AG2014/5121, Transcript of Proceedings [2014] FWCTrans 267 (23 May 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049658-1

COMMISSIONER WILSON

AG2014/5121

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Metropolitan Fire and Emergency Services Board
(AG2014/5121)


Melbourne

4.16PM, TUESDAY, 6 MAY 2014

Continued from 08/04/2014

PN122

THE COMMISSIONER: Good afternoon and thank you for attending. If I can start with appearances please.

PN123

MR F. PARRY SC: If the commission pleases I seek permission to appear with my learned friend Mr Dalton for the applicant, the MFB.

PN124

THE COMMISSIONER: Thank you, Mr Parry.

PN125

MR M. HARDING: If the commission pleases I seek permission to appear on behalf of the United Firefighters Union and to address you, sir, with permission.

PN126

THE COMMISSIONER: Thank you, Mr Harding. In the circumstances, gentlemen, I’m prepared to grant permission for representation, so if we can commence with you, Mr Parry, it’s your application.

PN127

MR PARRY: If the tribunal pleases. There is an application that we would seek to make for the commission as constituted to recuse himself from the further hearing of this matter. We’ve set out much of the background of this in writing, but we would want to make clear at the start that the MFB does not allege or suggest any actual bias that has occurred.

PN128

The basis for the application really is a forward, one that looks forward, that is that some of the evidence that we will be calling in the case will involve reference to events in which the commission as constituted has been a participant such as in conciliation and in formal conferences. The commission would appreciate that there is to be extensive evidence filed in this matter and some of that evidence will go to certain matters that we say arise from section 229 and go to the conduct of the UFU. The commissioner as constituted will in those circumstances have to make findings as to or may have to make findings as to events the commission has observed.

PN129

The position of the parties with regard to this matter has been set out in correspondence. I understand that with regard to this particular application the matters that have been or should be before the commission are a letter from my instructing solicitors dated 24 April 2014 and that includes the general nature of the conduct and the sort of evidence and sets out that there are instructions to request you excuse yourself from the matter. There is a letter from Ryan Carlisle, solicitors for UFU dated 28 April 2014, which indicates that they oppose that application. There is an email I think from the commission dated 29 April 2014 which goes to one aspect of the matters raised by my instructing solicitors which I don’t intend to deal with further.

PN130

THE COMMISSIONER: Sure.

PN131

MR PARRY: There is then a letter dated 30 April 2014 which goes into, what I might respectfully say is, a bit more detail as to the application and there is also an email largely to similar effect dated 1 May 2014.

PN132

THE COMMISSIONER: I’ll just stop you there, Mr Parry. That email of 1 May is that from your instructors or - - -

PN133

MR PARRY: There is an email from the UFU dated 1 May 2014 requesting that there be an application or a hearing fixed for this application. I’ve got an email stream here, Commissioner.

PN134

THE COMMISSIONER: Yes, I have that as well. I just wanted to check that I have the correct document. Thank you.

PN135

MR PARRY: Yes.

PN136

THE COMMISSIONER: And the part that you rely upon is the part from the UFU? Sorry when I say “rely” the part you’re referring to is the part from the UFU?

PN137

MR PARRY: Yes, Commissioner.

PN138

THE COMMISSIONER: Thank you.

PN139

MR PARRY: Perhaps just going to the matter in more detail there are a couple of matters or documents I would want to hand up, one is the practice note of the Fair Work Commission printed – sorry it’s practice note 2/2013.

PN140

THE COMMISSIONER: Do I formally need to receive that or is that a matter of record?

PN141

MR PARRY: I don’t believe so, Commissioner.

PN142

THE COMMISSIONER: Thank you.

PN143

MR PARRY: I’m not going to, unless the commission wants, formally tender these documents. This is an application which sits alone, we don’t need to add in more exhibits than we probably need to at this early stage.

PN144

THE COMMISSIONER: I’m grateful for that, I’m happy with that process. Mr Harding, are you happy with that as well?

PN145

MR HARDING: Yes. I don’t think it needs to be tendered as the commission pleases.

PN146

THE COMMISSIONER: Sure. Thank you.

PN147

MR PARRY: There are a range of authorities in this particular area and the commissioner’s own practice note at paragraphs 24 and onwards deal with impartiality and apprehended bias and the test is or:

PN148

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.

