Fair Work Act 2009
s.236 - Application for a majority support determination

Australian Workers' Union, The
v
Woodside Energy Ltd
(B2022/530)

Recusal Application. Woodside Energy Ltd : Woodside employees engaged in Goodwyn Alpha, North Rankin Complex and Angel

[1] On 3 June 2022 the Australian Workers’ Union (AWU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act), for the Fair Work Commission (FWC) to make a majority support determination (Determination). The Determination would require Woodside Energy Ltd (Woodside) to commence bargaining for a new enterprise agreement (Proposed Agreement). 1

[2] The Proposed Agreement would cover those employees of Woodside who are engaged to work on Goodwyn Alpha, North Rankin Complex and Angel in Level 4 to Level 9 roles, up to and including supervisors (Employees). 2

[3] The AWU says that it has collected signed individual petitions from a majority of Employees confirming that they wish to bargain (Petitions). The AWU submits that the appropriate way for the FWC to determine whether a majority of Employees wish to bargain is for the FWC to compare the information contained in the Petitions with Employee identification information provided by Woodside (Petition Method). 3

[4] On 6 June 2022 Woodside filed a response to the Application opposing the Application. 4

[5] An email was sent to the parties on 17 June 2021 notifying them that the Application had been allocated to my Chambers and that I proposed to issue directions for the determination of the Application. The parties were invited to inform Chambers if they believed there was utility in first listing the matter for conciliation. Both parties agreed to engage in conciliation. 5

[6] The parties participated in a conciliation conference on 29 June 2022. At that conference and in subsequent correspondence with Chambers, Woodside expressed concern that the Petition Method of determining whether a majority of employees wish to bargain was not a reliable method to work out whether a majority of employees want to bargain in the circumstances of this Application. At the same conference the AWU indicated a willingness to consider alternative methods of demonstrating that a majority of relevant employees wish to bargain.

[7] On 30 June 2022 Mr Anthony Longland (Mr Longland), Partner of Corrs Chambers Westgarth who represent Woodside in these proceedings, wrote to Chambers setting out inter alia Woodside’s views with respect to the programming of the Application and foreshadowing the making of an application for an order for production prior to 8 July 2022.

[8] In the absence of any such application being filed and having considered the parties’ submissions with respect to appropriate programming orders, directions were issued to the parties on 12 July 2022 (Directions). 6

[9] In light of Woodside’s concerns, and the AWU’s willingness to explore alternative methods to determine whether a majority of the Employees wish to bargain, Woodside were invited in the Directions to propose an alternative method to the Petition Method to determine whether a majority of Employees wish to bargain. The Directions provided that the AWU would then file its submissions in response. 7

[10] In addition to dealing with the determination of leave and the filing of a digital court book the Directions provided as follows:

“[1] The Australian Workers’ Union (AWU) has made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination which would require Woodside Energy Ltd (Woodside) to commence bargaining for a new enterprise agreement (Agreement).

[2] The AWU propose that the Agreement cover those employees of Woodside who are engaged to work on Goodwyn Alpha (GWA Platform), North Rankin Complex (NRC) and Angel (Angel Platform) (together, the Manned North West Shelf Fixed Gas Platforms) in Level 4 to Level 9 roles, up to and including supervisors. (Employees).

[3] Woodside oppose the Application.

[4] The making of a majority support determination simply confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.

[5] The AWU say that it has collected signed individual petitions from a majority of employees who will be covered by the proposed Agreement (Petitions).

[6] It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows:

•  the AWU files with the FWC and serves on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022;

•  the AWU files the Petitions with the FWC on a confidential basis and serves a redacted version on Woodside by 4pm, Thursday 21 July 2022;

•  Woodside files with the FWC on a confidential basis a list of Employees employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the Employee’s employment by 4pm, Thursday 21 July 2022 (List of Employees); and

•  the FWC compares the Petition signatures to the List of Employee in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement.

[7] The Sworn Statement must be provided in the form of a Statutory Declaration.

