Watpac Construction Pty Ltd T/A Watpac Construction v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 405

[2019] FWC 405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Watpac Construction Pty Ltd T/A Watpac Construction
v
Construction, Forestry, Maritime, Mining and Energy Union; Mr Steven Amies; Mr Kurt Pauls
(C2018/6736)

COMMISSIONER HUNT BRISBANE, 15 FEBRUARY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – application for recusal on grounds of apprehended bias

Background

[1] On 29 November 2018 Watpac Construction Pty Ltd (Watpac) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure contained within the Watpac Construction Qld and NT and CFMEU Union Collective Agreement 2015 – 2019 (the Agreement). The Agreement provides for conciliation and arbitration by the Commission of disputes.

[2] The application was made against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), Mr Steven Amies who is a Watpac employee and CFMMEU delegate, together with Mr Kurt Pauls, a CFMMEU Organiser.

[3] The dispute involves Watpac requiring its employees on the Herston Quarter Redevelopment Project (the Project) to use swipe cards to enter and leave the construction site through a turnstile and gate. Watpac says its employees used the technology from around November 2017 until October 2018.

[4] Watpac asserts that in October 2018, Mr Amies directed all workers, including Watpac’s employees to bypass the swipe system and use the vehicle entry gate. It is further asserted that representatives of the CFMMEU encouraged the workforce to not use their swipe pass and the passes were collected. A sign with the CFMMEU logos and indicia was affixed to the entry gates at the Project and read, “The workers here do not support ‘Big Brother’s gates”.

Views of the CFMMEU sought

[5] On 29 November 2018 an email was sent to the parties and the matter was listed for conference before me on 14 December 2018. The respondents (through the CFMMEU) were requested to provide a response to the application by 5 December 2018.

[6] On 6 December 2018 the following was received from the CFMMEU:

“Dear Associate,

My apologies for the delay in responding to your email.

The position of the CFMEU is as follows:

1. The Commission does not have jurisdiction to deal with the alleged dispute. The CFMEU will seek to be heard upon its jurisdictional objection in due course.

2. Without prejudice to its jurisdictional objection, however, the CFMEU agrees to participate in Conciliation on 14 December 2018 as listed.

3. The purported direction, to the extent that it has been given which is not conceded, is not a lawful and reasonable one.”

Conference

[7] A conference was convened before me on 14 December 2018. Watpac was granted leave pursuant to s.596(2)(a) of the Act to be represented by Mr Troy Spence, of Counsel, instructed by Mr Matthew Giles, Associate of DWF. Mr Greg Muir, Operations Manager Constructions for Watpac also attended. Mr Ashley Borg, Senior Industrial Officer attended together with Mr Dale Blackmore of Hall Payne Lawyers, seconded to the CFMMEU. Leave was not sought or granted for Mr Blackmore to attend the conference as the Commission was not informed of his relevant employment. In any event, Mr Blackmore did not, to the best of my recollection, speak at the conference, however he took notes.

[8] At the conference Watpac explained how it is contracted as the managing contractor to construct the Specialist Rehabilitation & Ambulatory Care Centre at the Project site in Herston. It has a number of employees on site, and contracts with other organisations to swell the number of workers on site to up to around 100. Meal facilities are provided, including a canteen. The administration and meal facilities are to the left of the construction of the hospital (when looking at the site from the road).

[9] Employees have been directed to, and up until October 2018 were entering and leaving the construction site from the meal facilities area. A morning briefing is held in the meal facilities area at the commencement of work.

[10] The employees had been using the swipe pass provided to them by Watpac to enter the construction area via a gate, or by a second entrance, a turnstile. The gate and turnstile will operate to allow access to the construction site even if the swipe pass has not been used. Watpac explains its reason for requiring the swipe pass system to be used:

‘The swipe card system was established to control access to the Project, record entry to and from the Project for the purposes of ascertaining who is on site, and store induction information in a readily accessible electronic format. Most relevantly, the swipe card system ensures workers’ safety in the event of a site evacuation.’

[11] Watpac stated that as the managing contractor, it can commercially require all lower level contractors to require their own employees and contractors to use the swipe card system.

[12] The parties participated freely in the conference before me, and respectfully put their views for consideration. It was the CFMMEU’s position that the Commission may not have jurisdiction, and Mr Borg stated that it reserved its position on this issue. Mr Borg did not provide detail as to what the jurisdictional objection might be.

[13] The conference was not recorded. Conferences before a Member of the Commission are ordinarily conducted confidentially and on a ‘without prejudice’ basis between the parties and the Commission, and do not ordinarily constitute part of the public record. Conferences are not ordinarily recorded so that the parties may discuss the matter in question in a frank and candid manner and attempt to resolve a matter in good faith. The Commission’s website relevantly states that, “The recording of any video or audio files or the taking of photographs during proceedings is strictly prohibited”. 1 It is my recollection that the conference concluded after approximately one hour.

[14] I recall that around half way through the conference it was pressed by Watpac that the Commission could make a recommendation to Watpac employees, prior to determination of the application. The recommendation could encourage the use of the swipe card system, on account that it had been in place for almost one year until the recent objection. It was submitted that the recommendation could be made following the conference.

[15] Mr Borg stated throughout the conference that the CFMMEU held concerns relevant to safety on site, and how employees of Watpac, and workers at the site (up to 100), could safely evacuate the meal area in the event of an emergency. He stated that he had been to site in the days or week prior to the conference, and other than the gate and turnstile, there was no other way to evacuate the area to the north. If a fire broke out in the meal area, employees could become trapped and fatalities might occur as they all sought to exit through the gate and turnstile, which he considered to be inadequate.

[16] The parties showed me a map of the site, and Mr Borg stated that when he had been to site within the past week, there had been no evacuation path on the north side of the meal area. He observed that it was blocked by a gate and debris.

[17] Mr Muir stated that since Mr Borg’s visit any fence and debris that he had observed had been removed, and workers could evacuate to the north, allowing them to enter freely (without passing through a gate or turnstile) and back onto the site. The evacuating employees could then make their way through the vehicle entrance onto Herston Road, where they would then go to their designated assembly point and have their names marked off a supervisor’s Ipad or phone. The supervisor would know who had been on site because the workers had earlier swiped in, and all workers could be accounted for.

[18] Mr Borg also raised privacy concerns on behalf of the Watpac employees, and more broadly the workers, noting that medical information stored when the workers were first engaged might be readily accessible to Watpac supervisors, and the CFMMEU was not satisfied that privacy considerations would be met.

[19] During the conference Mr Borg raised that an inspection notice had recently been issued by a WorkCover Inspector. I recall that I briefly reviewed the notice.

[20] Further, the site safety committee had met either the day before the conference or days leading up to the conference, and had passed a resolution to remove the gate and turnstile connected to the swipe card system. There was some discussion at the conference as to the relevant authority of the site safety committee. It was put forcefully by Mr Borg that the site safety committee resolution should be adopted and enforced. I recall that Mr Muir was less convinced with the authority of the site safety committee. During the recusal hearing of 23 January 2019 the following discussion was had relevant to what was discussed during the conference of 14 December 2018: 2

COMMISSIONER:  I don't understand.  Somebody tells me about this committee and I'm curious as to the committee's powers.

MR BORG:  Yes.

COMMISSIONER:  I think Mr Muir might hold up something but not show me what the findings were.  I don't think it's shown to me, but these are notes I made this morning relative to the committee.  I asked what powers.  I recall being convinced by your submissions, Mr Borg, that the committee had persuasive and substantial authority at the site and I thought, "Well, does the employer need to remove the turnstile and gate under authority of the committee?" because it sounded very impressive.

MR BORG:  Yes.  Well, you say that now.

COMMISSIONER:  You were forthright in telling me that they had all of this authority and I remember thinking "Well" and I was asking the applicant, "Who is on this committee and do you let them tell you what to do?"

MR BORG:  It's not a matter of them letting them tell them what to do, just the same as it's not necessarily for Watpac to tell other contractors on that site what to do about health and safety.

COMMISSIONER:  This is what I was asking.  I was asking the parties, "What is this committee and what does it do?" and what powers it has.

MR BORG:  Yes.

COMMISSIONER:  And I was quite impressed.  You were quite convincing that they had a fair bit of authority and influence.

MR BORG:  They do, yes.  They do, most certainly, because decisions are made collectively.  That's the point of the committee.  Now, whether or not someone wants to go rogue and then disavow those decisions, well, that's as matter for them.  However, it is ordinarily for the safety committee to determine matters of health and safety.

COMMISSIONER:  Let's go back to what I said.  I am there asking everybody, "What about this?"

MR BORG:  Yes.

COMMISSIONER:  I think Mr Muir was chiming in with - - -

MR BORG:  Yes, and I will get to that.

COMMISSIONER:  Yes?

MR BORG:  He was chiming in with his comments to the effect that a safety committee, union lackeys - I'm not directly quoting him but it was to that effect.

COMMISSIONER:  It's important.  To the best of your recollection, say what everybody said.

MR BORG:  "They're all union officials", or something to that effect.  I think he alleged that the union was actually on that site safety committee.

COMMISSIONER:  Yes, I recall something like that, yes, and I was thinking, "Oh, really, an organiser is on the committee?"

MR BORG:  Yes, but it's not the case, it can't be the case.  We saw, when we were at the site, photographs of each of the individuals who are on the safety committee and none of those are officials of the CFMMEU.  Perhaps one has a joint hat as being a health and safety representative for the builder, but also is a company delegate for that particular - or a site delegate, but that's not an official per se, he  held some position but he's not on that committee as a CFMMEU representative, he is there as a safety representative on behalf of employees at that particular - - -

COMMISSIONER:  All right.  I recall there being some remonstration that this committee doesn't have the power that you were asserting and I'm sitting there going, "Well, I don't know."

[21] After hearing from the parties for approximately 40 minutes (my recollection), I recall asking Mr Borg his position on Watpac’s right to implement the swipe card system, noting that Watpac asserted that it was reasonable and lawful. Mr Borg continued with submissions relevant to safety, access and egress, emergency signs and the like. It is my best recollection that I responded to the effect:

“You’ve told me about the safety concerns. But the substantive issue in this matter that the applicant wants determined is whether it can enforce the swipe cards being used. Isn’t the safety issues you raise a smokebomb against the substantive matter?”