PN149

This is a slightly unusual matter because those circumstances have not yet arisen because that evidence is not before you, but ultimately it’s a matter of assessment and judgment based on the circumstances.

PN150

To return to the practice note it refers to in paragraph 26:

PN151

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.

PN152

We rely on the next part:

PN153

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.

PN154

One of the authorities therein referred to is Livesey v New South Wales Bar Association. If I could hand up a copy of that to your Honour.

PN155

THE COMMISSIONER: Thank you.

PN156

MR PARRY: I hand up Livesey for two reasons, Commissioner, the first is to set out how courts deal with matters such as this and the situation of Wendy Bacon was a curious one. There were a set of proceedings and an issue arose as to whether two judges should be sitting on the bench and some of the history is set out unusually in the preliminary parts of it. On page 289 the commissioner will see, about point 3, without going into the full details of it:

PN157

The matter came before the Court of Appeal on several occasions for interlocutory purposes. At least once, Reynolds JA, sat without objection. The hearing commenced before the Court of Appeal constituted by Moffitt P, Hope JA and Reynolds JA. Moffitt P stated from the Bench that senior counsel for Livesey had spoken to him in his chambers that morning in the presence of senior counsel for the Bar Association and had raised the question of whether the President and Reynolds JA should sit in the case because of the evidence that had been given and views they had expressed about the evidence and other matters in the other case.

PN158

The commission will note this is dealt with in a bit more detail in the judgment at page 292 where the learned President made a statement about point 3 and he set out what had occurred and this, we would say, is the normal practice in these things.

PN159

Mr Priestley, of Queens Counsel, counsel for the plaintiff, in the company of Mr Callaway, senior counsel for the Bar Association of New South Wales, saw me in chambers … and raised the question whether Mr Justice Reynolds and I should sit in this case by reason of evidence given and views expressed by us severally in relation to such evidence in the application of Wendy Bacon, heard by a court of which we were members last year. Mr Priestley admitted we should not sit. We do not think the matter is one for formal submission or debate.

PN160

They went on and then, relevantly for present purposes, near the bottom of the page:

PN161

Mr Priestley QC who appeared for the appellant has informed this Court that, in the discussion which took place in the learned President’s chambers, express reference was made to the possibility that Ms Bacon might be called as a witness in the proceedings against the appellant in that there was mention of a possibility that the Court of Appeal itself might call her to give evidence.

PN162

The case went on and ultimately Ms Bacon was called as a witness on behalf of the appellant, so our position is that whilst there needs to be an application made we need to, as responsible practitioners in this area, bring to your attention a matter that we apprehend could cause embarrassment and concern to the commission further down the track.

PN163

The law with regard to this is also set out in Livesey and the general legal principle is at the bottom of page 29 where it is said that - it’s R v Watson:

PN164

That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

PN165

The court also referred to, I think it’s at about point 4:

PN166

If it a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.

PN167

Those are the broad principles and that’s the practice note with regard to the commission. Of course this commission can advise itself, inform itself as it sees fit with regard to these matters. We have set out the detail of our apprehensions and concerns in our correspondence of 30 April 2014. We indicate in paragraph 6 thereof that:

PN168

The MFB proposes to lead evidence as to what was said and the conduct of the parties during conferences conducted at the commission under section 240 of the Fair Work Act.

PN169

There are certain dates and conferences chaired by the commission and also the process of keeping the commission advised, as referred to in paragraph 10, into a large number of letters and emails over the course of six months. You, Commissioner, have witnessed matters that may well be matters that we would seek to put in evidence and indeed intend to at this time. In paragraph 13 we refer to evidence in relation to the introduction of GPS and appliances and the deployment of MK5 appliances in the first respondent program.

PN170

The concern we have, which is set out in the correspondence, and I’m assuming the commission has read that, so I don’t have to take - - -

PN171

THE COMMISSIONER: That’s a valid assumption.

PN172

MR PARRY: Yes.

PN173

THE COMMISSIONER: I have read it.

PN174

MR PARRY: I’m sorry?

PN175

THE COMMISSIONER: I have read it, I’m sorry.

PN176

MR PARRY: Sorry I thought you say it was an invalid assumption and I - - -

PN177

THE COMMISSIONER: I apologise, I’m mumbling.

