Fair Work Act 2009
s.604 - Appeal of decisions

Woodside Energy Ltd
v
The Australian Workers' Union
(C2022/6360)

Appeal against decision [2022] FWC 2236 of Deputy President Binet at Perth on 14 September 2022 in matter number B2022/530

Introduction

[1] On 16 September 2022, Woodside Energy Ltd (Woodside) filed an appeal against a decision made by Deputy President Binet on 14 September 2022 1 to refuse Woodside’s application that she recuse herself from further dealing with matter B2022/530 on the ground of apprehended bias (recusal decision). Matter B2022/530 concerns an application by the Australian Workers’ Union (AWU) made pursuant to s 236 of the Fair Work Act 2009 (FW Act) for a majority support determination in respect of employees of Woodside employed on certain offshore gas platforms (MSD application). Woodside’s appeal did not seek a stay of the Deputy President’s decision or an expedited hearing. On this basis, the appeal was listed in the normal way for hearing on 22 November 2022.

[2] On 20 September 2022, the Deputy President extended time in respect of directions previously made by her on 12 July 2022 for the further progression of the MSD application (extended directions). The previous directions had effectively been deferred pending the determination of Woodside’s recusal application. Under the extended directions, Woodside is required to:

•  file a confidential list of relevant employees employed in the period 22 April – 2 June 2022 by 4:00 pm on 22 September 2022 (subsequently extended by the Deputy President to 23 September 2022);

•  file its outline of submissions in response to the MSD application “including but not limited to” a number of identified matters, and its witness statements and other evidentiary material upon which it relies, by 4:00 pm, 29 September 2022;

•  prepare and file, in conjunction with the AWU, an agreed statement of facts by 4:00 pm, 13 October 2022;

•  provide a copy of all the material filed pursuant to the directions to the relevant employees by 4:00 pm, 17 October 2022; and

•  file a statutory declaration confirming compliance with the directions by 4:00 pm, 24 October 2022.

[3] The AWU is also required, under the extended directions, to file its submissions and evidence by 4:00 pm on 6 October 2022. No further hearing date in respect of the MSD application has yet been listed by the Deputy President.

[4] On 20 September 2022, after the extended directions had been issued, Woodside applied to the Deputy President for the extended directions to be vacated and for the proceedings in respect of the MSD application to be stood over pending the determination of its appeal from the recusal decision. This application was opposed by the AWU. In an email sent to the parties on 21 September 2022, the Deputy President declined this application (vacation decision). The email relevantly stated:

“The Deputy President has considered Woodside’s application to have the Amended Directions vacated, and standing the matter over pending the determination of the appeal in C2022/6360 and the submissions of the AWU.

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

The Application was first filed on 3 June 2022. The determination of the Application has been delayed by various interlocutory proceedings – an unsuccessful application for production, an unsuccessful appeal in relation to the application for production and an unsuccessful application for recusal.

The only decision issued by the Deputy President to date has been upheld on appeal. The appeal decision dismissed with many of the contentions made in the recusal application.

The materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

In these circumstances the Deputy President does not propose to vacate the Directions and stand the matter over.”

[5] On 21 September 2022, after receipt of the above email, Woodside filed an amended notice of appeal in which it seeks:

(1) to add a second ground of appeal in relation to the vacation decision as follows:

2. As to the Vacation Decision, the Deputy President erred in failing to vacate the directions issued on 12 July 2022 and extended on 20 September 2022, and in failing to stand the proceedings over pending the hearing and determination of this appeal.

Particulars

(a) The Vacation Decision, either separately or taken together with the unilateral making of the directions issued 12 July 2022 and amended on 20 September 2022, gives rise to a reasonable apprehension of bias.

(b) The Deputy President erroneously found that the materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

and

(2) an urgent stay of the vacation decision.

[6] This decision concerns whether leave should be granted to allow the amendment to its notice of appeal sought by Woodside and whether a stay of the vacation decision should be granted. I conducted a hearing in relation to these matters earlier today.

Amendment to the notice of appeal and expedition of the hearing of the appeal

[7] The AWU opposed the application for amendment. It submitted that what was sought was not in truth an amendment to the existing appeal against the recusal decision but rather the lodgment of an additional appeal against the vacation decision.

[8] I accept that the course proposed to be taken by Woodside is procedurally unorthodox. However, I consider that allowing the amendment, as distinct from requiring Woodside to file a separate notice of appeal in respect of the vacation decision, would not cause any prejudice to the AWU or give rise to any other issue of substance. The AWU properly conceded this to be the case. Accordingly, I allow the amendment under s 586(a) of the FW Act.