[22] I had, by this time heard a very great deal about the safety concerns held by the CFMMEU. I had heard little to no submissions relevant to the reasonableness or otherwise of the swipe card system, notwithstanding the safety and privacy concerns held by the CFMMEU. I was redirecting Mr Borg to provide some submissions on the substantive issue other than those opposed on safety concerns.

[23] It is important to note that I do not have a recording of what I said or asked, nor did I make contemporaneous notes. The above is my best recollection as to what I said and asked.

[24] I recall that Mr Borg took exception to my use of the word ‘smokebomb’. He made further submissions on safety and privacy.

[25] After hearing from the parties for a further 20 minutes (my estimate), Mr Muir suggested that Watpac might be in a position to build a third gate to allow for greater evacuation points. He was satisfied that there was a northern evacuation point, contrary to Mr Borg’s latest inspection, and he offered to have a third gate built.

[26] I had little knowledge of the site, and even after being shown a map of the Project, couldn’t envisage what a third gate might look like on a construction site. I inquired as to when the third gate could be built, and was told it would be done as soon as possible, and perhaps it might be completed by the next week.

[27] I offered to the parties my availability to attend a site visit the following week to review all of the evacuation points, the meal areas, the canteen, and the third gate.

[28] At the conclusion of the conference dates were set for the filing of material, including what the question(s) for arbitration should be. I advised that I was not minded to make a recommendation on the information before me. Directions were then formally sent to the parties by email.

[29] On 15 December 2018, Mr Borg sent the following email:

“Dear Associate,

I refer to the above matter and the Directions issued by the Commissioner of yesterday’s date.

We note that the Directions do not record the Commissioner’s intention to visit the site amenities compound at Herston, as raised by her at the Conference.

Whilst the CFMEU opposes the Commissioner’s further involvement in this matter (and does not consent to such), we ask that we be advised of the time and date of the visit in good time to arrange for the attendance of relevant personnel of the CFMEU and others as necessary.

Yours faithfully,

Ashley Borg

Senior Industrial Officer

CFMEU”

[30] On 17 December 2018 my associate wrote to the parties and indicated that I had availability for a site visit on 21 December 2018. A notice of listing was issued on 18 December 2018.

[31] On 19 December 2018 Watpac nominated three questions for arbitration:

“1. Is it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to enter the Herston Quarter Redevelopment Project site through specific turnstiles and/or gates with individually assigned swipe cards using the 3DSafety System?

2.       Other than in the event of an emergency, is it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to exit the Herston Quarter Redevelopment Project site through specific turnstiles and/or gates with individually assigned swipe cards using the 3DSafety System?

3.       In the event of an emergency evacuation of the Herston Quarter Redevelopment Project site, is it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to swipe out with individually assigned swipe cards using the 3DSafety System, via the mobile app, or any other safe method, once they have reached the appropriate muster point?”

[32] On 20 December 2018 at 3.37pm, Mr Borg replied as follows:

“Dear Associate,

I refer to the above matter.

The questions are as follows:

Jurisdictional questions

1.       Is there any dispute, as alleged, for the Fair Work Commission to deal with?

2.       Do the terms of the Agreement allow the Fair Work Commission to deal with

the alleged dispute?

3.       Was the application properly made pursuant to clause 7 of the Agreement, as

read with clause 9 of the Agreement and section 81 of the Work Health and Safety Act 2011 (Qld)?

4.       Has the Applicant complied with the disputes procedures under the Agreement?

5.       Can the Fair Work Commission grant the relief sought by the Applicant where it seeks a determination on the use of the 3DSafety System by persons other than parties to the Agreement?

The Applicant’s proposed questions (with amendments)

6.       Is it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to enter the Herston Quarter Redevelopment Project site through the two specific turnstiles and/or gates with individually assigned swipe cards using the 3DSafety System, with particular regard to requirements under Work Health and Safety and Privacy legislation?

7.       Other than in the event of an emergency, iIs it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to exit the Herston Quarter Redevelopment Project site through the two specific turnstiles and/or gates with individually assigned swipe cards using the 3DSafety System, with particular regard to requirements under Work Health and Safety and Privacy legislation?

8.       In the event of an emergency evacuation of the Herston Quarter Redevelopment Project site, is it a reasonable and lawful direction for Watpac Construction Pty Ltd to direct its employees to swipe out with individually assigned swipe cards using the 3DSafety System, via the mobile app, or any other safe method, once they have reached the appropriate muster point?

Apprehension of bias questions

9.       Might a fair-minded lay observer reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions she is required to arbitrate in circumstances where:

a.       The Commissioner has been privy to without prejudice discussions during a conference hearing; and in which

b.       The Commissioner described work health and safety issues raised by the Respondent as a “smokebomb”; and where

c.       The Commissioner proposes to issue a recommendation?”

[33] This email from Mr Borg was not brought to my attention, nor did I read it until the afternoon of 21 December 2018. Accordingly, I was not aware that the CFMMEU had requested that I recuse myself from arbitrating the application until the afternoon of 21 December 2018.

Site Visit

[34] I attended the site on the morning of 21 December 2018, accompanied by my associate. Those in attendance included Mr Borg, Mr Spence and Mr Giles. After an induction to site, Mr Muir and a site supervisor led all those present through the site, including the meal facilities, and later the construction of the hospital.

[35] I observed that during the visit, workers were generally not performing construction work (other than those on the vehicle gate), and the workers were assembled on the site. At various times the workers chanted in unity phrases such as, “Fair Work, go away” and “Fair Work, stay out of safety”.

[36] I observed a banner that referenced the Fair Work Commission, safety, and I recall it stated something to the effect that the Commission did not have jurisdiction on safety. Another banner read, “FAIR WORK COMMISSION STAY OUT OF SAFETY!!’ It is Mr Borg’s cover photo on his Facebook page, posted on 21 December 2018.

[37] During the site visit I was shown the meal facilities, including the outdoor facilities and meal rooms on the western side, and the much larger meal facilities on the construction site. I was shown the northern evacuation route, and I was satisfied that workers had available to them an alternative route to evacuate, and they would not be limited to the gate and turnstile the subject of the CFMMEU’s concerns.

[38] The group stood by the construction of the third gate, and it was explained that it was not yet complete. Standing by the gate, I had a greater appreciation of how it would look when completed, and the route workers could take in the event of an evacuation. I noted that the bottom step appeared to me to be a little high off the ground, and I said to Mr Borg words to the effect, “Ashley, are you comfortable with how high that step is?” He said no, and then responded to the group words to the effect, “That will need to be lowered”. I advised those present that I would appreciate photos of the gate when completed, and Mr Borg should have access to those, or be permitted to further inspect it.

[39] Towards the end of the visit we sat in a demountable. Mr Muir advised that the third gate would likely be complete by mid-January 2019. I advised Watpac to send through photographs of it when complete. I advised that I would not be prepared to make a recommendation until such time as the third gate was complete and it provided a further evacuation point in addition to the gate, turnstile and northern route.

Recusal application

[40] Upon the recusal application being brought to my attention on the afternoon of 21 December 2018, my associate wrote to the parties informing the CFMMEU that if it wished to press the application, it should advise chambers by 10 January 2019, file and serve material by 16 January 2019, and a hearing would be held on 21 January 2019.

[41] On 8 January 2019 Ms Emma Eaves, IR Admin Officer advised that the CFMMEU offices had been closed until 7 January 2019. A request was made to advise by 21 January 2019 if the application was pressed, with material required by 25 January 2019 and a hearing on 30 January 2019 or according to the Commission’s availability.

[42] The views of Watpac were sought. Ultimately I decided that that the CFMMEU should advise the Commission by 14 January 2019 if the application was pressed, material would need to be filed by 18 January 2019, and a hearing would be held on 23 January 2019. I noted that the directions for the substantive matter before the Commission remained unaltered.

[43] In addition, my correspondence to the parties informed them what the questions for arbitration would be, noting the CFMMEU’s jurisdictional objections, together with matters related to safety for questions 6, 7 and 8.

Correspondence relevant to the recusal application and jurisdiction

[44] On 14 January 2019 the following email was received:

“Dear Associate,

I refer to the above matter and the correspondence from chambers of Friday 11 January 2019.

Please be advised that the CFMEU will press its apprehension of bias objection in the event the matter proceeds to arbitration and the Commissioner retains the matter without referring it to the Panel Head for re-allocation.

To be clear, we will not consent to the Commissioner conducting both the conciliation process and any arbitration that may arise as a matter of procedural fairness and propriety.

At this stage, it is unclear whether the matter will proceed to arbitration and indeed, the CFMEU submits that it cannot proceed to arbitration on jurisdictional grounds in any event.

To that end, we respectfully submit that it would be premature and unnecessary for the Commission to deal with the bias objection at this stage.

Accordingly, the current directions that relate to the objection should be vacated.

Yours faithfully,

Ashley Borg

Senior Industrial Officer”

[45] On 15 January 2019 the following email was sent to the parties from my chambers:

“Dear parties,

The Commissioner has considered the below correspondence of the CFMMEU.  

The Commissioner understands the CFMMEU’s position to be that it is premature for it to press its apprehended bias application before it has been determined whether the Commission has jurisdiction to deal with this matter. If the Commissioner determined that the Commission does have jurisdiction to deal with the application, then the CFMMEU will press its apprehended bias application if the Commissioner does not refer the matter to the Panel Head for re-allocation to another Member to determine the substantive application in this matter.

The Commissioner is of the view that the jurisdictional objections and the substantive application should be heard together.  The questions to be determined are drafted accordingly, and the Commissioner has confirmed the questions for determination.  They include the jurisdictional objections.

If the CFMMEU anticipates a risk of apprehended bias in the Commissioner making any determination in respect of this matter, then that issue must be resolved before the Commissioner makes a determination, including on jurisdiction.

The Commissioner considers that the CFMMEU does press its apprehended bias application and the Commissioner’s proposed directions regarding the apprehended bias application stand. To be clear:

1. The CFMMEU is to file material regarding its apprehended bias application and serve copies on the Applicant by 4:00PM AEST Friday, 18 January 2019;

2. The matter of the CFMMEU’s apprehended bias application will be listed for hearing at 10:00AM AEST Wednesday, 23 January 2019 at the Commission’s Brisbane premises.  A notice of listing will be sent to the parties shortly.  

The substantive directions remain unaltered. The next requirement in accordance with those directions is for the Applicant to file its material on 30 January 2019.   If the Commissioner does decide to recuse herself, then of course the substantive application will be assigned to another member of the Commission, and the directions vacated.  If the Commissioner decides against recusing herself, the matter will proceed as currently directed.