PN178

MR PARRY: The concern is that the commission ought not sit here and determine applications which involve conduct of which they are a witness. It is a short point, I don’t want to labour it. It’s not one we joyfully take standing up in this tribunal and making the application. We take the position because we are concerned that the commission may well be, given what is likely to occur, placed in a position where assessments have to be made which may raise the apprehension that we’ve referred to. We take the position, the normal and long accepted process, that if a party has a concern that a member might be placed in such a position then we have an obligation to raise that and bring that to the attention of the tribunal member.

PN179

Again we stress that the circumstances in this present matter are unusual. It is and there can be no suggestion that the circumstances mean that the commission as constituted indeed is likely to decide the matter one way or the other. Often in prejudice cases a party stands up and says, “Well, that’s happened, you’re going to go that way.” We can’t even say that because our concern is that the evidence is there and the commission may well have views on what occurred which in some cases might be more in the favour of the MFB and in other cases might be more in the favour of the UFU, but it’s the apprehension of placing the commission in that position and to avoid potential embarrassment and the real risk of the proceedings being derailed down the track when the evidence is to be heard and it’s for those reasons that we make the application. Unless there’s anything the commission would want further of me that’s our position.

PN180

THE COMMISSIONER: Mr Parry, there’s probably just two questions I have. The first is in relation to that paragraph you’ve just been referring to, paragraph 13 of the letter of 30 April. I’m sorry I’m incorrect, it’s paragraph 12. The last sentence in paragraph 12 says, “These events are material and you would be a material witness to them.” I have to admit to seeing that a little bit ambiguously. Are you saying in that that I would be expected to be called as a witness or are you saying instead that I merely have to, if I were to proceed, make a decision about things I might have witnessed?

PN181

MR PARRY: We would not be calling you as a witness, Commissioner.

PN182

THE COMMISSIONER: For that I’m grateful.

PN183

MR PARRY: I accept there is an ambiguity with regard to that. We would not be calling you as a witness with regard to those matters, but rather the later categorisation of how the commission puts it.

PN184

THE COMMISSIONER: Thank you. Then in respect of paragraph 19 of the same letter your client is talking about the implications of the practice note and there’s a reference to the former legislation in paragraph 19, in particular to section 105 of the Workplace Relations Act 1996, and the footnote indicates that that provision was repealed as part of the Work Choices amendments in 2005. The question which I have for you is in respect, I suppose, of both the legislative amendment first of all, and I’ll come to that in a second, and then the second part of the question is in respect to the practice note.

PN185

In respect of the legislation is it not the case that having amended the legislation with the Work Choices legislation in 2005 those issues cease to be a material consideration for the commission from that point on? Then in respect of the practice note is not the high point of the practice note effectively a lay analysis of what the law might say in any event? It’s not an attempt as I read it to somehow go beyond that.

PN186

MR PARRY: I’ll answer the first one last. It is only attempting a summary of the current law. It doesn’t have any status and I don’t suggest it has anything above or beyond the cases in this area. The other proposition I do take issue with. Section 105 drew a distinction between conciliation and arbitration and if the matter could be categorised as conciliation a party to that had a definite and unambiguous right for the member involved in that conciliation not to arbitrate. The removal of section 105 simply takes it back to first principles. If one looks back at the authorities on section 105 the courts often took the approach “is it conciliation”, if it was or if it wasn’t they would look back at first principles and say, “Is there still a bias or ostensible bias issue there?”

PN187

The removal of section 105 doesn’t somehow throw a protection over conciliation conferences. They simply require an assessment in light of all the circumstances and whether a fair-minded member of the public might form certain views as to the involvement of a commissioner in them. We’re not here making the submission that invariably involvement in a conciliation or conference would mean that a member could not arbitrate with regard to matters dealt with therein.

PN188

THE COMMISSIONER: Thank you for that. They were all the questions I had, thank you.

PN189

MR PARRY: If the commission pleases.

PN190

THE COMMISSIONER: Mr Harding.

PN191

MR HARDING: Yes, thank you, Commissioner. Perhaps if at the outset I could hand up some submissions that I devised. Based on the very limited material that’s been put in front of you by the applicant it’s not over reading it, Commissioner, to say there’s very little to go on here. In fact in my submission there isn’t anything to go on that could justify a recusal.