[8] In order to determine this matter or ascertain if there is a necessity for a hearing, the FWC DIRECTS Woodside to file with the FWC and serve on the AWU by 4pm, Thursday 21 July 2022:

a. An outline of submissions in response to the Application, including but not limited to:

•  the relevant ‘time’ for the purposes of section 237(2)(a)(i);

•  whether it opposes the process for determining Employee support for the Application proposed in paragraph [6] above and, if so, what alternative method Woodside proposes;

•  whether the group of Employees was fairly chosen;

•  whether it is reasonable in all the circumstances for the FWC to make the majority support determination sought by the AWU; and

b. b. A signed and dated witness statement for any witness upon whose evidence Woodside relies.

c. A copy of any document on which Woodside relies.

d. A copy of any authority on which Woodside relies.

[9] The FWC DIRECTS the AWU to lodge with the FWC and provide to Woodside by 4pm, Thursday 28 July 2022:

a. An outline of submissions in reply, including but not limited to the relevant ‘time’ for the purposes of section 237(2)(a)(i)

b. A signed and dated witness statement for any witness upon whose evidence the AWU relies.

c. A copy of any document on which the AWU relies.

d. A copy of any authority on which the AWU relies.”

[11] The email to which the Directions were attached stated as follows: 8

“Dear Parties,

Please see attached directions for your attention and action.

In relation to the below email from the Respondent, the Deputy President notes that no production orders have been filed as yet and therefore the attached directions have been issued.

Parties will note that these directions provide the opportunity for the Respondent to make any submissions in relation to the method for determining whether a majority exists different to that proposed by the Applicant and set out in the Directions. The Applicant then has the opportunity to reply to these submissions.”

[12] On 15 July 2022 Woodside made an application for an order for production of documents to the Commission (Application to Produce). The Application to Produce sought orders that the AWU produce to Woodside: 9

a. Unredacted copies of the Petitions

b. Each Certificate of Completion issued by DocuSign in respect of the Petitions.

c. Every communication sent to each Employee between 1 February 2022 and 1 July 2022, including to their private email addresses, from:

•  Mr Doug Heath;

•  any person on behalf of the AWU;

•  any person on behalf of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU); and

•  any person on behalf of the ‘Offshore Alliance’.

[13] On 19 July 2022 the AWU filed submissions opposing the Application to Produce.

[14] On 20 July 2022, I issued a Decision 10 declining Woodside’s Application to Produce (Production Decision).

[15] On 21 July 2021, Mr Longland wrote to Chambers indicating that Woodside objected to me arbitrating the Application and requested that I recuse myself. Mr Longland also indicated that Woodside had the same day filed an appeal of the Production Decision (Appeal).

[16] The Notice of Appeal sought a stay of the proceedings. No stay was granted.

[17] On 25 July 2022 Woodside made a formal application for recusal (Recusal Application).

[18] On 27 July 2022 directions were issued to the parties for the filing of submissions and evidence in relation to the Recusal Application (Recusal Directions).

[19] On 21 July 2022 the AWU filed the Statutory Declaration and copies of the Petitions in accordance with the Directions.

[20] The Recusal Application was listed for a hearing in Perth on 30 August 2022 (Hearing).

[21] On 2 September 2022 a Full Bench of the FWC refused permission for the Appeal. 11

Permission to be represented

[22] The Recusal Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.¹²

[23] The AWU and Woodside sought permission to be represented at the Hearing.

[24] Having considered the submissions of the parties, leave was granted to the AWU and Woodside to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[25] At the Hearing, Woodside was represented by Mr Ian Neil SC of Counsel and the AWU was represented by Mr Mark Gibian SC of Counsel.

Evidence

[26] The Recusal Directions directed the parties to file submissions and evidence in relation to the recusal request made by Woodside.

[27] Materials were filed on behalf of Woodside on 4 August 2022 and materials were filed by the AWU on 11 August 2022.

[28] The Woodside materials included a witness statement of Mr Longland. The AWU did not seek to cross examine Mr Longland.