Chambers awaits receipt of the CFMMEU’s material regarding its apprehended bias application by 4:00M AEST Friday, 18 January 2019.”

[46] In accordance with the directions the CFMMEU filed and served its submissions on 18 January 2019. Watpac was invited to file and serve any material in reply it wished to make by 22 January 2019, which it did.

Hearing

[47] The recusal application was heard before me on 23 January 2019. Mr Borg represented the CFMMEU, together with Mr Blackmore. I granted leave to Mr Blackmore given that he is, I understand, employed by Hall & Payne Lawyers, seconded to the CFMMEU.

[48] Watpac was represented by Mr Spence, instructed by Mr Giles. Leave was not opposed and was granted pursuant to s.596(2)(a) of the Act.

What was said by me at the conference?

[49] In the submissions filed by the CFMMEU on 18 January 2019 it was asserted that I expressed:

“emphatic and unqualified opinions about matters in issue and the indicated prejudgement of the matter, including that:

(a) An improvement notice issued by a Work Health and Safety Queensland (WHSQ) Inspector relating to a matter in the proceedings was “irrelevant”;

(b) Concerns raised by the independent Health and Safety Committee were attributed to the CFMMEU alone; and

(c) A work health and safety concern raised by the site safety committee was a mere “smokebomb” of the CFMMEU.”

[50] Yet in the recusal application of 20 December 2018, only one utterance formed the basis of the recusal application, being:

The Commissioner described work health and safety issues raised by the Respondent as a “smokebomb”

[51] At the commencement of the hearing I inquired of the parties, all of whom in attendance are solicitors, or in Mr Spence’s case, a barrister, if they had taken contemporaneous notes of the conference of 14 December 2018. I informed the parties that I did not, and of course, the conference was not recorded.

[52] Mr Spence advised that Mr Giles did make contemporaneous notes on his laptop during the conference, and that had helped guide Watpac in its submissions as to a recollection of what was said during the conference. Mr Spence stated that the notes are not extensive, but are a ‘dot point’ of what Mr Giles was able to type on the day.

[53] Mr Borg stated that the CFMMEU has contemporaneous notes, but did not propose to advance them as they are the notes made by Mr Blackmore, and are not as accurate as transcript.

[54] I informed Mr Borg that where the CFMMEU had asserted that I said the things attributed to me at [49], I had a different recollection. I said it was important to do the very best, according to each of our recollections, or with the assistance of notes, to recall what was said by me.

[55] I made further inquiries as to whether the contemporaneous notes of Mr Blackmore and Mr Giles should be reviewed. Mr Spence advised that Watpac had no objection to Mr Giles’ notes being provided. Mr Borg resisted providing Mr Blackmore’s notes, saying the notes made are subjective [to the author].

[56] Later in the hearing when I again inquired if it might be useful to have Mr Blackmore’s notes, Mr Borg suggested that Mr Blackmore’s notes might not be described as contemporaneous, and he did not know if they would assist or not. Mr Borg said that he, himself, scrawls ‘all kinds of things’ when he is in thoughts, and he considers that he will store ‘all kinds of things in his thoughts’ that he might not store on a piece of paper. I take it from the submissions that Mr Borg considers his own recollection to be better than anything he might omit from putting onto paper.

[57] In questioning Mr Borg as to why one utterance was attributed to me when the apprehension of bias application was made on 20 December 2018, and three utterances were attributed to me in the submissions on 18 January 2019, Mr Borg stated that sometime in January 2019 he formed the view that the submission reflected his understanding of events that occurred in late December 2018. He said that he had ample opportunity to reflect during a period of leisure, while he was on annual leave.

[58] Mr Borg stated that despite the fact that he was on annual leave until 21 January 2019, and the submissions including the three alleged utterances was filed on 18 January 2019, he did settle the submissions for filing.

“Smokebomb”

[59] Relevant to the concern regarding the word “smokebomb”, I informed the parties at hearing of my best recollection of what was said at [21]. I informed Mr Borg that I know that I used the word in posing a question. Mr Borg agreed, stating, “The word was used in a question. I accept that much, Commissioner.” 3

[60] Shortly after agreeing that I posed a question, Mr Borg submitted the following: 4

“Because you weren't asking, eliciting a response on that particular term to me but I had to interject in order to do so.  But you had concluded that the union's concern, or the concern by the safety committee, was a smoke bomb.  It was to the effect "You've got your smoke bomb but what do you say about all this now?  I want to hear about this" and that's fine.  You're perfectly entitled to say that.  I don't cavil with that at this juncture.  The consequence however of you saying that at that juncture is that you ought to recuse yourself from arbitrating the matter because you had made an utterance about - and respectfully, obviously - you'd made an utterance about the matter which is in issue and which goes to the issues that are set down to be determined in arbitration.”

[61] Later he said that I had not asked him a question. I reminded him that he had agreed that I posed it as a question.

[62] Mr Spence indicated that Mr Giles’ notes did cover the issue, but he wished to ensure the Commission understood that the notes were dot points so that Watpac could refresh its memory of the conference, and it not be relied upon as some form of transcript. The notes state:

CH [Commissioner Hunt]: Need to have as much information before me as possible. Think you’re bringing a smoke bomb in. Not dealing with the swipe card issue at all.

“Irrelevant”

[63] It was put by Mr Borg at the hearing that during the conference of 14 December 2018 I reviewed the improvement notice, said, “Whatever his name is”, or I attempted to pronounce a name, and then said, “That’s irrelevant”. I asked Mr Borg if perhaps he had read notes where the word ‘irrelevant’ was used, to have triggered him to recall that I had used that term. He agreed that he had not relied on any notes.

[64] Mr Borg then said that I had used the word ‘irrelevant’ or ‘irrelevance’, but he thinks it was ‘irrelevant’. 5

[65] I indicated during the hearing that I did not agree that I used the word irrelevant or any derivative of it after having reviewed the improvement notice.

[66] During the hearing Mr Spence expanded on Watpac’s understanding of the issue. He stated that at the conference he had handed to me the improvement notice. The submissions filed by Watpac indicate that the improvement notice issued by the Inspector referred to an emergency plan, and it was Watpac who, during the conference, spoke of, and considered the improvement notice to be ‘irrelevant’. Mr Spence stated that neither he nor his colleague could recall me suggesting that the notice was irrelevant. 6

[67] Mr Borg maintained that I did use the word ‘irrelevant’.

Attributing the issues raised by the site safety committee as the CFMMEU’s issue

[68] Relevant to the third ‘utterance’ or concern that the CFMMEU holds, it was not clear to me in the written submissions what I was alleged to have said. The following transcript assists: 7

MR BORG:  The safety committee to one side, it's not that you spoke about the safety committee, it's that you addressed the work health and safety issues as the CFMMEU's issues as though they were the CFMMEU's issues alone.  I know it's a fine point, but it should be seen in the context of you describing the safety issues as a "smoke bomb, a ruse, a device by the union" and nothing more than that.

COMMISSIONER:  As to 38(c), what do you say I said because I am really confused by this assertion?

MR BORG:  At the risk of repeating myself, and I don't want to run around in circles because it's not this one alone that really determines the matter, but it adds to the argument, if I can attempt to quote you as directly as I can, it was to the effect that, "Well, that's your concern", as though it was only our concern, and the context of it being a smoke bomb, on your view.

COMMISSIONER:  I said, "That's your concern"?

MR BORG:  Well, you didn't put it that way, you said, "That's your concern" in passing and then you went on to something else.

COMMISSIONER:  Please be helpful and specific because I need to understand the very nature of the objection and if I said, "That's your concern" that's not very helpful.

MR BORG:  I have just been reminded that it was in the context of, I think, discussion about the third gate and you said something to the effect - - -

COMMISSIONER:  Hang on, if this is Mr Blackmore telling you something, Mr Blackmore, do you have an account of what I said because you were here?

MR BLACKMORE:  Yes.

COMMISSIONER:  What do you say?

MR BLACKMORE:  My recollection isn't in terms of what you were responding to, but, from my memory, it was a response to the substantive applicant along the lines of the third turnstile or maybe a turnstile and were referring to the health and safety committee's recommendation as the CFMMEU's concern and that was the remark that - - -

COMMISSIONER:  What did I say?

MR BLACKMORE:  "That's the CFMMEU's concern", as Mr Borg put it, how he said "Your concern".

COMMISSIONER:  All right, so we're talking about the third gate and that being built, are we?

MR BLACKMORE:  I'm not sure if it was the third gate, I think it was the turnstiles as a proposition.

COMMISSIONER:  With the passes.

MR BLACKMORE:  And then in relation to the committee's recommendations and then I think you referred to the committee's recommendations as the CFMMEU's concerns.

COMMISSIONER:  So I - - -

MR BLACKMORE:  Attributing the recommendations to the CFMMEU, as we understood it.

COMMISSIONER:  Right, so when I am being told about the committee's recommendation, I then say, "That's the CFMMEU's concern"?  Is that what I say?

MR BLACKMORE:  I'm not sure if - my recollection isn't that in-depth, but, as far as I know, it was directed towards the substantive applicant in reference to the site safety committee's recommendation and it was something along the lines of, "The CFMMEU's concern."  That's as far as my recollection can take me.

COMMISSIONER:  All right, I am a little confused.

MR BORG:  My recollection is that also, but it wasn't on just that occasion you referred to the issue, because we discussed the issue that was raised by the safety committee to remove the gates and that there was a problem with the evacuation procedure there, and, on a number of occasions, you described that as "The CFMMEU's concern", notwithstanding that the concern had been raised by the site safety committee itself, and the implication, along with your "smoke bomb" comment, was that, "The CFMMEU is just raising this, they are raising it as a smoke bomb, it's their ruse, their device, that's their issue that they're talking about, well, good on them, let's deal with other matters", to that effect.

COMMISSIONER:  So you think it's the implication when I say, "That's the CFMMEU's concern"?

MR BORG:  Yes, because, as a matter of fact, we share our concerns with the site safety committee.  That's a matter of fact.  However, you were attributing it wholly to us as though we had some say over the site safety committee, as though we had directed them to raise this concern as some kind of smoke bomb, or something to that effect.  That's the implication, and I say that a fair-minded lay observer might reasonably apprehend that - - -

COMMISSIONER:  Did you raise any objection with me at the time that I was improperly - - -

MR BORG:  No.  As I said, you said this on a number of occasions in passing and it was not - as Mr Blackmore said, on at least that occasion, you were directing your comments to the substantive applicant and it wasn't our occasion to speak and, in any event, you are perfectly entitled to say that.  That's up to you, as I said, in relation to my previous submissions.  You can say what you like, it's your conciliation, but it is what consequences then flow from that kind of conduct during the conciliation.