PN192

Mr Parry submitted that this is really something that might arise in the future. It’s like a pre-emptive strike perhaps, you can characterise it in that way, on the basis that there may be something about the case that they present to you that causes you difficulty in exercising the ordinary functions that you perform as a member of this commission. One of which includes dealing with conciliations as part of applications, in the ordinary course of dealing with the industrial matters, that come before you in relation to industrial parties like these who are frequent users of the commission.

PN193

You can see from the outline I start in paragraph 2 with the principles as discussed by the High Court in Ebner’s case. I have a copy of that decision to hand up, Commissioner. I don’t want to take you through it in any great detail beyond what I’ve set out, but by reason of the fact that it is an important contribution in the area I hand it up to assist you.

PN194

THE COMMISSIONER: Thank you.

PN195

MR HARDING: The extract in paragraph 2 tells you what the legal test is. Mr Parry has already taken you to that. I don’t think there’s any controversy between the parties about what that is and then at 3 you’ll see their Honour’s identify how to apply that test and, Commissioner, the key factor here is that the test fixes on what the decision-maker may have done by words or statements or otherwise that may lead the hypothetical person sitting in the back of the court to conclude that you may not decide this matter other than on its legal and factual merits. The applicant hasn’t even told you what that might be, so how would the reasonable hypothetical person sitting in the back of the court even know what it is that might cause you to decide this on its other than its legal and factual merits. There is nothing that they can point to and have pointed to other than a possibility. They've taken you to the case of Livesey but at least in Livesey the judge knew who was going to be called as a witness. It was Ms Baker. You don't even know that. You don't know exactly what evidence they will call other than in a general description of the matter that came before you and how it was conducted. But obviously when you assess evidence you assess that evidence as it comes from the witness or the person who gives that evidence, you know, in a trial in which of course both parties are represented as they will be in this proceeding and whom you can test these issues if they even arise.

PN196

I then identify in paragraph 7 some authorities that have considered the circumstances in which matters come before this commission. Perhaps if I can take you firstly to the decision of The Commonwealth Conciliation and Arbitration Commission and Others v Angliss Group, a very famous case decided in relation to the predecessor commission, which identifies some principles as to how the commission is to address these applications.

PN197

Commissioner, the headnote tells you a bit about the circumstances in which the application arises. It was the National Wage case in 1967 in which certain statements were made that the inference was open that the President speaking on behalf of the whole commission had a preconceived idea of the importance of fixing wages on a non-discriminatory basis and it was suggested by the applicant seeking prerogative relief in the High Court that that was enough to disqualify them from hearing the matter. You'll see at page 552 that the basis of the argument about point 3:

PN198

The applicant in support of the present motion has argued that the quoted passage and the fact the respondent has made the application, the citing of the passage is a reason for making it give rise to a reasonable suspicion that the President and the Deputy President may have already determined it is desirable that men and women performing the same kind of work should be paid at the same rate and that this is a principle of wage fixation.

PN199

Then onto the next page at 553 the court says:

PN200

It is plain that when it is necessary to consider as a question of fairness in relation to the tribunal the whole of the circumstances in the field of inquiry are of importance.

PN201

And a critical point in my submission that addresses the question you raised with Mr Parry about the absence of section 105 and is of broader significance, their Honours say:

PN202

The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the commission does not seek to enforce existing private rights. Amongst other things its function is to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights which is appearing in this application.

PN203

What their Honours are saying plainly, Commissioner, is that you can take into account in assessing the issue the nature of this commission and how it functions and the statutory provisions under which it functions. Then critically at the bottom of page 553 and then on the next page:

PN204

The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established and a suspicion may reasonably be engendered in the minds of those who come before the tribunal when the minds of the public in the tribunal or members of it may not bring an impartial mind in substance.

PN205

Then on 544:

PN206

Such a mind is not necessarily a mind which has not given thought to the subject matter or one which having given thought about it has not formed any views or inclination of mind upon or with respect to it.

PN207

So two things arise out of that section: a) that it must be firmly established and the applicant hasn't established anything. Second, it's not sufficient that you may have been exposed to matters that have come before you in the ordinary course of performing your functions as a member of the commission or may well have, in doing so, have thought about it, already some preliminary view about it. The conclusionary statements of the court on the last page are about half way down starting with "Certainly, in our opinion." I just draw your attention to those.

PN208

You might note that in the preliminary passages the court finds in fact that they're statements of the President and the Deputy President may well have tendered to favour the adoption of a principle. So the court actually found that those statements did give rise to a suspicion that they hadn't - had some at least formed some view that that wasn't enough to give rise to apprehended bias.