[29] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.

[30] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Consideration

[31] Woodside submits that I should recuse myself from any further involvement in the determination of the Application on the basis of apprehended bias.

[32] The grounds on which Woodside relies for its Recusal Application are that:

“[17] First, the contents of the first sentence in paragraph [4] of the Directions are incorrect as a matter of law, in that they ignore sub-paragraphs (b), (c) and (d) of s.237(2). They are expressed in conclusory language indicative of finality, the terms of which reasonably implied that the Deputy President considered herself satisfied of the requirements in sub-paragraphs (b), (c) and (d), notwithstanding that: the proceedings are only at a preliminary stage; Woodside had contended in its Response that the requirements in sub-paragraphs (c) and (d) of s.237(2) were not satisfied, such that these matters were in dispute; and the parties had not filed any submissions or evidence on the substantive application.

[18] Second, the second sentence in paragraph [4] of the Directions is again expressed in conclusory language indicative of finality, and incorrectly excludes relevant considerations, being the broader and more significant implications of a majority support determination, such as the enlivening of good faith bargaining obligations, and the consequent recourse to protected industrial action. Each of these matters are directly relevant to the question of whether the Commission could be satisfied, in accordance with sub-paragraph (d) of s.237(2), that it is reasonable in all the circumstances to make the determination. The exclusion of these matters, and the Deputy President’s use of the word ‘simply’, conveyed the reasonable implication of a

foregone conclusion that none of these matters were, or could not in an appropriate case be, sufficient to prevent the Deputy President from being satisfied of the matter in sub-paragraph (d) of s.237(2).

[19] Third, notwithstanding Woodside’s suggestion in the 30 June Email that – consistent with the usual approach – the AWU should file its submissions on the substantive application first, the Deputy President: did not direct the AWU to file any submissions ‘in chief’ on the substantive application, notwithstanding that the AWU bears the onus of proof. 23 The AWU was ordered to file only ‘submissions in reply’ to those filed by Woodside, pursuant to paragraph [8] of the Directions.24 The Deputy President did not at any time explain the reason for this departure from the usual approach, nor how Woodside was to prepare its submissions and evidence prior to seeing any evidence which was to be relied upon by the AWU, nor any submissions from the AWU on its position on the matters which had clearly been put in issue in the Response.

[20] Fourth, although on notice that Woodside intended to file an application for the production of documents, and aware that Woodside had not provided any certain date by which it would do so, the Deputy President issued the Directions explicitly because an application had not been filed, without inquiring with Woodside whether and when an application was forthcoming. The Directions also did not schedule the filing of the foreshadowed application. This occurred despite Woodside’s representatives emphasising in the 30 June Email their willingness to engage further with the Deputy President in relation to any draft directions.

[21] Fifth, paragraph [6] of the Directions purports to ‘propose’ a method of determining whether majority support exists, yet directs the parties forthwith to take steps in accordance with the so-called proposed method, so as to enable that method. Further, paragraph [6] asserts that the Commission will compare the petitions provided by the AWU on a confidential basis with the list of employees provided by Woodside ‘in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement’. This statement reasonably indicated that the Deputy President had already concluded, while being on notice of Woodside’s concerns about the petitions but without having dealt with these concerns, that the petitions in and of themselves would enable her to be satisfied of the requirement in sub-paragraph (a) of s.237.

[22] Sixth, although paragraph [8] of the Directions purports to give Woodside an opportunity to make written submissions by 4 pm on Thursday 21 July 2022 about the appropriateness of the so-called proposed method, paragraph [6] of the Directions directs the AWU and Woodside to take steps in accordance with the so-called proposed method by that same time and date.

[23] Seventh, although paragraph [8] of the Directions purports to give Woodside an opportunity to make written submissions by 4 pm on Thursday 21 July 2022 about the appropriateness of the so-called proposed method, the Decision, which is dated 20 July 2022, appears to include at [20]-[23] an explanation of what reasonably appears to be a concluded view as to why the so-called proposed method is appropriate, without having received or considered Woodside’s written submissions on this issue.

