United Workers' Union v Hot Wok Food Makers Pty Ltd
[2022] FWCFB 158
•18 AUGUST 2022
| [2022] FWCFB 158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
United Workers' Union
v
Hot Wok Food Makers Pty Ltd
(C2022/3219)
| VICE PRESIDENT HATCHER | SYDNEY, 18 AUGUST 2022 |
Appeal against decision [2021] FWCA 4524 of Deputy President Mansini at Melbourne on 28 July 2021 in matter number AG2021/6101
Introduction
In this matter, the United Workers’ Union (UWU) appeals a decision made on 28 July 2021[1] to approve the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (Agreement). The UWU contends in its appeal that the decision was in error because the Commission could not be satisfied that the Agreement passed the better off overall test (BOOT) within the meaning of s 186(2)(d) and s 193(1) of the Fair Work Act 2009 (Cth) (FW Act); that the Agreement was genuinely agreed to by employees to be covered by the Agreement within the meaning of s 186(2)(a) and s 188 of the FW Act; and that the group of employees covered by the Hot Wok Agreement was fairly chosen within the meaning of s 186(3) of the FW Act. The UWU also contends that the undertakings accepted in connection with the approval of the Agreement did not address any of these matters. Permission is required for the appeal under s 604 of the FW Act. In addition, the appeal was filed outside of the time prescribed by r 56(2) of the Fair Work Commission Rules 2013, so an extension of time is required for the appeal to proceed.
Pursuant to the Commission’s directions, the parties filed written submissions in relation to the appeal and, on 21 July 2022, all matters arising in the appeal proceeding were the subject of a hearing before us in Brisbane. The respondent to the appeal, Hot Wok Food Makers Pty Ltd (Hot Wok) filed further written submissions on 27 July 2022. At that point we reserved our decision. However, in our initial consideration of the matter, background research that was conducted into earlier matters before the Commission involving Hot Wok or its related entities disclosed factual material that had been placed before the Commission which was, arguably, inconsistent with representations made to the Commission on behalf of Hot Wok in connection with the application for approval of the Agreement. That gave rise to a concern on our part that there were potentially grounds, in addition to those raised by the UWU in its appeal, for considering that the Agreement had not been genuinely agreed by the employees to be covered by it as required by s 186(2)(a).
On 1 August 2022, the chambers of the presiding member sent an email to the parties requesting that Hot Wok provide additional information to the Commission about the matters of concern. The email commenced as follows:
“In the event that permission to appeal is granted and the appeal is upheld, it will be necessary for the application made by the respondent to this appeal for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (Hot Wok Agreement) to be reconsidered, having regard to all the approval criteria in ss 186 and 197 (sic, “187”) of the Fair Work Act 2009 (FW Act). The Full Bench would prefer to deal with all potential issues arising in this matter in a single decision. In this respect, the respondent is requested to provide further information as follows:…”
The email then particularised the matters of concern, and concluded:
“The respondent is requested to provide the information requested in (2) and (3) above by way of a statutory declaration made by a person with the requisite authority and knowledge.
The Full Bench requests that this information is provided by 5:00pm (AEST) Monday 8 August 2022.”
The only response provided to this request by Hot Wok was an email sent by its lawyers to the Commission on 8 August 2022 which simply stated (formal parts omitted):
“In the event that the extension of time and permission to appeal is granted and the appeal is upheld then we are instructed that Hot Wok intends to withdraw the application pursuant to Section 588.”
It is readily apparent that Hot Wok’s email is simply non-responsive to the request for further information. This caused us to publish a statement on 9 August 2022[2] (Statement). In the Statement, we recounted the history of this matter, set out our email to the parties of 1 August 2022 and Hot Wok’s response, and said:
“[6] On the basis of matters (2) and (3) in the Commission’s email of 1 August 2022, we hold a concern that the Hot Wok Agreement may not have been made in accordance with s 182(1) of the FW Act, in that:
(1) some or all of the employees who purportedly voted to approve it may not have been employed by the respondent, being the employer under the agreement, at the time the agreement was purportedly made; and
(2) some or all of the employees who purportedly voted to approve the agreement would not be covered by the agreement because (whether or not they were employed by the respondent) their jobs did not fall within the classifications in the agreement.
[7] Consequently, we are concerned that:
(A)the Hot Wok Agreement may not have been genuinely agreed in accordance with the requirement in s 188(1)(b) of the FW Act and should therefore [not] have been approved by the Deputy President; and
(B)the Form F17 declaration made by Mr Darren Latham on 8 July 2021 in support of the application for approval of the Hot Wok Agreement may have contained a number of incorrect statements of fact, with the possibility that this was intentional.