PN209

You will see in my submissions at the footnote in footnote 1, I draw your attention to what was said Mason J in JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 and where he states in unequivocal terms the second aspect of this issue, which is namely, that it is important that judicial officers discharge their duty to sit and not by ceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge they'll have their case tried by someone thought to be more likely to decide the case in their favour.

PN210

I don't suggest that on the present material that the applicant is shopping for commissioners. But the important aspect of his Honour's statement is that you ought not too readily cede to applications that you have a duty to decide matters that come before you properly in accordance with the Act and that it, linking it back to what was said in the Angliss case, is only when it is firmly established that you ought to recuse yourself or any member of the commission ought to.

PN211

A recent decision by way of background in the application for recusal is that of Commissioner Bissett in Metro Trains Pty Ltd v Australian Rail Train and Bus Industry Union and I'll hand that up to the Commissioner. I don't propose to take you in detail through that decision other than to draw your attention to a couple of notable features and this will draw in something I say about this in a minute. The Commissioner in dealing with the application from paragraph 24 under the heading, "Legal Principles," sets out much of the case law in this area including the extract from JRL that I've referred you to at paragraph 25 and some others.

PN212

If I could draw your attention to paragraph 26 to the extract from Laws v Australian Broadcasting Tribunal where the High Court in a case concerning predisposition and prejudgment stated again that the test was firmly established and you can see this in the second paragraph of the extract in paragraph 26. The test is only when it is firmly established there is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments. There's just nothing to fix on here that could support that conclusion. The Commissioner in this case it was suggested to her that actual statements that she had made in the course of a conciliation conference gave rise to that apprehension and at 52 the Commissioner rejects that and under the heading, "Other Considerations" - so she's taken into account the context in which the statements were made. Here we've got something concrete to fix on in the form of actual conduct. The Commissioner was then able to assess those statements in the context of where they were made and how they were made. She concludes that the fair-minded observer would have knowledge of the context and she says:

PN213

They were made during conciliation proceedings which is an integral part of the commission dealing with a dispute where part of a broad range of exchange and exist in the context of an agreement establish a mechanism -

PN214

and goes on to say something about them. What the Commissioner is saying that she's performing a normal function of the commission in conducting a conciliation conference in which she was trying to encourage the parties to reach agreement and that the statements that she made had to be viewed in that context. I remind you, Commissioner, that all we have is a statement that you have been involved in conciliation conferences. No more than that.

PN215

This gives rise to the point that I want to have to stress which is that when there have been cases concerning, which has led to a decision that a Commissioner or a member of the commission ought to have recused themselves there has been something overt about the conduct in order to assess the question of whether it would give rise to and have apprehended bias. Two cases which illustrate that and I'll hand them up to you: United Firefighters Union v MFESB, a full bench decision concerning statements made by Commissioner Foggo. We don't have that yet. I apologise, Commissioner. The reference to it is in the outline.

PN216

THE COMMISSIONER: At what paragraph?

PN217

MR HARDING: 7(c), you'll see at 7(c) there are - - -

PN218

THE COMMISSIONER: Okay.

PN219

MR HARDING: - - -three cases referred to. I've taken you to the Metro Trains one. I've taken you to the MFESB case. And because we can't hand it up I just want to ask you to perhaps examine it in chambers when you have the opportunity. But you will see in paragraph 83 that their Honours and Commissioner analyse the statements actually made by Commissioner Foggo and conclude at paragraph 84 that the statements were emphatic in nature and indicate the finality of the Commissioner's views. So again we have something here that can indicate whether or not there is an impartial line that's been put to task on the issue.

PN220

THE COMMISSIONER: I'm not familiar with that particular case but you say that that's an appeal and an appeal over apprehended bias.

PN221

MR HARDING: Yes, it's an apprehended bias case. It's an appeal to the full bench from a decision by Commissioner Foggo not to recuse herself and full bench held that she should have. Likewise, the decision of CEPU v John Goss, which I do have a copy of and can hand up to you. This is a full bench decision. This arose in circumstances in which in another proceeding there were private conferences conducted by the Commissioner. This is the point that's raised in the 30 April letter by the applicant, that you conducted private conferences. At paragraph 7 of the full bench decision they say:

PN222

On 19 February conciliation began. During the course of the conciliation the Commissioner spoke separately with the appellant union and with the respondents and neither party was privy to the other party's discussions with the Commissioner and they're matters that were uncontentious.