[24] Eighth, in the Decision, the Deputy President made adverse comments about Woodside’s application that are illogical, unfair and without a proper basis. For example, the Deputy President at [27] of the Decision, said that Woodside had provided no evidence to suggest that the petitions were fraudulently completed, and at [31] of the Decision, says that Woodside has not provided evidence of employees who signed petitions being actually misled. These matters were relied on by the Deputy President to explain her refusal to make the production orders sought by the application. However, in the absence of the production orders being made, Woodside would not know which employees had signed petitions, from whom it could then lead relevant evidence of the kind identified by the Deputy President.

[25] These matters would cause a fair-minded lay observer to reasonably apprehend that the Deputy President had pre-judged or predetermined any or all of the following matters adversely to Woodside, in such a way that her mind was not open to persuasion:

(a) whether the ‘fairly chosen’ requirement in s.237(2)(c) was satisfied;

(b) whether the reasonableness requirement in s.237(2)(d) was satisfied;

(c) Woodside’s request to access unredacted copies of the petitions, as foreshadowed in both its Response and the 30 June Email;

(d) Woodside’s serious and substantive concerns about the reliability of the petitions; and

(e) Woodside’s opposition to the so-called proposed method in paragraph [6] of the Directions.”

[33] The above grounds were further expanded at the Hearing.

[34] The AWU opposes the Recusal Application.

[35] Apprehended bias can only be found if it can be said a fair-minded and appropriately informed lay observer would reasonably apprehend that the decision maker might not determine the matter in an impartial and unprejudiced way: 13

“… bias ‘connotes the absence of impartiality’ What constitutes impartiality is more than predilections. It requires the decision-maker’s mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her.”14

[36] Disqualification is only established if there is: 15

“a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”

[37] Disqualification by prejudgment presents a high threshold and such a conclusion is not to be drawn lightly. 16

[38] In ALA15 v Minister for Immigration and Border Protection 17 the Full Court of the Federal Court set out the principles for determining a recusal application noting that:

“…(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;

(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer.” [FOOTNOTES OMMITTED]

[39] The test for apprehended bias has: 18

“a flexible quality, differing according to the circumstances in which a power is exercised.”

[40] The test for apprehended bias recognises and accommodates differences between court proceedings and other kinds of decision-making. 19 The context in which the test of apprehended bias falls to be applied will clearly affect how the test is applied.20 The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it is made as well as the circumstances leading to the decision.21

[41] The context of proceedings before the FWC includes that it is a specialist tribunal established to deal with industrial matters in a practical, expeditious and effective manner. The FW Act directs the FWC to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.

[42] Other important contextual elements are that the Recusal Application has been brought at the earliest stage of proceedings before any substantive decision has been made and that a Full Bench of the FWC has refused permission to appeal the only decision which has been made. 22

[43] The nature of the present proceedings is that they involve bargaining. The FW Act does not impose a specific time limit for the determination of applications under section 236 of the FW Act. However, it is consistent with the objects of Part 2-4 of providing a simple, flexible and fair framework for collective bargaining that such applications will be dealt with efficiently and with a minimum of technicality. Employees pursuing changed terms and conditions of employment by way of negotiation of a collective agreement in circumstances where their employer has refused to bargain collectively can not do so if and until their s.236 application is resolved in their favour. The weight which can be attached to the evidence of employee views has in previous matters been found to decrease over time, and therefore the timeliness of the consideration of the evidence before the FWC is important.

[44] As a specialist tribunal Members are familiar with the factual and legal issues likely to arise in proceedings. Members are directed by the FW Act to apply that knowledge in a common sense and practical way to determine a procedure for the determination of such applications which avoids unnecessary technicality but produces fair and quick outcome.