COMMISSIONER:  So when I address Mr Spence and say "You" and "You" and "You think this", I am not speaking about Mr Spence, I am speaking about Watpac.

MR BORG:  Utterances aren't taken in a vacuum, Commissioner.  I do recognise that there is a literal meaning to the union's concern and I accept that we do share the concerns - - -

COMMISSIONER:  When they are the respondent.

MR BORG:  Sorry?

COMMISSIONER:  When they are the respondent, that is typically how I would address parties, wouldn't I?  I'd say, "That's your concern".  Either you personally, Mr Borg, I would say, "Mr Borg, is that your concern?" or would I say, "Is that the CFMMEU's concern?"

MR BORG:  In circumstances where you have been presented with factual evidence saying that this is a safety committee's concern, that the union is advancing that as its submission in the substantive application, well, no, it's not the same.

COMMISSIONER:  And I have articulated to draw an inference, have I?

MR BORG:  Yes, because all things need to be taken in context and you can't just take it out of context and just say, "Well, generally, this is what I mean by the union's concern", et cetera, et cetera.  You said it in a context where, dismissively, you described the union's concern, or the concern - I even fall into it myself - but where you dismissively describe "the concern" as a "smoke bomb", as though it's a device by the union, and then you go on to say that it's the union's concern, as distinct from anyone else who might hold a genuine concern about the matter, then, yes, we are in that same territory as the "smoke bomb" comment, absolutely.

COMMISSIONER:  Right.

MR BORG:  This is context, it's not, for want of a better word, it's not a slam dunk, Commissioner, but it's important context, it needs to be taken into account by a lay observer, an absolute fair-minded lay observer, because it happened and I can't change that it happened.

COMMISSIONER:  I said, "This is the CFMMEU's concern", or words along that line, did I?

MR BORG:  Yes, words to that effect, yes, to the exclusion of anybody else's concern, as though the concern, "Well, okay, it might be raised, but it isn't genuine, it's just advanced as a proposition at that site by the union in order to get its smoke bomb here in the Commission."

COMMISSIONER:  And I should properly have said, "These are the concerns of the employees", should I?

MR BORG:  It could have been put more neutrally, Commissioner, yes.

COMMISSIONER:  All right.

MR BORG:  I am not saying how you should have done it.  You are perfectly entitled to characterise the - - -

COMMISSIONER:  I am just trying to understand because you haven't articulated it until now and I am trying to understand what you say I said.

MR BORG:  Yes.

COMMISSIONER:  And it sounds as though you say I said, "This is the CFMMEU's concern."

[69] I inquired of Mr Borg when did he form the view that I had made an inference during the conference of 14 December 2018? He answered that he did so immediately after making the comment, and said that he didn’t raise a concern because he didn’t have to. I reminded him that it wasn’t raised in the correspondence of 20 December 2018 when the recusal application was made. He agreed that it was not, but it was raised in the written submissions filed by the CFMMEU.

[70] Watpac’s submissions relevant to this issue is that if I had said words to the effect that it was the CFMMEU’s issue, it seems to be an orthodox approach in addressing a party about a particular issue they are raising. 8

[71] It was submitted that even if I had been solely attributing the concerns as the CFMMEU’s concerns, as opposed to the employees’ concerns, the CFMMEU has a very high density at the workplace, and they participated in the conference to represent their members’ interests. It was put that even if it was put that way, there is no prejudice to the CFMMEU.

When the recusal application should be determined

[72] During the hearing there was discussion relevant to when the CFMMEU formed a view that I should recuse myself from arbitrating the application. I explained to Mr Borg that it was not clear to me from the correspondence sent by the CFMMEU on 14 January 2019, when the CFMMEU wanted me to determine if I should recuse myself or not.

[73] Mr Borg explained that he understood that there would need to be a jurisdictional hearing, but he did not know who would be the presiding Member. The following was discussed: 9

COMMISSIONER:  Who did you think, Mr Borg, was going to determine the jurisdictional issue?

MR BORG:  Well, you didn't come to mind, Commissioner.  These matters can be separated out carefully, but what I did say at the conciliation conference on the 14th - on 18 December - no, that was held here at the Commission - - -

COMMISSIONER:  14 December.

MR BORG:  Yes, was that depending on the conduct of the matter, there might need to be - and I didn't say by whom - a jurisdictional hearing and you had articulated in response, I think, to my email that you proposed to deal with the matters at the same time, therefore, the application for recusal falls to be considered at this juncture.

COMMISSIONER:  So when this correspondence was sent on 14 January and you say that it's unnecessary and premature for the Commission to deal with the bias objection, you know that I am the presiding member who would determine the jurisdictional issue?

MR BORG:  No, not necessarily, no, I don't know that.  I knew that you had the file, but I didn't know that you would determine that you would decide the jurisdictional question if it were separated, and that's why I say that this is a hypothetical that I can't speak much to.  Rather, what occurred was that you determined that you would hear the jurisdictional question alongside the - - -“

Submissions on why the Commission was present at a site visit

[74] During the hearing Mr Spence suggested that during the site visit, in the demountable, I had asked a question of those present, as to the status of the improvement notice issued by the Inspector. Mr Spence stated that Mr Giles responded that there had been an application to have it stayed, and it was still going through the review process.

[75] Mr Spence submitted that had I formed the view that the improvement notice was irrelevant to the proceedings, it is doubtful that I would have enquired about the status of it. The following exchange then occurred: 10

MR BORG:  I am sorry, I do have an objection.  This is where perhaps my memory fails me, Commissioner, with regard to an exchange about the improvement notice at that site.  I don't have any recollection whatsoever of that, I don't concede that that occurred.

COMMISSIONER:  I recall, I think, Mr Giles, because you were opposite Mr Borg and you were to my left and opposite you, indicated it had been stayed.

MR BORG:  Yes, perhaps, but I don't think that was the way in which he described things.

COMMISSIONER:  What do you - you don't recall?

MR BORG:  I just don't, I don't have - yes, that's the extent to which I recall something, perhaps.  That rings a bell, I have got to say, it's not that - but I don't recall anything further, so I don't concede to anything further.

COMMISSIONER:  I understand.

[76] Towards the end of the hearing I indicated to Mr Borg that it would be necessary, in a written decision, to detail the site visit on 21 December 2018. I explained that I had undertaken the site visit, all the while without any knowledge of a recusal application. I put to Mr Borg that I had put the safety concerns raised by the CFMMEU ahead of any recommendation Watpac sought. Mr Borg disagreed. The following was said: 11

MR BORG:  No, I don't accept that proposition, Commissioner, with respect.  You did not put the safety concerns foremost in that meeting, rather - - -

COMMISSIONER:  That's why I was there.

MR BORG:  Well, that much was not expressed and that - - -

COMMISSIONER:  You know that's why I was there.

MR BORG:  No, I don't know that's why you were there, but what is important is that a fair-minded lay observer would not know that that was why you were there.

COMMISSIONER:  They offered to build a third gate.  At the time that we had the conference here, they thought it might be built, I was going down to see whether it would provide an appropriate evacuation point because you said that the back access was not appropriate.  Why do you think I was there?

MR BORG:  You were there to resolve the question as to whether or not the gate had actually been installed.

COMMISSIONER:  No.

MR BORG:  Well, in default of anything clear from you at the conciliation - - -

COMMISSIONER:  I'm not there to inspect whether a gate - I wouldn't even know whether it was complete or not.

MR BORG:  Well, you had said, "Well, I'd better go to this site and check it all out, see the layout", et cetera, et cetera.

COMMISSIONER:  Because it's extraordinarily vague because I've not been to such a site and - - -

MR BORG:  Yes, which is fair enough.

COMMISSIONER:  - - - you are all showing me diagrams and talking about things.

MR BORG:  I get all that.

COMMISSIONER:  And you're telling me there's no evacuation.

MR BORG:  Yes, well - - -

COMMISSIONER:  People could die.

MR BORG:  Not just lack of evacuation but also you didn't know where the site - where the buzzers were for signing in and how people might access via the vehicle gate.

COMMISSIONER:  Yes.

MR BORG:  It was for you to get a general understanding of the layout of the site in order for you to make a proper recommendation.  It wasn't for you to confirm that health and safety had been complied with and all that.  You can't reasonably have been there to do that.

COMMISSIONER:  I would have made a recommendation right there and then, wouldn't I?

MR BORG:  Where?

COMMISSIONER:  If I didn't have regard - - -

MR BORG:  At the conciliation conference?

COMMISSIONER:  Yes, on 14 December.

MR BORG:  No, because  - - -

COMMISSIONER:  If I didn't have regard to the safety concerns that you were raising, I would have made a recommendation.

MR BORG:  No, you had determined that you needed to get an idea about how this site operates in terms of its layout.

COMMISSIONER:  Having regard to the safety concerns that you raised, Mr Borg.

MR BORG:  You did not articulate that and that is the difference.  That might have been your thoughts, but I am not privy to your thoughts and a fair-minded lay observer would not have been privy to your thoughts.

COMMISSIONER:  Mr Borg, when the third gate is being proposed and they think it could be built by the time I go out, you know that I am going out there to have a look at the site and to have regard to the safety concerns that you were raising because you were very forcefully putting that people could die without access to somewhere other than these two gates that had been installed, and I thought that important.

MR BORG:  Well, you may have done, but we are not privy to your thoughts, Commissioner, we are - - -

COMMISSIONER:  I just think it's fanciful that you are suggesting that I just went out there for a bit of a gawk.

MR BORG:  No, I am not saying that, but my submission can't be fanciful in the circumstance we have described that the concerns that relate to health and safety as advanced by the CFMMEU are a smoke bomb, and that's what I say, that you haven't done anything that overcomes that, and that a fair-minded lay observer would be privy to, that they would know - they can't get into your mind, Commissioner - I can't either.  I can take your word for it and I can accept here and now that that was knocking about, but nothing in what you did overcame the comments that you made at the conciliation conference on the 14th.

Go for it, go for it, you know, the safety issues you might then raise whilst at the site, well they may well go some way to reaching resolution between the parties on the matter, and that's appropriate and you are entitled to do that, I don't cavil with that.