PN223

Then their Honours and Commissioner analysed the case law that was put to them by the appellant including some of the cases that I've referred to. I want to take you to paragraph 36:

PN224

In the present case the interviews were separate and there was no expression by the Commissioner on any view of the matter. There is nothing stated by the parties which could be taken as an indication of bias. Most of the decisions we have considered -

PN225

these are the decisions that are dealt with for apprehended bias -

PN226

do contain such an element.

PN227

The next paragraph:

PN228

In this case the private discussions were in section NA proceedings. They are by their nature conciliation proceedings, the practice of discussions being held privately with each of the parties in conciliation proceedings is well-established. It could be said to be a normal tool of the commission in such proceedings.

PN229

The full bench went on to find that none of this established apprehended bias. Finally, Commissioner, I want to take you to a decision of the High Court in Finance Sector Union; Ex parte Illaton Pty Ltd, which is in fact relied on or referred to in the practice note in paragraph 29. The first paragraph on page 581 of the reported decision the court noted that it identifies the proceedings under section 115 of the Industrial Relations Act or pending in the Australian Industrial Relations Commission. In earlier proceedings pursuant to a different section which has a similarity to this situation Deputy President MacBean's reasons for decision had contained some strongly worded conclusions in relation to some issues of fact which might be involved in the section 115 proceeding and these conclusions were reached after a 45-day hearing.

PN230

So unlike you, Commissioner, where you've been party to apparently things that have been said in conciliation, Senior Deputy President MacBean had actually made findings. That of itself, that was not good enough to justify recusal and at page 583 the full court of the High Court says:

PN231

The nature of industrial relations in this country makes it inevitable that in a particular industry the leading employer and employee organisations and their officers will be frequently involved in disputes with one another. Obviously the functioning of the Commission require that its members participate in the determination of matters in circumstances in which they have familiarity with the industry in which the particular dispute arises, with the context of the dispute and inevitably the facts relevant to the dispute and with one or more of the parties to the dispute.

PN232

In that regard it has been long recognised that in most cases that familiarity is an advantage rather than a disqualifying factor. Again, the Act itself obliges the President of the Commission to constitute industry panels to which a presidential member and at one Commissioner should be assigned.

PN233

We don't have that provision in the current iteration of the Act but as a matter of practice there are such panels and they are established.

PN234

THE COMMISSIONER: And from recollection the legislation that applied at that time - I'm paraphrasing but it required the President to allocate people to panels and that those people had some - - -

PN235

MR HARDING: Experience on.

PN236

THE COMMISSIONER: - - -some experience within the industry.

PN237

MR HARDING: Yes. Here, under I think it's section 581 the President is responsible for ensuring that matters before the commission are conducted efficiently and provides a service to employers and employees - I'm paraphrasing the section now - in Australia. So we have a broad-ranging function conferred on the Commissioner to ensure that there is an efficient allocation of resources of the commission to ensure that its functions are carried out. Whilst it's not quite the same form as an obligation to establish industry panels, they are established by the commission in order to presumably answer that statutory description. It is a statutory factor that you can assess when you ought to be considering this application, bearing in mind that a normal function of the commission is to hear applications by users of the commission in a variety of functions, in a variety of contexts including conciliation.

PN238

No part of the Act assumes that performing one function disqualifies you or another member of the commission from performing another. And this is the point about section 105. In fact that provision only applied to a circumstance in which there had been conciliation of an industrial dispute and for instance, section 170LW, where you deal with disputes under agreements, there was a question, I think, in some of the cases I've read whether or not the same reasoning could apply. But I think for present purposes it's not that significant. It was a very specifically crafted provision that gave an automatic right to a party to simply object.

PN239

Otherwise the common law applied and the applicant had to establish, firmly establish, that a reasonable lay person might form a view that there was ostensible bias and that's the position we now face under the Act in all applications. Can I just finish on the Illaton case and at 25 of page 583, at para 25 or at 25:

PN240

The basis for disqualification is not merely that a member's past decisions on questions of fact or law might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had some previous contact or experience as a member of the Commission with the facts involved in the particular matter with the context in which the particular matter arises or with one or more of the parties involved in the particular matter.