[8] Our concerns in this respect have been amplified by the fact that, having been requested to provide information to address the identified matters of concern by 8 August 2022, the respondent extraordinarily and contumaciously failed to do so.
[9] In our email of 1 August 2022, we indicated that the matters of concern arose in the context of the need to redetermine the application for approval of the Hot Wok Agreement in the event that the UWU’s appeal was upheld. However, we consider that the matters are equally relevant to the antecedent issues of whether an extension of time to file the appeal should be allowed, whether permission to appeal should be granted and whether the appeal should be upheld. The respondent’s foreshadowed intention to “withdraw” the application for approval of the Hot Wok Agreement should the appeal be upheld does not, therefore, dispose of our concerns for the purpose of this proceeding.”
We then identified additional matters which had come to our attention, and said:
“…These matters have given rise to a further concern on our part that there may be reasonable grounds for believing that the Hot Wok Agreement was not genuinely agreed to by employees and, accordingly, that the agreement was not genuinely agreed in accordance with the requirement in s 188(1)(c) of the FW Act.”[3]
Finally, we stated that in light of Hot Wok’s failure to comply with our request in the email of 1 August 2022, our provisional view was that we should make an order under s 590(2)(a) and (d) of the FW Act requiring five identified persons to attend a further hearing in the Commission to give evidence and an order under s 590(2)(c) requiring the production of certain identified documents (provisional orders).[4] We listed a short hearing to occur on 12 August 2022 at 1.00pm in order to give the parties an opportunity to respond to our provisional view on the basis that, if both parties advised beforehand that they did not oppose the provisional view, the hearing would be vacated and the provisional orders would be issued.[5]
Shortly before the hearing listed for 12 August 2022 was due to commence, Hot Wok sent an outline of submissions to the Commission in which it stated that it opposed the making of the provisional orders and applied for us to disqualify ourselves from further hearing this appeal on the ground of apprehended bias. It elaborated on these submissions at the hearing. The UWU supported the making of the provisional orders and made brief submissions to the effect that Hot Wok had not established a proper basis for us to recuse ourselves.
This decision concerns whether we should make the provisional orders and Hot Wok’s recusal application. The proper course is to decide the recusal application first. The recusal application is somewhat unusual because it asks us, as the members constituting the Full Bench in this matter, to recuse ourselves on a collective basis simultaneously. In case any point arises about this in the future, our decision in relation to the recusal application, including the reasons given for it, is that of all the members of this Full Bench both individually and collectively.
The recusal application
The principles stated in the High Court decision in Ebner v Official Trustee in Bankruptcy[6] concerning apprehended bias are applicable to Hot Wok’s recusal application. In short, a judge or tribunal member 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.[7] The application of the apprehension of bias principle requires two steps. First, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[8] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[9]
Hot Wok’s submissions identify, as we understand them, four matters said to give rise to a reasonable apprehension of bias:
(1)Our characterisation in the Statement of Hot Wok’s failure to comply with or respond to the request for further information as “extraordinary and contumacious”. This, it was submitted constituted a finding ex parte and on the public record as to the characterisation of Hot Wok’s conduct and appeared to constitute the formation of a view about the character and credit of Hot Wok.
(2)The “concern” we were said to have expressed in the Statement as to the conduct of Mr Latham, which Hot Wok characterised as being that he may have intentionally made a false statement, which would be “criminal” or “unlawful” conduct. Hot Wok submitted that it was not appropriate to set this out in a public statement, that the use of expressions such as “may have” and “the possibility that” did not alleviate the damage of such a public statement to Mr Latham’s reputation, and that Mr Latham was not put on notice that such a statement might be made against him or given a prior opportunity to respond.
(3)Our concerns as expressed in the Statement as to the conduct of Hot Wok and others did not arise from UWU’s grounds of appeal, its submissions or the documents, and this, it was submitted, gives rise to the apprehension that the Commission has without notice to the parties conducted some form of investigation, located documents, reviewed those documents and formed views about the effect of those documents without any prior opportunity for the parties to provide submissions.
(4)By the Statement, we have determined that the material sought in the request for information is relevant to its determination of the appeal without first having heard from Hot Wok.
Hot Wok’s submissions in support of its recusal application did not, we consider, address the second Ebner step[10] – that is, there was no proper articulation of the logical connection between any of the above matters and the asserted apprehension that the UWU’s appeal might be decided other than on its merits. Nor did Hot Wok address how any such apprehension would be reasonable in all the circumstances. We reject that any such logical connection exists, and also that any apprehension of a lack of impartiality would be reasonable.