COMMISSIONER:  I don't know that it was necessarily my job to raise safety issues when I visited the site.

MR BORG:  No, no, no.

COMMISSIONER:  I was there to observe.

MR BORG:  No, I don't say that.  What I say is that it's obviously a function of the Commission to engage in dispute resolution, and I think that's what, more than anything, you were there to do, not to overcome - or nothing in what you did overcame what you said in the conference of the 14th.

What you subsequently do, in fact, can be taken into account - I don't argue with that - but, as I said, there's nothing in bright lights here that will lead a fair-minded lay observer to divert from the conclusion that you might not bring an impartial mind to a matter, and it's more along the lines of it just so happens that you might have had an opportunity to overcome all of that, but, as I said, nothing occurred, and so we ask really, I think, in the position that we have articulated in relation to - I think it's paragraph 40 of the submissions of the substantive applicant.

If I may make a further comment just in relation to the exchanges at the donga - I think it was in relation to the improvement notice that was issued - my recollection of that matter was that I raised that and that they have then expressed that that was the subject of appeal.

COMMISSIONER:  So you recall that now, do you?

MR BORG:  Well, yes.

COMMISSIONER:  You recall raising that?

MR BORG:  I recall that that was raised by me, yes, certainly, definitely, yes.

COMMISSIONER:  It definitely was?

MR BORG:  Yes.

COMMISSIONER:  You couldn't recall this matter - I don't know, I'm guessing - half an hour to 40 minutes ago, but you can recall now that that was definitely you who raised that?

MR BORG:  Well, in the course of the conduct of the matter, my memory has been jogged and that's how I recall the matter unfolded, yes.

Those are my submissions.

COMMISSIONER:  Nothing else?

MR BORG:  No.

COMMISSIONER:  No?  Anything else, Mr Spence, you wish to say?

MR SPENCE:  Nothing, Commissioner.

COMMISSIONER:  No, we don't want to rebut the contention there that you say I'm the one who raised the improvement notice and Mr Borg says he was?

MR SPENCE:  We stand by our recollection.  Once again, we didn't take notes about that, but our recollection was that you had raised that and we spoke of that.

COMMISSIONER:  Yes.

MR SPENCE:  Even in the event that Mr Borg had raised that, and that's certainly not our recollection, you certainly didn't then, Commissioner, make a comment and say, "Well, that's irrelevant, why are we talking about that?"  There was no such response from you in relation to that and the suggestion that, based on one comment, you have so emphatically formed a view, we just don't think that, as I have said before, there was anything improper or unorthodox about the way the conciliation conference was conducted on the 14th, and we are certainly not of the view, as has been put, that the comment you made in relation to the "smoke bomb" was anywhere near the decision we have provided where a judge was found to be biased.  We think that it's just putting it at such a high level, it just doesn't get to that at all.

COMMISSIONER:  That was an apprehension of bias matter, that one, the same as here.

MR SPENCE:  That's correct.

COMMISSIONER:  It wasn't an allegation of bias, it was apprehended bias.

MR SPENCE:  Yes, that's correct, so that's our view in terms of that and we stand by what we have said.  It was our view that, based on the discussions and the conduct of yourself, and we are with you on this, that the inspection was about safety and the whole process, or the majority of that, was about looking at the site and ensuring that it was safe and, in fact, as you have put it, safety was at the forefront of that inspection as a consequence of what had occurred on the 14th, and had you formed a view on the 14th that was emphatic and concrete, could not be moved, it is our respectful submission that a recommendation would have been issued, and that certainly hasn't happened.

COMMISSIONER:  Mr Borg, if the site visit wasn't about safety, why were the people on site yelling things about the Commission not having jurisdiction relevant to safety?

MR BORG:  Because that's one of our jurisdictional arguments.  That's what we say, they haven't conformed with the process for health and safety disputes under the enterprise agreement.  There are two clauses to be read together.  They have bypassed that, they have bypassed the determinations of the site safety committee, which would be proper, and they have brought their application here.

These things are expertly dealt with by people on the ground who are close to the work being performed and they shouldn't be in the hands of people like you and me, detached from that site, who don't perform at that site, so anything you or I might say about that might have very dreadful consequences, as I said, at the site, and I always said that whatever comments I might have made about health and safety whilst at that site, it was for the employer to go back to its safety committee and have all of that fleshed out, and if, arising out of all of that - - -

COMMISSIONER:  So if the employees and organisers present on the site thought that I was there, or the Commission was there, and they said things like, "Stay out of safety" - - -

MR BORG:  Yes.

COMMISSIONER:  So I'm not there for safety but I'm being told to stay out of safety?

MR BORG:  Well, no, I can't speak for them, they would have said what they said, that's up to them, that's a matter for them.  However, there is a perception - - -

COMMISSIONER:  There's officials of the CFMMEU there.

MR BORG:  Yes, myself included.

COMMISSIONER:  And others.

MR BORG:  Yes, and I can speak for myself and I can speak more generally also, but what's the weight of - taking your assertion at its highest, what could ever be the weight of that?

COMMISSIONER:  You are suggesting that I am not there - the principal reason I am there is not safety?

MR BORG:  Yes, because you might have decided the matter, putting aside the health and safety matters, "This is how I see the world, this is how - this is the prerogative of the employer, so therefore this is to be what occurs", and that's consistent with you describing safety as a mere smoke bomb, and so the perception - - -

COMMISSIONER:  So I'm either there for safety or not, Mr Borg.  I thought you said earlier that I wasn't there for safety reasons.

MR BORG:  Well, in my view, you weren't, no, you were there - - -

COMMISSIONER:  So I was there for what reasons, Mr Borg?

MR BORG:  In order to ascertain the facts that are relevant to you issuing a determination, if that's the course that you decided to take.

COMMISSIONER:  A recommendation?

MR BORG:  A recommendation, if that's the course that you decided to take.

COMMISSIONER:  And would I have any regard to safety?

MR BORG:  Well, my submission has been all along that safety should be part of the question as to the reasonable and lawfulness of a direction.

COMMISSIONER:  Yes, but was I turning my mind to it or not?

MR BORG:  Well, relevantly, you described a health and safety issue raised by us as a "smoke bomb".

COMMISSIONER:  That is not what I said, Mr Borg.

MR BORG:  Well, that's my answer.

COMMISSIONER:  I think that you continue to fail to have regard to the context in which it was put.

MR BORG:  No, I don't, I don't at all, I don't accept that whatsoever.  I don't see the context as being material at all.  As I said, you lamented that I harped on about health and safety, and continued to do so.

COMMISSIONER:  I didn't use those words, did I?

MR BORG:  Those are my words and I accept that, but you lamented, in any event, that I had already given you submissions about work health and safety.  It would be highly irregular, unusual, for you, in the context of your lamenting that, that you then ask for a further recitation of the same submissions by eliciting further information from me about it by describing what I say is a "smoke bomb".

It cannot reasonably be considered that you had said that word, made that remark, in order to elicit further submissions from me.  It is as clear as it can ever be:  you had concluded, "We have dealt with this issue, it's a smoke bomb, I'm not entertaining it, we are going on to the other aspects of the decision", and that's where other aspects, as a consequence, might have, in your view, overcome the work health and safety, and that is, I think, what may have informed the protestations of individuals who were at that site that day.

COMMISSIONER:  So none of those words were used.

MR BORG:  Which words?

COMMISSIONER:  That you have just attributed just now.

MR BORG:  These are my words, I'm talking here.

Progress of the substantive application

[77] The parties have been complying with directions to file material relevant to the substantive application which will also determine the Commission’s jurisdiction to determine the substantive application.

[78] I confirm that I am aware that material has been filed and served, but I have not read the material.

[79] If I decide to recuse myself, the jurisdictional objections and substantive application will be referred back to the relevant Panel Head for allocation to another Member of the Commission. If I decide against recusing myself, I will determine the jurisdictional objections and the substantive application if the Commission has jurisdiction.

CFMMEU’s submissions

[80] The CFMMEU submitted that arising out of the conference of 14 December 2018, a fair-minded lay observer may reasonably apprehend that I may not bring an impartial and unprejudiced mind to any arbitration of the matter.

Testing a claim of apprehended bias

[81] The following submissions were made, in reliance of relevant authorities:

“7. The majority of the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 restated the principle of apprehension of bias:

[6] 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), the governing principle is that, subject to qualifications relating to waiver …or necessity…, 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.

[7] 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.[citations omitted]

8. Dean J in Webb v The Queen (1994) 181 CLR 41 set out a frame of reference for four potentially disqualifying factors:

The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgement. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification byassociation. It will often overlap the first and consists of cases where the apprehension of prejudgement or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. (emphasis added)

9. Hatcher VP in Resmed Ltd v Australian Manufacturing Workers' Union [2015] FWC 4007, referring to Kirby v Centro Properties Limited (No 2) (2011) 202 FCR 439, concisely set out the development of the principles relating to recusal for apprehended bias:

[5] The principles relating to disqualification for apprehended bias, particularly as they relate to a situation where a court or tribunal member has previously made a finding or stated an opinion about a particular issue, were usefully summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2) as follows:

“[8] The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.

[9] The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):

... 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.

[10] The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.

[11] In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).

[12] The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge at [34].

[13] However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:

“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature (at [139]). (Emphasis in original.)

[14] The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ.

[15] These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

[16] Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.

[17] To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.

[18] Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.

[19] A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).

[20] As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.

[21] In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:

The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.

[22] In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.

[23] However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.”

10. Relevantly, the two step test arising out of Ebner and applied in a number of authorities is as follows:

(a) firstly, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits; and

(b) secondly, having identified the factors or circumstances, ‘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.’ 12

11. However, a third limb of Ebner is often expressed requiring a consideration of ‘the reasonableness of an apprehension of that deviation being cause by that factor in that way.’ 13

12. Upon applying the Ebner test, an assessment must be made whether a fair-minded lay observer might apprehend that the case might not be decided impartially.

13. The fair-minded lay observer is one with knowledge of all the circumstances of the case. 14

14. The Commissioner, who a claim of apprehension of bias is made against, must apply the fair-minded lay observer test. The Commissioner can be guided by the following observations of French CJ in British American Tobacco Australian Services Limited v Laurie (2011) 242 CLR 283:

48 The interposition of the fair-minded lay person could never disguise the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim. As Professor Olowofoyeku says:

“…the utility of the construct is that it reminds the judges making such decisions of the need to view the circumstances of claimed apparent bias, as best they can, through the eyes of non-judicial observers. In so doing they will not have recourse to all the information that a judge or practising lawyer would have. It requires the judges to identify the information on which they are to make their determinations. While it is necessary to be realistic about the limitations of the test, in my opinion it retains its utility as a guide to decision-making in this difficult area.”