[45] As was explained in Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd:  23

“In the discharge of its functions, particularly that of the prevention of inter-State industrial disputes, the Commission is required to act promptly and effectively. In a context where its members are permanent and its resources are limited, it is desirable that the members, between them, possess a vast fund of practical background knowledge and experience extending over all facets of Australian industrial relations. Indeed, s 20 of the Industrial Relations Act 1988 (Cth) (the Act) requires each member of the Commission to “keep acquainted with industrial affairs and conditions”. A potential or actual industrial dispute extending beyond the limits of any one State is liable to encompass a variety of issues or potential issues between the parties or potential parties to it. 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 dispute with one another. Obviously, the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor.

In these circumstances, the need for caution which this Court has consistently identified (see, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Re Polites (1991) 173 CLR, at 86-87; 38 IR 119-120; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116) in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. The basis for disqualification is not merely that the 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 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.”

First Ground

[46] The first ground relied upon by Woodside is a contention that the first sentence in paragraph [4] of the Directions is wrong at law and it can be inferred that I have a concluded view that the requirements (b), (c) and (d) of s 237(2) had been met.

[47] Paragraph 4 of the Directions states as follows:

“[4] The making of a majority support determination simply confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.”

[48] The Directions are templated documents and are drafted in contemplation of their use by parties who are unrepresented and industrially unsophisticated as well as those who are not. The ancestry of paragraph [4] can be traced back to Directions routinely issued by Members of the FWC prior to 2017. Paragraph [4] of the Directions is no more than an introduction to procedural directions that follow and would not be understood by any reasonable lay observer to represent a summary of the law at all, much less a comprehensive one.

[49] A fair-minded lay observer could not reasonably understand this sentence in isolation to suggest that I would not have regard to submissions of the parties with respect to section 237 or had a concluded view on any matter. It is certainly the case that a fair-minded lay observer could not reach that conclusion when paragraph [4] is read in context that is with paragraph [8] of the same Directions which direct Woodside to make submissions with respect to these specific matters.

Second Ground

[50] The second ground relied upon by Woodside is a contention that the second sentence in paragraph [4] of the Directions incorrectly excludes relevant considerations, being other implications of a majority support determination such as an opportunity to seek approval for protected action, which Woodside say may be relevant to the reasonableness assessment in section 237(2)(d).

[51] Once again the sentence is merely an introductory statement to templated and routinely used directions and could not be reasonably understood as expressing a concluded view as to the considerations that might be relevant to section 237(2)(d) or as to whether it would be reasonable to make the determination as sought by the AWU. No reasonable lay observer would conclude that I would refuse to consider submissions advanced by Woodside on the question, particularly given that the Directions themselves specifically invite submissions on the very matter.

Third Ground

[52] The third ground relied upon by Woodside is a contention that a direction that required Woodside to file submissions before requiring submissions to be filed by the AWU contrary to the wishes of Woodside demonstrated bias.

[53] How procedural directions which provide both parties with the opportunity to file materials would lead a reasonable observer to conclude that the I have prejudged the Application is not explained by Woodside.

[54] The parties in matters before the FWC not infrequently have different views from the FWC about what material they should be required to file and when. It is not infrequently the case that one or both parties preferred programming options are not adopted by the FWC for sound reasons.

[55] The FWC has broad procedural powers to determine the appropriate way to conduct matters before it. The FW Act directs that this must be done so in a manner that quick, informal and avoids unnecessary technicalities.

[56] As members of a specialist tribunal FWC members are familiar with the legal and evidentiary issues commonly arising in applications before them and well placed to judge the appropriate way to determine such matters consistent with the objects of the FW Act.

[57] The initiating application filed by the AWU articulated why, in the AWU’s submission, the majority support, fairly chosen and reasonableness criteria were satisfied. The approach of directing the AWU to file material establishing that majority support had been demonstrated by petition and for Woodside to file submissions and material contesting the application was the most expeditious manner in which to deal with the Application.

[58] The order of filing was pointed out to the parties in the email in which the Directions were forwarded and an explanation provided.

[59] Until filing the Recusal Application, Woodside made no complaint about the Directions nor has it at any time requested that the Directions be varied.

