) 125 IR 247, per Duncan SDP, Cartwright SDP, Tolley C; Oram v Derby Gem Pty Ltd (2003) 134 IR 379, per Lawler VP, Kaufman SDP, Blair C; Priestly v Department of Parliamentary Services[2011] FWA 672, at [11], per Watson VP; and CFMEU v FWC[2013] FWC 9343, per O’Callaghan SDP; upheld on appeal [2014] FWCFB 1443, per Watson SDP, Kovacic DP, Wilson C.

 11   Re JRL; Ex parte CJL (1986) 161 CLR 342, p 352, per Mason J.

 12   Ibid.

 13   Two of the jurisdictional issues are to be determined by the Commission as preliminary points.

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