15. The application before the Commissioner primarily relates to disqualification by conduct on the basis of a reasonably apprehended bias on the basis of prejudgment.

16. Prejudgment in the context of bias means: 15

It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party.

17. To suggest that a Commissioner might not bring an impartial and unprejudiced mind is ‘to make a statement which has several distinct elements at its roots’, as Hayne J set out in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507:

“… First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.”

Power of the Commissioner

[82] It was submitted by the CFMMEU that Members of the Commission are entitled to make a recommendation or express an opinion during a conference; but the exercise of such a discretion must be subject to the principles of apprehension of bias.

[83] The CFMMEU submitted that the Commission must exercise its discretion under s.592(4) of the Act with the principles of impartiality in mind. While a recommendation can be made, it may give rise to an apprehension of bias. It was put that while the expression of an opinion, or the making of a recommendation is not an interlocutory judgement it does have the potential to give the impression that the Commission’s mind is made up in particular circumstances.

[84] As a consequence, it is submitted that a lay observer may reasonably apprehend that, when it comes to determining the matter, a Member may not depart from that initial opinion/recommendation insofar as it relates to a live issue to be determined at arbitration.

Members who conciliate should refrain from arbitrating the same matter

[85] It was submitted that to avoid the potential of apprehension of bias when conferences are held under s.592 of the Act, the Member conducting the conference should not be the Member who arbitrates the matter (my emphasis). The CFMMEU submitted that this is a not a new proposition, and it is not uncommon for a ‘Member who presides over a conference to reallocate the future conduct of the matter.’

[86] Mr Borg referred the Commission to the Commission’s Fair Hearings practice note. It states as follows:

“Impartiality & apprehended bias

24. The Commission’s impartiality is central to a fair hearing. Bias, whether actual or apprehended, is inconsistent with the Commission’s obligation to provide a fair hearing.

25. The general principle is that a Member should not deal with a matter if in all the circumstances a fair minded observer might have a reasonable apprehension that the Member might not bring an impartial and unprejudiced mind to the case before him or her.

26. If a party believes that a Member may not bring an impartial mind to the matter, they may make an application that the Member disqualify himself or herself from hearing the matter. For example, if a Member conciliates a matter and a party believes that the Member may not bring an impartial mind to the arbitration of the dispute then they may request that the matter be referred back to the relevant Panel Head for allocation to another Member.”

[87] Mr Borg submitted that the practice note goes so far as to raise the particular circumstance in this matter, and he stated that it had been his experience, more generally, that where a Member conciliates a matter, that Member would not ordinarily, save for some exception, then arbitrate the matter.

[88] I indicated to Mr Borg that it was not my experience that Members of the Commission, as a general rule, sought for the matter before them to be reallocated on account of having conciliated the matter. Nor is it the case that a presiding Member reallocates a matter, unless the Member is a Panel Head. I requested Mr Borg inform me as to his experience with such a proposition in the Commission. Along with one other matter, he cited the decision of DP Asbury in CFMEU v North Goonyella Coal Mines Pty Ltd [2014] FWC 6731to purportedly recuse herself from further arbitrating the matter.

[89] The Deputy President said that following at [2] of the decision:

[2] I held a number of conciliation conferences between November 2013 and May 2014. The matter was not resolved and the CFMEU indicated that it sought to have the dispute referred to arbitration. I indicated on a number of occasions that I would not arbitrate the substantive application, due to the fact that I was extensively involved in conciliating it and in attempting to resolve a related application made by the CFMEU to the Federal Court.

[90] I asked Mr Borg if the Deputy President had decided of her own volition that she should not determine the substantive matter before her, and not because of an application made that she should not arbitrate the substantive matter. The following was discussed: 16

COMMISSIONER:  So she concluded that because she felt that she had dealt with it so extensively.

MR BORG:  In her judgment, yes.  It wasn't what her views were however.  It was what her views of what a reasonable person might apprehend happened.

COMMISSIONER:  You don't - did she say that or she simply said - - -

MR BORG:  She doesn't need to.  She - - -

COMMISSIONER:  She didn't say that.  She just said that she formed that view herself that she had been extensively involved in conciliating it.

MR BORG:  I think her expression - - -

COMMISSIONER:  She did not - yes?

MR BORG:  It's at paragraph 39, and again that matter was not in issue in these proceedings so which test she applied or did not apply is not actually articulated.  But it should be understood that that was what was weighing on her mind and - - -

[91] Paragraph 39 of the decision is reproduced:

“[39] As I stated to the parties at the outset of this hearing, I was “up to my eyeballs” in conciliating the dispute that the CFMEU now seeks to be arbitrated. The conciliation conference that the CFMEU submits provides a basis for me to disqualify myself was lengthy and conducted in an atmosphere of urgency late on a Friday evening as a last attempt to resolve a dispute that was to be dealt with by the Federal Court of Australia on the following Monday. The conciliation conference involved offers and counter offers of settlement being canvassed and I attempted at some length (albeit unsuccessfully) to broker an agreement between the parties that would have resolved the proceedings in the Federal Court and the issues that are in dispute as part of the substantive application. That is the basis upon which I made it clear that I would not arbitrate the substantive application.”

[92] A further discussion on the reasons why the Deputy President referred the substantive matter to the industry Panel Head is below: 17

COMMISSIONER:  And in this particular case it appears as though the Deputy President has determined for herself that - she says:

I decided that I would not arbitrate the substantive application.

MR BORG:  And the reason is that she attributes her concern to the fact that she, in her words, "was up to my eyeballs in conciliating the dispute".

COMMISSIONER:  That's sometimes how we might feel about matters.

MR BORG:  Well, I'm not sure that she was making any comment about her work ethic.

COMMISSIONER:  No.  No, not ethic at all.

MR BORG:  She was making rather a comment about the propriety of first conciliating the matter.

COMMISSIONER:  Yes.

MR BORG:  And then arbitrating the matter.

COMMISSIONER:  Yes, it was her decision to do so.

MR BORG:  Yes.  But informed not by her subjective views about things but rather by what would be a test that is informed by the fair minded lay observer and what they might think about what she might have done.

COMMISSIONER:  Has she said that?

MR BORG:  She doesn't even say that "I simply referred the matter because we want to avoid any dispute about this".  What she says is "The conciliation conference" - sorry, if I could just have a moment to re-read the paragraph.  Of course she makes reference to the - well, if I could put it this way, Commissioner.  It's sort of the other side of the coin as it were.  In deciding whether or not to recuse herself of the interlocutory matter she applies the test.  The implication of that is that in the substantive matter she did the same thing.

[93] The conversation continued: 18

MR BORG:  And that she was making her decision about, and she made her decision on the basis of the same test for the apprehension of bias and from that the other side of the coin is that where she's previously done that one could only conclude that that was what was applied in the first - the matter wasn't tested.  She'd already decided - - -

COMMISSIONER:  Well, you can't conclude that.  She decided that, of her own volition.

Prejudgment

[94] It was submitted that the expression of an opinion by a Commissioner in relation to a matter before them will not automatically constitute a basis for a reasonable apprehension of bias. 19 However, the circumstances surrounding the expression of such an opinion may allude to an apprehension of bias, particularly where it gives rise to the apprehension of a prejudgment.

[95] During the hearing the CFMMEU submitted that the context around what was said by me at the conference of 14 December 2018 was not material. 20

Watpac submissions

[96] Watpac was invited, but not required to file submissions relevant to the recusal application. Watpac submitted that it was not seeking to adopt a position, but to assist the Commission reach a decision by identifying the relevant legal principles in relation to the contentions made by the CFMMEU.

Inaccurate recollection of the Commissioner’s remarks

[97] Watpac submitted that the CFMMEU had inaccurately recollected the alleged remarks made by me during the conciliation conference. Watpac suggested that the inaccuracy is not intentional.

[98] It was submitted by Watpac that I had sought submissions from Mr Borg relevant to whether or not it was a reasonable and lawful direction for Watpac to direct its employees to sign in with swipe cards through the pedestrian gates at the Project. Instead of Mr Borg addressing that issue, he referred to the notice issued by the Inspector which related to emergency plans and not to the swipe pass system, and also a vote taken by the Project safety committee. It is suggested that in the context of Mr Borg not addressing the question of reasonableness and lawfulness of the direction issued by Watpac, I then ‘suggested that the issues raised by Mr Borg were a ‘smokebomb’.

[99] In relation to the notice issued by the Inspector, in the written submissions of Watpac, it suggested that it was submitted by Watpac during the conference, and not by me that the notice was not relevant.

Project site visit

[100] Watpac stated that where the CFMMEU asserts that I have prejudged matters in dispute, I declined to make a recommendation sought by Watpac, and instead conducted a site visit. During the site visit safety was discussed, and the CFMMEU provided with an opportunity to raise additional safety concerns.

[101] Watpac submitted that immediately prior to the conclusion of the site visit, I confirmed with Watpac that it continued to press for a recommendation prior to arbitration. Watpac notes that the Commission requested Watpac notify chambers of the rectification work being performed to address egress issues raised by Mr Borg on behalf of the CFMMEU.

Watpac authorities

[102] Watpac stated that the test to be applied when determining whether a judge is disqualified for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question she is required to decide.

[103] It was submitted that an allegation of apprehended bias must be ‘firmly established’. 21 A judge should not disqualify herself on the ground of bias or reasonable apprehension of bias unless ‘substantial grounds’ are established.22

[104] Further, disqualification for bias is not triggered just by a party’s personal apprehension of impartiality, as outlined by the Full Federal Court in SZUEP v Minister for Immigration and Border Protection: 23

“a claim of apprehended bias is to be judged by reference to the apprehension of the fair-minded informed lay observer. The litigant is not that person. The test is an objective one: see Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12], as approved in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [32]. The fair-minded informed lay observer is not to be confused with the litigant or party: Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 at [2].”