[60] There is nothing one sided or unfair about the Directions. Both parties had the opportunity to file materials. Had Woodside requested the opportunity to provide materials in reply that would have been granted. The Hearing and written closing submissions provide a further opportunity for Woodside to address the case put by the AWU.

Fourth Ground

[61] The fourth ground relied upon by Woodside is a contention that my issuing of the Directions on 12 July 2022 prior to the filing of the Application for Production demonstrated bias.

[62] How this would lead a reasonable observer to conclude that I was not impartial or had prejudged the Application is not explained.

[63] Woodside first foreshadowed an application for production on 6 June 2022. 24

[64] During the Conference the parties discussed the resolution of the Application. Woodside indicated that it wished to consider its position. At the conclusion of the Conference the parties were advised that if the issues between the parties could not be resolved or narrowed directions would be issued to the parties. The representatives of the parties are familiar with the templated directions issued by my Chambers in applications of this nature. 25

[65] In its correspondence of 30 June 2022 Woodside acknowledged that it was aware of the nature of the directions I proposed to issue and provided written submissions as to the amendments it submitted I should consider making. I took those submissions into account when I set the Directions. The Directions were not issued without notice or without input from Woodside. Woodside have not since the issuing of the Directions, other than indirectly by way of the Recusal Application, sought to have the Directions varied.

[66] In the correspondence on 30 June 2022 Woodside informed my Chambers that it intended to file an application for an order to produce ‘before the end of next week’ i.e. by 8 July 2022. It did not file an application during that period. It did not indicate that it required further time to make the application. Given that Woodside had been foreshadowing the application for more than a month but had not yet progressed it my Chambers proceeded to issue the Directions on 12 July 2022 four days after the expiry of the period nominated by Woodside in order to ensure the timely determination of the Application.

[67] The Directions did not prevent Woodside seeking an order for production which it did on 15 July 2022.

[68] It is not for the FWC to remind parties to file foreshadowed applications.

Fifth Ground

[69] The fifth ground relied upon by Woodside is a contention that paragraph [6] of the Directions reasonably indicated that I had already concluded that the Petitions in and of themselves would satisfy the requirement of s.237(2)(a).

[70] Paragraph [6] of the Directions stated as follows:

“It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows:

•  the AWU files with the FWC and serves on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022;

•  the AWU files the Petitions with the FWC on a confidential basis and serves a redacted version on Woodside by 4pm, Thursday 21 July 2022;

•  Woodside files with the FWC on a confidential basis a list of Employees employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the Employee’s employment by 4pm, Thursday 21 July 2022 (List of Employees); and

•  the FWC compares the Petition signatures to the List of Employee in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement.”

[71] Paragraph [6] of the Directions should be read in context of paragraph [8] of the Directions which direct Woodside to file submissions which address “whether it opposes the process for determining Employee support for the Application proposed in paragraph [6] above and, if so, what alternative method Woodside proposes.”

[72] Section s.237(3) provides that:

“(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.”

[73] The purpose of paragraph [6] of the Directions is to two-fold. Firstly, it identifies a possible method for the purposes of section 237(3). Paragraph [6] clearly states that the Petition Method is only a ‘proposed method’. It is proposed in the templated directions because it is the most commonly used method in section 236 applications to determine whether a majority of employees wish to bargain. Paragraph [8] clearly and specifically invites the employer to propose an alternative method. It is clear from even the most cursory reading of the Directions that the method to be chosen for the purposes of section 237(3) has not yet been determined let alone that section 237(2)(a) has been satisfied.

[74] Secondly the requirement to file the Petitions and the List of Employees before deciding upon a method to determine whether a majority exists was expressly endorsed by the Full Bench in Inpex Australia Pty Ltd v Australian Workers Union 26. At [15] of that decision the Full Bench explained that such information is appropriately gathered pursuant to section 590(1):

“… such as to found jurisdiction to issue an order for a ballot or adopt some other method of working out whether a majority of employees want to bargain.”