PN241

Commissioner, in my submission that governs this case. That governs this case. The High Court has said in commission cases that past familiarity with the facts of a particular matter does not give rise to an apprehension of bias. That is the whole by the applicant. The generality of their submission is that because they might call something in evidence based on as a general description that is contained in their 30 April letter you might become embarrassed, I think is the word, that's used in the letter because you have been exposed to what has been done in those applications. Well, the High Court says in Illaton that doesn't matter and that's not a basis for disqualification.

PN242

Commissioner, I skipped over and somewhat - I've just taken you to the authorities but what the submission does is to try to formulate the UFU's response in terms of the two-step process identified in Ebner and paragraph 7 deals with the first step and then paragraph 9 deals with the second step. The second step requires some logical articulation of how it is there might be a deviation from the ordinary course of decision-making which requires impartiality. You'll see in the paragraphs that I identify that in order to do that the applicant needs to specify, in my submission, what it is that may give rise to that and they haven't other than in the most general terms.

PN243

The characterisation of you as a witness, in particular, is a characterisation that you ought to reject. It's inapt. That's not what you are in my submission. You are performing the ordinary functions of any other commissioner in the commission and that's how it is to be viewed. I just draw your attention to the last matter in (c). It's self-explanatory. I don't need to dwell upon it. So unless you have some questions, Commissioner, they're the submissions for the UFU.

PN244

THE COMMISSIONER: A question I do have in respect of your submissions is in paragraph 9(a) you say that

PN245

The implication that the Commissioner cannot both act as a conciliator and a decision-maker merely as he or she has been exposed to the industrial affairs of the industrial parties that come before the Commissioner must be rejected.

PN246

The question I've got is how do you reconcile that example to the practice note and in particular paragraph 26 which is the part that Mr Parry referred to which does give an example of a member who might conciliate a matter and then the party believes that the member may not bring an impartial mind to the arbitration. It seems to me the practice note endeavours to deal with, I suppose, the real politic of the situation which is there may well be situations in which parties are disinclined to have an arbitrator be the same as the conciliator. So I'm just wondering how you might reconcile that with nonetheless a very definite proposition that you put in your paragraph 9.

PN247

MR HARDING: Well, I think the answer is that the practice note is intended to inform users of the commission about how they might go about raising issues of potential ostensible bias and you can see that in paragraph 26 the example is housed in those terms. If the member conciliates a matter and a party believes that the member may not - then there's a process by which that person can bring their concern to the attention of the commission and the Commissioner as a member of the commission you have to decide whether or not to recuse yourself in accordance with law.

PN248

As my learned friend, Mr Parry, has said the practice note is a general statement summarising some of the cases but it is not the law in the area. It's not a provision of statute. So I reconcile it in this way which is that the submission I've made is merely because you've been exposed to the industrial affairs of industrial parties that come before you, that in my submission is not enough to disqualify you from hearing the matter and I think the Illaton case confirms it and that's the law. It doesn't mean that a person who comes before a member of the commission in a conciliation might form a different view. They by reason of that raise it. You've got to decide it according to the facts and circumstances at that time in relation to that issue according to the law.

PN249

THE COMMISSIONER: All right. The second question I then had was in relation to the submission that Mr Parry put forward that and I'm about to do you a disservice in terms of your submission but bear with me. But I understand you to say that at some point in the future the apprehension might crystallise because of what is led in the way of evidence.

PN250

What I understand him to say is that at that point in the event that the parties were to say, "Well, look, there is an apprehension of bias" and I were to accede to that request and to vacate the commission, vacate the hearing. In my lay language that obviously creates a big issue for the parties. It means that there's potentially evidence which is being thrown away and may have to be repeated. Can you endeavour to try to address that particular argument of Mr Parry and reconcile that if it needs to be reconciled perhaps to the authorities as you see them?