Dealing with the above matters in turn, the first matter complained of concerns the way in which we characterised Hot Wok’s answer to our request for additional information about identified matters of concern. Not only was the request not complied with, the one-sentence answer was simply non-responsive to the request. In those circumstances, it was appropriate to describe the response as “extraordinary” (that is, in our experience, it was unusual for a party to respond to a request for further information in this way) and “contumacious” (that is, intentionally non-compliant). However, even if Hot Wok’s submissions that our characterisation of its response to the request was not appropriate were accepted, we do not consider that the fair-minded lay observer might apprehend that this might cause us to decide other than impartially the entirely separate issues to be determined on the appeal – namely whether an extension of time to appeal should be granted, whether permission to appeal should be granted, and whether there was any reasonable basis for satisfaction that the Agreement met the approval criteria in s 186 of the FW Act. As earlier stated, Hot Wok complains that our characterisation of its non-compliance with the request indicates a view about its “character” and “credit”. It might be said that “character” and “credit” are concepts that are alien to a corporation but, more importantly, they have no relevance to the statutory criteria for approval of an enterprise agreement in s 186. The issues here in this respect are whether the Agreement passed the BOOT, whether it was genuinely agreed by those employees covered by it, and whether the group of employees covered by it were fairly chosen. The absence of the requisite logical connection with these matters means that there could not be a reasonable apprehension that we might decide them other than on their merits.
The second basis for the recusal application is misconceived for two reasons. First, the Statement clearly expressed no finding or concluded view about Mr Latham’s credit in respect of the veracity of his declaration, but in effect gave notice of potential adverse findings should the concerns identified by us not be satisfactorily addressed. It is hardly open for Hot Wok to complain that these potential adverse findings were contained in a public statement in circumstances where it had failed to respond to our earlier non-public request for information to address our concerns. While there might be a reasonable apprehension that a decision-maker who has come to a “clear view” about the credit of a witness might not be inclined to depart from that view,[11] we were taken to no authority which suggests that the identification of the potential of an adverse credit finding in proceedings for the purpose of obtaining a response might give rise to a reasonable apprehension of bias. Second, Hot Wok’s submissions seem to assume an identity of interest between itself and Mr Latham, such that any statement which might conceivably affect Mr Latham’s reputation must logically lead to the possibility of a reasonable apprehension of bias with respect to Hot Wok’s interests in this appeal. The basis of this assumption was not articulated, noting that counsel for Hot Wok did not answer a question put to him during the hearing as to whether Mr Latham was even employed by Hot Wok at the relevant time. It may be accepted, as identified in the Statement, that the veracity of Mr Latham’s declaration may have consequences for the determination of the question of whether the Agreement was genuinely agreed. However, an apprehension that we may decide the appeal on this issue adversely to Hot Wok does not constitute an apprehension that we might not decide the appeal impartially.[12]
As to the third matter, the fair-minded lay observer would be taken to be aware of the following basic features of the Commission’s powers and procedure under the FW Act:
the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s 577(b));
the Commission may, subject to the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate (s 590(1));
the Commission may inform itself by, among other things, conducting inquiries and undertaking research (s 590(2)((f) and (g));
the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s 591);
subject to the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for (s 599); and
in an appeal, the Commission may admit further evidence and take into account any other information or evidence (s 607(2)).
With knowledge of the above matters, the fair-minded lay observer could not form a reasonable apprehension that we might decide this appeal other than impartially merely because we undertook inquiries in the Commission’s own files relevant to the question of whether the Agreement was genuinely agreed, as required by s 186(2)(a) of the FW Act. That is particularly so when, having formed concerns arising from the information so obtained, we advised Hot Wok of these concerns and invited it to respond by way of the provision of further information. The fair-minded lay observer would consider that this constitutes an ordinary and procedurally fair exercise of the Commission’s power.
Finally, the fourth matter advanced in support of the recusal application has no substance based on a plain reading of the Statement. In paragraphs [6]-[8] of the Statement, we stated that the matters identified in the 1 August 2022 email were “concerns” that “may” have the consequence that the Agreement had not been genuinely made in accordance with s 188(1)(b) and, at paragraph [10] in the Statement, we said that the further matters we identified had “given rise to a further concern on our part that there may be reasonable grounds for believing” that the Agreement was not genuinely agreed. The fair-minded lay observer would appreciate that these were not statements of any concluded view about the import of the matters identified, including their relevance, to the determination of the appeal. Further, we made it clear in paragraph [11] of the Statement that our view as to the orders to be made was merely provisional, and in paragraph [12] that the purpose of the hearing listed on 12 August 2022 was to give Hot Wok and the UWU an opportunity to respond to this provisional view. The fair-minded lay observer would therefore understand that Hot Wok had the opportunity to dissuade us from making the provisional orders, including by making submissions that the information sought in the request for further information was not relevant to the appeal. In those circumstances, a reasonable apprehension of bias could not arise.