[75] The AWU made the Application asserting that it had collected petitions from a majority of the Employees. The Directions put the AWU to proof on this claim to avoid unnecessary use of the resources of FWC and the parties should that threshold not be met. If that threshold was met paragraph [8] of the Directions provide Woodside with the opportunity to make submissions with respect to the appropriate method for the purposes of section 237(3).

[76] Woodside did not comply with the Directions and therefore the opportunity to determine whether the threshold identified in the Inpex Australia Pty Ltd v Australian Workers Union²⁷ was met could not be tested before the parties incurred the expense of the Recusal Application and the Appeal. Both of which would have been unnecessary if the threshold was not met.

Sixth Ground

[77] The sixth ground relied upon by Woodside is the contention that I had reached a concluded view about the appropriate method for the purposes of section 237(3) because the due date for Woodside’s submissions with respect to the appropriate method were due on the same date as the Petitions and List of Employees.

[78] This ground appears to be, in substance, a repeat of the complaint advanced as the fifth ground, with the concession that paragraph [8] of the Directions provided Woodside with an opportunity to make submissions on the appropriateness of the proposed method for determining majority support.

[79] The fact that the AWU was directed to file the Petitions and Woodside was directed to file a List of Employees at the same time as submissions in relation to the proposed method for the purposes of section 237(3) does not suggest the Petition Method would be adopted or that any other approach or submission would not be considered. The Directions clearly stated that. It was simply an expeditious approach to the proceedings consistent with the statutory directive that the FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities.

Seventh Ground

[80] The seventh ground relied upon by Woodside is the contention that the Production Decision at [20]-[23] give rise to a reasonable apprehension of bias on the basis that it purportedly represents a concluded view that the Petition Method was the appropriate method for the purposes of s.237(3).

[81] Paragraph [20] to [23] of the Production Decision states as follows:

“[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.

[21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations.

[22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.

[23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application.”

[82] These paragraphs must be considered in the context in which the Production Decision was issued. Directions had been issued to the parties requiring Woodside to file submissions in relation to the appropriate method for the purposes of s.237(3). Those submissions have not yet been filed. The Production Decision was an interlocutory decision issued in the interim dealing the submissions of both parties with respect to the merits of the Application to Produce.

[83] The Production Decision deals only with the Application to Produce. The paragraphs cited address the issue of whether it is appropriate to order the production of unredacted copies of the Petitions. Not whether the Petition Method is the appropriate method for the purposes of s.237(3).

[84] Paragraph [20] is simply a summary of why the AWU opposed the production of the petitions; [21] is merely a statement that the Petition Method is the most common mechanism used; [22] is merely a statement of the effect of s 237(3); and [23] is a statement of the industrial expertise of FWC Members.

[85] Neither the paragraphs cited, nor the Production Decision more broadly, indicate a concluded view of the proposed method or its appropriateness. The Production Decision is not a final determination of the merits of the Application. In fact a fair-minded lay observer would not reasonably apprehend from the Production Decision that any concluded view had been reached in relation to any element of the merit of the Application.

Eight Ground

[86] The eighth ground relied upon by Woodside is the contention that I made adverse comments about Woodside’s application that were ‘illogical, unfair and without a proper basis’ which would cause a fair-minded lay observer to reasonably apprehend that I had predetermined:

a. whether the ‘fairly chosen’ requirement in s.237(2)(c) was satisfied;

b. whether the reasonableness requirement in s.237(2)(d) was satisfied;

c. Woodside’s request to access unredacted copies of the petitions, as foreshadowed in both its Response and the 30 June Email;

d. Woodside’s serious and substantive concerns about the reliability of the petitions; and

e. Woodside’s opposition to the so-called proposed method in paragraph [6] of the Directions.

[87] The only comments identified by Woodside as purportedly ‘illogical, unfair and without a proper basis’ are paragraphs [20]-[23], [27] [31] and [35] of the Production Decision which state as follows:

“[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.

[21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations.