[105] Watpac referred to the High Court authority in Livesey v New South Wales 24 where it endorsed the view expressed by Justice Mason regarding likely procedural abuses that would occur if recusals were automatic upon allegations of apprehended bias. The Court said:

“[I]t would be an abdication of judicial function and an encouragement of

procedural abuse for a judge to adopt the approach that he should

automatically disqualify himself whenever he was requested by one party to do

so on the grounds of a possible appearance of pre-judgment or bias…” 25

[106] Relevant to the hypothetical fair-minded lay observer, in Isbester v Knox City Council 26 it was said:

“……The hypothetical fair-minded observer ... is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”. 27

[107] Watpac submitted that the fair-minded lay observer is assumed:

(a) Does not make ‘snap judgments’; 28

(b) Is not ‘unduly sensitive or suspicious’; 29

(c) Would recognise that some judges are naturally ‘more forthright’ than others; 30

(d) Will know that a judge is capable of departing from earlier expressed opinions; 31 and

(e) Can put things out of their mind. 32

[108] Watpac submitted that it is important to consider the relevant authorities as they relate to exchanges during hearings and allegations of apprehended bias. In GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited 33, the Full Federal Court said:

“First, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.”

[109] It was submitted that it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial, or in this case, proceedings. In Galea v Galea 34, Kirby A-CJ (as his Honour then was) said:

“A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.”

[110] In AB v Director of Public Prosecutions 35, despite the judge declaring that the claims

of AB were ‘fanciful and ridiculous’, the New South Wales Court of appeal held that there was no basis for a claim of apprehended bias. The Court said the following:

“…..Apprehended bias must be firmly established. It is insufficient if a reasonable bystander merely had a vague sense of unease or disquiet.27 Further, the fair minded lay observer is taken to be reasonable and is not entitled to make snap judgments. Nor is the fair minded lay observer to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge. Rather, the fair minded lay observer will have regard to the fact that the person being observed is a professional judge, whose training, tradition and oath or affirmation require the judge to discard as irrelevant the immaterial and the prejudicial.”

[111] In Hinton v Alpha Westmead Private Hospital 36, the Full Court of the Federal Court

held that a claim for apprehended bias was substantiated. The challenge to the primary judge was successful as a consequence of statements in the primary hearing and reasons that the appellant’s claim was a ‘bag of chips’, a ‘try on’, a ‘baseless trifle’ and ‘doomed’, and that the claim depended on a ‘rubbish’ proposition and was an ‘obvious abuse of process’.

[112] Watpac submitted that the CFMMEU’s submissions fail to take account of subsequent conduct, and given the site visit following the conference where the alleged utterances were made, it demonstrates that the Commission had not formed a final view. In Johnson v Johnson 37 the High Court held that a preliminary impression may be altered by later conduct:38

“There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. 39 No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”

[113] Watpac submitted that circumstances include what was done by the judge subsequently, and may be sufficient to eradicate any apprehension of bias. The recent FWC Full Bench decision in CFMMEU 40 referred to the following passage by Dawson J in Re JRL; Ex parte CJL:41

“It is an understandable tendency to assume the existence of a reasonable basis for supposing bias where there is, as in this case, an apparent departure from the proper standards of judicial behaviour. But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553554; Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at p 262; Reg. v. Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 5051.

Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures. It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage. See Ridge v Baldwin [1963] UKHL 2; (1964) AC 40, at pp99, 101, 125, 129.”

[114] It was submitted that any alleged impediments to the CFMMEU putting their case at the conference was remedied during the site visit where Mr Borg was given a number of opportunities to ventilate all of the safety concerns held by the CFMMEU relevant to the swipe card system

CFMMEU reply

[115] During the hearing Mr Borg submitted relevant to subsequent conduct that it is necessary to take it into account. 42 He stated, however, that the subsequent conduct was not sufficient to overcome the issue.43

[116] Mr Borg stated that the feared deviation from the course of deciding the case on its merits was that I won’t have proper regard to safety concerns raised by the CFMMEU in determining the lawfulness or otherwise of the direction by Watpac for employees to use the swipe passes. 44

[117] Relevant to the authority in Hilton, Mr Borg stated that the use of the word ‘smokebomb’ is not as far an expression as ‘bag of chips’, but he queried whether or not it is ‘equivalent’. He submitted that the effect of what I said during the conference was, “The safety issues raised by you are yours, it’s not legitimately raised by the safety committee, it’s a smoke bomb, it’s a ruse by you, a device by you to avoid this matter and isn’t genuine, and therefore the Commission has reached a view about it, and now tell me about what you think about the rest of the matter.”

Consideration

[118] I 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. 45 Without detracting from that summary, the following is of relevance to this matter:

(a) 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. 

(b) 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 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.

(c)The test is an objective one and is based upon the need for public confidence in the administration of justice. The High Court also observed in Johnson v Johnson 46 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.” 

(d) 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. 

(e) 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. 

(f) 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. 

(g) 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. 

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

(i) 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. 

Should a Member arbitrate a matter after having conciliated the matter?

[119] The CFMMEU submitted that Members who conciliate a matter should not arbitrate the matter. I have had regard to the Commission’s Fair Hearings practice note, my experience, and the stated experience the CFMMEU took me to.

[120] The practice note is clear that there is no general rule that a Member should not arbitrate a matter if the Member has conciliated the matter. It requires an application to be made by a party for the Member to consider disqualifying themselves. I do not accept that there is any such general rule applying in present times with matters before the Commission.

[121] Further, I do not recall any circumstance where I have decided against arbitrating a matter after I had conciliated the matter in the absence of a recusal application. If ever that situation arose, I expect that I would inform the parties of my preliminary view of having the matter reallocated at my initiative; and if I then decided to do so, I would refer the matter to the relevant Panel Head for reallocation.

[122] Mr Borg cited two experiences where a Member of the Commission had decided against arbitrating a matter after having conciliated the matter. I do not consider that small number of matters to be persuasive, and in any event, each matter will be determined by the particular Member based on their experiences and involvement in the matter. Clearly, in the case of CFMEU v North Goonyella Coal Mines Pty Ltd, the Deputy President determined that she would not arbitrate the matter on her own volition and because of her extensive conciliation of the matter.

[123] I am satisfied that the Deputy President determined that she no longer wished to arbitrate the matter before any application was made by the CFMMEU requesting her to recuse herself. At [2] of the decision she indicated that she informed the parties on a number of occasions that she would not arbitrate the matter. She repeated that at the hearing before her. At [42] of the decision the following was said:

[42] I do not accept that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the question of whether the substantive application should be dismissed or whether the Commission has or should exercise discretion to refrain from hearing it.

[124] I conclude that the Deputy President determined for herself that she did not wish to arbitrate the matter, and she declined the recusal application.

[125] In my view it remains available to a Member to decide against arbitrating a matter if the Member so wishes, having regard to their involvement in the conciliation of the matter. Of course, such decision is subject to the relevant Panel Head’s requirements and the consideration of allocation of work to other Members.

[126] I do not accept that I should seek reallocation of the matter for arbitration on the basis that I have been conciliating the matter, or that there is any general practice in the Commission of doing so.

What was said by me at the conference?

[127] The first limb of the test in Ebner is to identify what it is that might lead a decision maker to decide the particular questions before her other than on the merits.

[128] My best recollection of what I said well into the conference on 14 December 2018 is:

“You’ve told me about the safety concerns. But the substantive issue in this matter that the applicant wants determined is whether it can enforce the swipe cards being used. Isn’t the safety issues you raise a smokebomb against the substantive matter?”

[129] The written submissions made by Watpac before the hearing note that I ‘suggested’ that the issues raised by Mr Borg were a smokebomb. I take that to mean that prior to the hearing, the legal representatives for Watpac who were present at the conference considered that I had raised the matter in the form of a question, as it was a ‘suggestion’.

[130] Mr Giles’ notes are the only notes produced, and state the following:

CH [Commissioner Hunt]: Need to have as much information before me as possible. Think you’re bringing a smoke bomb in. Not dealing with the swipe card issue at all.

[131] During the hearing Mr Borg did not provide his best recollection of the exact words used by me. He later submitted that the effect of what I said during the conference was, “The safety issues raised by you are yours, it’s not legitimately raised by the safety committee, it’s a smoke bomb, it’s a ruse by you, a device by you to avoid this matter and isn’t genuine, and therefore the Commission has reached a view about it, and now tell me about what you think about the rest of the matter.”

[132] Further, he submitted that I had [effectively] concluded, without using these words, "We have dealt with this issue, it's a smoke bomb, I'm not entertaining it, we are going on to the other aspects of the decision".

[133] I consider my recollection of the words used by me during the conference, together with Mr Giles’ notes to be the closest accounts of what was actually said by me. My recollection accords closely with the shorthand notes of Mr Giles, although I note that Mr Giles’ notes do not pose the word in a question, and Mr Giles’ notes reflect that I said something to the effect that I need to have as much information before me as possible. It is very likely that I said something to that effect because I was being asked to make a recommendation of the Commission.

[134] Where Mr Borg initially agreed, early in the hearing that I had used the word ‘smokebomb’ in a question, he then sought to argue against that position later in the hearing. I do not accept the later submissions, and I conclude that Mr Borg’s initial reaction to me stating that I know that I used the words as a question was not influenced.

[135] As to the suggestion that when shown the improvement notice I said that it was ‘irrelevant’, it is important to note that:

(a) Mr Borg did not make any suggestion during the conference that I had done so;

(b) The CFMMEU’s recusal application of 20 December 2018 did not include such a statement;

(c) The improvement notice was discussed during the site visit on 21 December 2018;

(d) The first time it was raised by the CFMMEU was in submissions made on 18 January 2019;

(e) Watpac representatives submit that it was Watpac, and not me who suggested during the conference that the improvement notice was irrelevant;

(f) Mr Borg is uncertain if he thinks I referred to the notice as ‘irrelevant’ or if I used the word ‘irrelevance’;

(g) Mr Borg did not rely on any notes to support his recollection that I used a word or derivative of ‘irrelevant’.

[136] I do not accept that I said that the notice was irrelevant, or any derivative of the word.

[137] I have had further regard to the recollection of Watpac representatives who suggested that it was I who raised the improvement notice during the meeting of 21 December 2018 in the demountable. Mr Borg said at approximately 2:53:30 (nearly three hours into the hearing) that he could not recall who raised the issue of the improvement notice. Mr Borg said the following:

“I just don't, I don't have - yes, that's the extent to which I recall something, perhaps.  That rings a bell, I have got to say, it's not that - but I don't recall anything further, so I don't concede to anything further.”

[138] At approximately 3:51:32 into the recording of the hearing, that is, 48 minutes later, Mr Borg said:

“I recall that that was raised by me, yes, certainly, definitely, yes.”