For the above reasons, the recusal application is rejected.
The provisional orders
Hot Wok submitted that the provisional orders should not be made for two reasons. First, it identified various practical difficulties, including how the orders would be served, who would lead evidence from the witnesses, how any objections to giving evidence might fairly be dealt with (including that Mr Latham may wish to avail himself of the privilege against self-incrimination), and how objections to the admission of any documents produced might be dealt with. Second, Hot Wok submitted that the evidence sought by way of the provisional orders would not be relevant to the determination of the appeal because the issues on appeal are identified in the application for appeal and the submissions, and it is not appropriate for the Commission to introduce new issues for determination of its own volition.
Dealing with the second submission first, we do not accept that the evidence sought to be produced by way of the provisional orders might not be relevant to the appeal. The fundamental issue in the appeal is whether the Agreement was capable of approval under the FW Act and, in that respect, ground 3(b) of the UWU’s appeal is that the Commission was not able to be satisfied that the Agreement was genuinely agreed to by employees to be covered by it within the meaning of s 186(2)(a). The matters raised in the 1 August 2022 email and in the Statement are plainly of potential relevance to these issues. It is correct that the identified matters of concern do not arise from the particulars and submissions advanced by the UWU in connection with ground 3(b), but that does not render them irrelevant. Having regard to the Commission’s powers and functions as set out in paragraph [16] above and that the relevant statutory criteria for approval of an enterprise agreement are dependent on the Commission reaching a state of satisfaction in respect of each criterion, we do not accept that we are strictly confined to the ambit of argument in the parties’ pleadings and submissions. That is particularly the case here where the matters of concern which we have identified appear to be beyond the knowledge of the appellant and raise serious questions about the use of the Commission’s process for approval of enterprise agreements which cannot simply be ignored.
As to Hot Wok’s first submission, it proceeds upon the apparent premise that the Commission is not able to adopt quasi-inquisitorial elements into its procedure. That premise is incorrect: the provisions cited in paragraph [16] above plainly permit this to occur, subject to the dictates of procedural fairness. In relation to the approval of enterprise agreements, the Commission regularly adopts procedures of this nature given that in most cases (as occurred in respect of the Agreement here at first instance) there is no contradictor.
At the hearing on 12 August, we invited Hot Wok to propose a course in the alternative to the making of the provisional orders by which we might address the matters of concern identified in the 1 August email. Hot Wok declined to make any proposal in this respect. We also invited counsel for Hot Wok to simply state his instructions about the matters of concern, but he refused to do so apart from asserting - eventually - that the employees who made the Agreement were in fact employees of Hot Wok at the relevant time. Thus, Hot Wok failed to avail itself of this further opportunity to allay our concerns in at least a minimal way.
Accordingly, we consider that the making of the provisional orders constitutes the only viable procedural way by which the concerns we have raised may be addressed. However, before we proceed to make such orders, we will allow Hot Wok one further opportunity to respond to our concerns in the manner proposed in our email of 1 August 2022. Therefore, we request that Hot Wok provide information addressing the matters identified in paragraphs [4], [6]-[7] and [10] of the Statement, by way of a statutory declaration made by a person with the requisite authority and knowledge, by 5.00pm AEST on Tuesday 23 August 2022. If such a declaration is filed, the person making the declaration shall make themself available for cross-examination and any questioning which we might consider necessary at a further hearing at 10.00am AEST on Wednesday 31 August 2022 in Brisbane.
If Hot Wok chooses not to take advantage of this opportunity, we shall issue the provisional orders. Hot Wok has raised some issues about the terms of the order for the production of documents, but we shall deal with that if and when it becomes necessary. If the orders are issued, the documents will be required to be produced to the Commission by 5.00pm AEST on Monday 29 August 2022, and the witnesses will be required to attend and give evidence at the further hearing at 10.00am AEST on Wednesday 31 August 2022 in Brisbane.
VICE PRESIDENT
Appearances:
H Clift (of counsel) for the appellant.
G Fredericks (of counsel) for the respondent.
Hearing details:
2022.
Sydney, Brisbane and Melbourne via videolink:
12 August.
[1] [2021] FWCA 4524
[2] [2022] FWCFB 151
[3] Ibid at [10]
[4] Ibid at [11]
[5] Ibid at [12]
[6] [2000] HCA 63, 205 CLR 337
[7] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ
[8] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ
[9] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J
[10] Except that counsel for Hot Wok submitted, “the clear departure from the Commission deciding the case on its merits looking at the second step, we say arises from the issues that” had earlier been set out and which we have summarised above. See Transcript, 12 August 2022 at PN 220
[11] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, 242 CLR 283 at [139]
[12] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J
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