PN251

MR HARDING: I guess it's possible that something might crystallise and if as a result you had to recuse yourself that would be unfortunate, I think. But it has to crystallise and you can't, if you like, speculate about what evidence might be called and how that may give rise to a concern that might cause the person sitting in the back to form the view the authorities tell us must be formed because that doesn't satisfy the test. In my submission it would destroy the kind of system that the commission under the statutory scheme is there to perform. It would mean that in every circumstance in which a Commissioner has had exposure to the facts and circumstances of the parties in a proceeding or in other proceedings which become relevant in a proceeding that they have to recuse themselves in anticipation of the possibility that there might or might not be something that gives rise to a concern by one party or the other of ostensible bias. But that is so speculative and so hard to predict in advance that it simply cannot form a proper basis to exercise a judgment that - to make a decision which is a substantive decision capable of being appealed by a party that you ought to recuse yourself and not perform the function the commission is required to perform under the Act.

PN252

It's a concern that I can't see on the material arises at all and if it was an issue then you would expect it to have been reflected in the authorities but it doesn't appear to be reflected in any authority. The Illaton case tells us that mere exposure is not enough and if mere exposure is not enough the hypothetical possibility in the course of running a proceeding that there might be something is not enough. It just can't be.

PN253

THE COMMISSIONER: All right. Thank you for that, Mr Harding. Is there anything else from the UFU?

PN254

MR HARDING: No, Commissioner.

PN255

THE COMMISSIONER: Mr Parry, is there anything in the way of reply?

PN256

MR PARRY: Yes, Commissioner. I want to take up that last exchange because that is a very significant exchange because they're really saying they want to have it both ways. They want to say notwithstanding the fact that we're telling you these matters now they're in effect reserving their position to make some sort of application further down the track. I wasn't going to commence my reply with that.

PN257

The position is that our learned friend's submissions really don't go to the point that they're making. This isn't a case where there have been statements made by the commission out of court or in conciliation proceedings. This is not a prejudgment case or any ostensible basis on that front. It is that we have told the commission that we will be calling evidence of certain matters and that it is inevitable that the commission will be and has witnessed events that we would want to rely on. The events that we would want to rely on are we will describe as the conduct of the UFU in bargaining.

PN258

That is a critical matter in the substantive proceedings given the discretionary nature of the termination provision. In the Mount Thorley case indeed we would be not performing our task if we didn't put that evidence of that material before you. In those circumstances and I had a decision of a Western Australian Supreme Court judge handed to me which I'll hand up to the court that's called Scahill v Thomas (1936) Supreme Court Western Australia cases - - -

PN259

MR HARDING: Current law.

PN260

MR PARRY: Pardon?

PN261

MR HARDING: Current law.

PN262

MR PARRY: Well, my learned friend has an aside at the bar table saying current law. Well, can I say this is such obvious law that it doesn't need to be repeated every 10 years? It's in particular where a decision-maker, being a magistrate, had observed an accident and then was called on to - well, actually gave judgment in respect to the causes of the accident. Once you describe it that way you go, "Well, why would that need to be repeated every 10 years?" And the rationale of his Honour Draper J in that case appears on page 3 at the bottom of the page and as he says there:

PN263

And as one of the justices who had seen the accident he must have been influenced in his decision by what he had seen. It may have been unconsciously and possibly was but I cannot help thinking that he must have been biased seeing that no note was taken of the defendant's evidence who were subjected to a long cross-examination.

PN264

One doesn't come to this and say, "You will be biased" or necessarily that will be the case. The concern is that these things are unconscious in effect or may well be. And can I just deal with that last aspect that my learned friend raised? That this is a future apprehension. It's not a future apprehension. It is an apprehension we have now. We are going to commence a proceeding where some 20 or 30 days are set aside for hearing. There are a huge number of witnesses that are to be called and we have indicated to the commission what some of the evidence will be.

PN265

It is not quite good enough to say, "Well, it might crystallise in the future." The world of apprehension in this area is not based on something crystallising because by the time it crystallises it's too late. Really, it is as the High Court said in Livesey if there is any real possibility, that is, participation in a case might lead to a reasonable apprehension of prejudgment or bias, you should of course refrain from sitting. You are required in effect to speculate about what will occur further down the line and make an assessment as to our current apprehension and the commission has heard what we have to say.

PN266

It's not good enough in our submission to say, "You can't speculate." You can speculate or indeed the nature of these applications in effect often do require speculation. It's not good enough, we would submit, to simply say, "This might happen further down the track." That would be the worst of all worlds but for the commission and ourselves. If the Commissioner pleases.

PN267

THE COMMISSIONER: All right, thank you, Mr Parry. I'll now adjourn and consider my decision and issue it as quickly as I can.

<ADJOURNED INDEFINITELY [5.17PM]