[139] I am not persuaded to accept the accuracy of Mr Borg’s recollection on this issue.

[140] It is asserted that I attributed matters to the CFMMEU as its concerns when I should have properly asserted them as issues raised by members. Mr Borg suggested that I had said, when speaking to him said, "That's your concern". Mr Blackmore assisted by suggesting that I had either said, “That’s the CFMMEU’s concerns”, or that I said, “That’s your concerns”.

[141] It was Mr Borg and Mr Blackmore who suggested that there was an inference that could be made when I said either “That’s your concerns” or “That’s the CFMMEU’s concerns”.

[142] What is clear is that it is submitted that I said either “That’s your concerns” or “That’s the CFMMEU’s concerns”. This is not contested by Watpac and I agree I interchangeably used those expressions.

[143] Relevant to my determination as to what was said by me at the conference on 14 December 2018, where I have disagreed with the CFMMEU’s contentions or recollection, I do not suggest that its contention or recollection, or that of Mr Borg’s is untruthful or misleading. With the passing of time, all parties, including the Commission have had to do their best to recollect what was said.

Context

[144] Having determined that I said words to the effect at [128], and I said “That’s your concerns” or “That’s the CFMMEU’s concerns”, but I did not say that the notice is irrelevant, I do consider it appropriate to consider the context of the conversation.

[145] Watpac had requested a recommendation be issued. I informed the parties to the effect that I would not consider issuing a recommendation unless I had all relevant information before me. Mr Borg repeatedly stated the safety concerns the CFMMEU held, on behalf of its members. He informed the Commission relevant to the safety concerns the safety committee held. I encouraged conversation relevant to Watpac’s concerns over what it wanted; the swipe cards to be used by employees, and whether it was reasonable. Mr Borg then repeated the earlier submissions relevant to safety concerns without providing any additional information. I asked if the safety issues were raised as a smokebomb against the substantive matter.

[146] Whilst Mr Borg stated his concern at the time over the use of the word, the conference continued for some further time and I decided against issuing a recommendation. I did so because of the submissions made by Mr Borg and the statements that he had visited the site and held a first-hand account that there was not, as recently as his visit, suitable emergency egress.

[147] If I had, indeed, considered that there was no merit to the submissions made by the CFMMEU, it is likely a recommendation would have been issued.

[148] Where it is suggested that inferences can be drawn from having said that these are the CFMMEU’s issues, as opposed to the employees who are members of the CFMMEU on site, I consider it to be a vague and intangible proposition. It was not addressed at the conference, nor in the recusal application of 20 December 2018. In the written submissions of 18 January 2019 it was still unclear what the basis of the application was. Mr Blackmore had to assist at the hearing so that the Commission could further understand what it was I was supposed to have said.

[149] No such inferences were made, and I simply spoke to and addressed the parties as ‘you’, ‘your’, ‘Watpac’, and ‘CFMMEU’. This is an orthodox way of addressing parties at conference and at hearing. I do not consider that there is any possibility (real and not remote) that a fair-minded lay observer would think that I was addressing the CFMMEU and those it represents in a way that is unusual or unorthodox.

Further conduct

[150] It was submitted by the CFMMEU that whilst what I did next could be considered in light of the request to recuse myself, nothing I did defeated the utterances made by me at the conference. I respectfully disagree, and consider that my attendance at the site visit, without knowing an application had been made for me to recuse myself, and my safety-related inquiries at the site visit demonstrate that I had a genuine interest in the safety concerns raised by the CFMMEU.

[151] If there had been an apparent or actual departure from the proper standards of judicial behaviour in using the word ‘smokebomb’, I have regard to the decision in Re JRL; Ex parte CJL, and consider it appropriate in framing what occurred following the conference.

[152] I consider that a fair-minded lay observer, when it is assumed, pursuant to Watpac’s submissions, that they will not make snap judgments, is not unduly sensitive or suspicious, would recognise that some judges are naturally more forthright than others, will know that a judge is capable of departing from earlier expressed opinions, and can put things out of their mind, would consider the site visit to be very helpful to the parties, and particularly to the CFMMEU in observing the safety concerns raised by the union.

[153] I do not accept the CFMMEU’s submissions that a fair-minded lay observer would not know why the Commission decided to hold a site visit. It was submitted by the CFMMEU that the visit was to resolve the question as to whether the third gate had actually been installed, and that it was to assist the Commission in understanding the layout of the site in order to make a recommendation.

[154] I do not accept the submissions that the reasons CFMMEU members were holding up signs and chanting things such as “Fair Work, stay out of safety” was based on a jurisdictional objection to the Commission determining the dispute application.

[155] The CFMMEU, its organisers and members knew that the Commission was making a site visit. Banners were drawn, including one that read, “FAIR WORK COMMISSION, STAY OUT OF SAFETY!”

[156] It makes no sense at all for the CFMMEU at conference to spend the bulk of its time making submissions about safety; for the Commission to, on the basis of those submissions then decide against issuing a recommendation; and then when the Commission attends the site to understand such concerns raised by the CFMMEU, then be informed that the Commission should ‘stay out of safety’.

When the recusal application was going to be heard

[157] It is my view that the correspondence of the CFMMEU on 14 January 2019 demonstrated that the CFMMEU wished to have the jurisdictional objections determined, and only if the jurisdictional objections were dismissed, would the recusal application be required to determine.

[158] On the CFMMEU’s reasoning, I would have had to refer the jurisdictional matter to the relevant Panel Head for reallocation to a Member. Only if that Member then heard the jurisdictional objection and dismissed the jurisdictional objection and then the substantive matter was then somehow reallocated to me, would the recusal application then be necessary.

[159] I do not accept that the CFMMEU was under any misunderstanding that I would be the presiding Member to determine the jurisdictional issue.

Conclusion

[160] In some circumstances, participation in a conciliation conference, and then arbitration of the matter by the same Member may give rise to relevant concerns of apprehended bias, but not necessarily so. Whether concerns of apprehended bias arise will depend upon the nature of the conciliation process and statements made by the Commission in the course of those processes.

[161] In this case, the manner in which the conciliation was conducted, the context of the statement made by me, and the ongoing conciliation and consideration of a recommendation does not support any such concerns. There is no basis that a fair-minded observer would form the view that I had a fixed view of the jurisdictional or substantive issue to which it may be expected that I would adhere, regardless of the evidence or the submissions made by the CFMMEU.

[162] There can be no basis for concern that the feared deviation from the course of deciding the case on the merits is that I won’t have proper regard to safety concerns raised by the CFMMEU in determining the lawfulness or otherwise of the direction by Watpac for employees to use the swipe passes.

[163] The factors leading to that conclusion include:

(a) The word “smokebomb” was used as a question by the Commission to elicit redirection of submissions as the Commission had already heard substantive submissions on safety concerns;

(b) Against the wishes of Watpac, no recommendation was made by the Commission;

(c) At the Commission’s initiative a site visit was organised;

(d) The CFMMEU, its organisers and members present knew that the Commission was in attendance relevant to safety concerns of the CFMMEU and its members;

(e) Safety concerns were raised by the Commission during the site visit;

(f) No recommendation has been issued following the site visit as the Commission has not been informed of the progress of the third gate or satisfied as to its effective use as an alternative point of egress;

(g) Relevant changes have been made to the questions for arbitration, including framing the substantive issues around safety and privacy concerns.

[164] There is 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 questions that the Commission is required to decide.

[165] I determine that it is not necessary or appropriate to recuse myself from continuing to deal with the application.

Future conduct of the application

[166] Directions have been issued and the matter, including the jurisdictional objections will proceed before me.

COMMISSIONER

Appearances:

Spence T, of Counsel, instructed by DWF Australia, for the Applicant;

Borg A, Senior Industrial Advocate, Construction, Forestry, Maritime, Mining and Energy Union, for the Respondent.

Hearing details:

Brisbane, 23 January 2019

Final written submissions:

Submissions for the Applicant, 22 January 2019

Submissions for the Respondent, 18 January 2019

Printed by authority of the Commonwealth Government Printer

<PR704094>

 1   Fair Work Commission, ‘About hearings and conferences’, < , 28 June 2016.

 2   PN677.

 3   PN417.

 4   PN423.

 5   PN282.

 6   PN312.

 7   PN700.

 8   PN782.

 9   PN871.

 10   PN798.

 11   PN1102.

 12   Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]; Morris J, ‘Apprehension of Bias’ (2006) (A paper delivered at the Australasian Conference of Planning and Environment Courts and Tribunals, on 14 September 2006, at King Fisher Bay, Fraser Island, Queensland).

 13   Isbester v Knox City Council (2015) 89 ALJR 609, 619.

 14   Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293-294.

 15   Barakat v Goritsas (No 2) [2012] NSWCA 36.

 16 P189.

 17   PN213.

 18   PN233.

 19   Kirby v Centro Properties Limited (No 2) (2011) 202 FCR 439.

 20   PN1191.

 21   R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546,

533–554 per curiam; R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 262 per Barwick CJ, Gibbs,

Stephen and Mason JJ.

 22   Beinstein v Beinstein (2003) 195 ALR 225, [36].

 23 [2017] FCAFC 94, [12].

 24 (1983) 151 CLR 288.

 25 (1983) 151 CLR 288, 294 (Mason, Murphy, Brennan, Deane and Dawson JJ).

 26 (2015) 89 ALJR 609.

 27   Ibid, [23] (Kiefel, Bell, Keane and Nettle JJ).

 28   AB v DPP (NSW) [2016] NSWCA 73, [21].

 29   Johnson v Johnson (2000) 201 CLR 488, [53] (Kirby J).

 30   Stone v Moore (2015) 122 SASR 54, [51] - [54].

 31   GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150, [38].

 32   Zhai v Luo [2015] FCAFC 144, [38].

 33 [2013] FCAFC 150.

 34 (1990) 19 NSWLR 263, 279.

 35 [2016] NSWCA 73.

 36 [2016] FCAFC 107.

 37 (2000) 201 CLR 488.

 38   Ibid, [14].

 39   Re JRL; Ex parte CJL (1986) 161 CLR 342, 372 per Dawson J; Vakauta v Kelly (1989) 167 CLR 568, 572 per Brennan, Deane and Gaudron JJ, 577 per Dawson J.

 40   [2019] FWCFB 214, [21].

 41 (1986) 161 CLR 342.

 42   PN1014.

 43   PN1018.

 44   PN1069.

 45   [2014] FWC 3117.

 46 (2000) 201 CLR 488.