[22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.

[23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application.”

…

“[27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities.”

…

“[30] Woodside submit that this justifies an unprecedented invasion into the personal privacy of employees by seeking production of all communications over a six month period between Employees and Mr Heath or any person on behalf of the AWU, CFMMEU or the Offshore Alliance.”

…

“[35] If Woodside believe that the Petition information was tainted by incorrect information and if properly informed Employees would not support bargaining, then this can be addressed by Woodside proposing, as they have been invited to, an alternative method of assessing whether a majority of employees wish to bargain. This assessment can be timed to occur after Woodside has provided further information to its Employees to address any incorrect information which it alleges has been provide to its Employees.”

[88] Other than not finding in Woodside’s favour Woodside have not explained how these comments are ‘illogical, unfair and without a proper basis’. The fact that a decision maker does not find in favour of a party does not make the decision illogical or unfair or lacking a proper basis. The basis of my reasons for declining to make the orders sought is set out in the Production Decision. The Production Decision has since been upheld by a Full Bench. 28

[89] Neither cited paragraph provide any basis upon which a reasonable observer would infer that I have prejudged the Application. The cited paragraphs relate solely to merits of the Application to Produce based exclusively on the submissions and evidence of the parties filed in respect of the Application to Produce.

[90] Such findings do not preclude Woodside subsequently filing additional evidence in support of subsequent applications for orders to produce which convince me that orders to produce are appropriate.

[91] Neither the paragraphs cited, nor the Production Decision more broadly, indicate a concluded view of the appropriate method for the purposes of s.237(3). In fact at paragraphs [34]-[35] of the Production Decision I expressly state that it is open to Woodside to propose an alternative method of assessing whether a majority of employees wished to bargain and to put forward evidence if it believed employees were not freely expressing their views.

[92] The fair-minded lay observer is taken to be aware of the nature of the decision and would not conclude that a view expressed at an interlocutory stage as to the material then available gives rise to a concern that the judge or tribunal member had predetermined the final outcome of the proceedings.

[93] The Production Decision is not a final determination of the merits of the Application. In fact a fair-minded and appropriately informed lay observer would not reasonably apprehend from the Production Decision that any concluded view had been reached in relation to any element of the merit of the Application.

Conclusion

[94] At the Hearing Counsel for Woodside conceded that no single ground identified by Woodside constituted a sufficient basis for recusal. Combining those grounds together does not make Woodside’s Recusal Application any stronger.

[95] Having considered the submissions of the parties, the evidence tendered and the relevant authorities I am satisfied that it was not appropriate to recuse myself.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR745056>

Appearances:

Mr Ian Neil SC of Counsel for the Applicant.
Mr Mark Gibian SC of Counsel for the Respondent.

Hearing details:

2022
PERTH
30 September

Final written submissions:

Applicant, 11 August 2022.
Respondent, 4 August 2022.

 1   Digital Court Book (DCB) 20-29.

 2   Ibid 20-29.

 3   Ibid.

 4   Ibid 30-36.

 5   Ibid 38-39.

 6   Ibid 51-54.

 7   Ibid.

 8   Ibid 50.

 9   Ibid 56-65.

 10   [2022] FWC 1892.

 11   Woodside Energy Limited v Australian Union of Workers [2022 FWCFB 168.

12 Warrell v Walton (2013) 233 IR 335, 341 [22].

 13   Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

14 Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA [2013] FWC 4034 at [32].

 15   Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Resmed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152 at [32].

 16   The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [26].

 17   [2016] FCAFC 30 at [35]-[36].

 18   Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]-[23].

 19   Ibid.

 20   Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [25].

 21   Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23].

 22   Woodside Energy Ltd v The Australian Workers’ Union [2022] FWCFB 168.

 23   Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 42 IR 353.

 24   DCB (n 1) 33.

 25   Ibid 50.

 26   [2020] FWCFB 5321.

27 Ibid.

 28   Woodside Energy Ltd v The Australian Workers’ Union [2022] FWCFB 168.