[9] I raised with the parties at the hearing whether, if the amendment was allowed, it would be appropriate to expedite the hearing of the appeal. This course was embraced by Woodside and not opposed by the AWU. I consider that an expedited hearing, which would allow the appeal to be heard and determined by around the time that the timetable provided for in the extended directions is completed, would be appropriate in all the circumstances. In particular, it would allow the apprehended bias issue to determined prior to the Deputy President engaging in any further substantive decision-making step in relation to the MSD application. Accordingly, the hearing listed for 22 November 2022 is vacated, and the hearing will instead be listed for 21 October 2022.

Stay application

[10] Notwithstanding my indication of a preparedness to expedite the hearing of the appeal, Woodside pressed its stay application. The AWU opposed the grant of a stay.

[11] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill. 2 Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[12] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the appeal’s merits. This assessment is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3

[13] The application of the above principles is subject to the applicant for a stay demonstrating at the outset that there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal. 4

[14] It is necessary to say at the outset that I do not consider that the grant of the stay sought by Woodside would have any meaningful effect. Woodside submitted that it is possible for an order dismissing or refusing an application to be the subject of a stay; in that circumstance, the effect of the stay would be to restore any previously applicable orders or where, as in this case, there are no such orders, then to restore the status quo ante by bringing about a situation in which there are no operative orders. I reject this submission: the “status quo ante” existing prior to the making of the vacation decision was that the extended directions had been made and were operative. It seems to me that what Woodside seeks in substance is a stay of the entire proceedings before the Deputy President pending the hearing and determination of its appeal. I doubt that s 606(1) of the FW Act empowers this, for the reasons stated in CFMEU v Collinsville Coal Operations Pty Limited. 5

[15] In any event, I do not consider that a stay of the vacation decision should be granted, nor would I grant a stay of the proceedings before the Deputy President if I had the power to do so. I am prepared to assume that ground 2 of the amended notice of appeal, at least as particularised in paragraph (a), is reasonably arguable (including as to permission to appeal). However, I consider that the balance of convenience weighs decisively against the grant of a stay.

[16] The arrangement made for an expedited hearing of the appeal will, as earlier stated, ensure that the Deputy President does not engage in any further substantive decision-making step prior to a Full Bench having the opportunity to consider and determine whether the Deputy President is disqualified from further dealing with the MSD application on the ground of apprehended bias. That being the case, the issue of the balance of convenience turns only on whether Woodside should remain subject to the requirement to comply with the extended directions pending the determination of its appeal. In my view, there are strong reasons why it should remain under such a requirement. The AWU filed its MSD application on 3 June 2022, and the Commission would in the ordinary course endeavour to hear and determine such an application as expeditiously as possible consistent with:

•  its obligations under s 577 of the FW Act, including but not limited to paragraph 577(b);

•  that part of the object in s 3(f) of the FW Act concerning “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”; and

•  the object of Pt 2-4, Enterprise Agreements of the FW Act in s 171(a) “to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits”.

[17] Compliance with the extended directions pending the hearing of the appeal will have the benefit of ensuring that the MSD application is ready for hearing, or at least substantially ready for hearing, once the appeal is determined. This will be so whether the appeal fails, in which case the Deputy President will determine the MSD application, or the appeal succeeds, in which case the application will be determined by another member of the Commission. In this way the appeal will not operate to delay further the final determination of the MSD application, regardless of the outcome of the appeal.

[18] The only issues of prejudice identified by Woodside as arising in the event it remained subject to the extended directions were that:

(1) the submissions it has been directed to file would not deal with all the issues which it considered would arise; and

(2) the directions require it to “go first” (i.e. ahead of the AWU) in filing its evidence and submissions.

[19] The first matter is based upon a wrong premise. The relevant direction does not limit the matters which Woodside may raise and address in its submissions; rather it makes clear that the submissions must deal with, but need not be confined to, the specified matters. The second matter, to the extent that it has any substance at all, does not give rise to any irreversible prejudice that may not be cured by subsequent procedural steps to ensure a fair hearing.

[20] Because I consider that the balance of convenience weighs against the grant of a stay, Woodside’s application for a stay order is refused.

Orders

[21] I order as follows:

(1) The amendment sought in Woodside’s amended notice of appeal filed on 21 September 2022 is allowed.

(2) The application for a stay order in the amended notice of appeal is refused.

[22] An amended notice of listing and directions for the hearing of this appeal have separately been sent to the parties.

VICE PRESIDENT

Appearances:

I Neil SC and R Kumar of counsel for the appellant.
M Gibian SC for the respondent.

Hearing details:

2022.

Sydney via Microsoft Teams
26 September

Printed by authority of the Commonwealth Government Printer

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 1   [2022] FWC 2236

 2   [2000] AIRC 785, Print S2639

 3   Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]

 4   Construction, Forestry, Mining, and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

 5   [2014] FWC 4276 at [11]