Fair Work Act 2009
s.604—Appeal of decision

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

Appeal against decision [2022] FWC 2236 on 14 September 2022 and decision in writing on 21 September 2022 of Deputy President Binet at Perth in matter number B2022/530.

Introduction and background

[1] Woodside Energy Ltd (Woodside) has lodged an appeal, for which permission is required, against a decision of Deputy Present Binet on 14 September 2022 1 refusing to recuse herself from further dealing with matter B2022/530 on the ground of apprehended bias (recusal decision). The presiding member allowed Woodside to amend its notice of appeal in a decision2 issued on 26 September 2022 (stay decision). By this amendment, Woodside also appeals against a decision of Deputy President Binet issued by email on 21 September 2022 not to vacate existing directions in matter B2022/530 (vacation decision).

[2] Matter B2022/530 concerns an application made by the Australian Workers’ Union (AWU) on 3 June 2022 under s 236 of the Fair Work Act 2009 (Cth) (FW Act) for a majority support determination in respect of Woodside employees employed on three offshore gas platforms (MSD application). If granted, the MSD application would require Woodside to commence bargaining for a new enterprise agreement (proposed agreement).

[3] Section 237 of the FW Act applies to the determination of the MSD application:

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single‑enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(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.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.

[4] In its MSD application, the AWU contends that the majority support criterion in s 237(2)(a) is established on the basis of individually-signed petitions it had obtained from a majority of employees who would be covered by the proposed agreement. Some of the petitions were obtained using “DocuSign”, an online platform which facilitates the electronic signing of documents. The AWU indicated a preparedness to provide and, as outlined below, did in fact provide in response to the Deputy President’s subsequent directions, copies of the petitions to the Commission on a confidential basis. In its response to the MSD application filed on 6 June 2022, Woodside contended that the petitions do not constitute a reliable basis for satisfaction as to the majority support criterion in s 237(2)(a), including because the AWU obtained the petition signatures on the basis of false or misleading representations.

[5] On 29 June 2022 the Deputy President conducted a conciliation conference in relation to the MSD application, to no avail. On 30 June 2022, in response to the Deputy President’s indication during the conference that she was considering making “standard form directions” in the MSD application, solicitors for Woodside emailed the Deputy President’s chambers requesting that she take into account the following observations in considering any directions:

“1. Given our client’s concerns regarding the employee ‘petitions’, it does not consent to findings about the majority support criteria being based on evidence it has not seen. It seeks to see the evidence relied upon, so that it has a fair opportunity to run its case. We attempted to engage with the union yesterday about the DocuSign procedure that was apparently used, including the potential role of ‘certificates of completion’ generated by the software. These may have enabled the parties to discuss a means to provide the information required for our client to know the case against it, without identifying employees by name. Unfortunately the applicant was not prepared to engage in that discussion.

2. Our client will shortly file and serve the application for the production of documents which is foreshadowed in the Response. It will be accompanied by an affidavit. We will endeavour to do so before the end of next week.

3. Given the practical onus on the applicant to produce evidence enabling satisfaction [of] the relevant requirements, our client does not consider there to be any basis to depart from the usual approach to require the applicant to file its evidence and submissions, prior to materials being filed by our client.”

[6] On 12 July 2022 the Deputy President issued directions in the MSD application (directions). These directions relevantly provided:

“[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.

…

[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 [sic] 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[s] in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement.

…

[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. 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.”

[7] On 15 July 2022 Woodside filed a Form F52 application for production of documents (production application) seeking unredacted copies of the petitions and corresponding certificates of completion referred to in the MSD application, and copies of communications sent to employees referred to in the MSD application between 1 February and 1 July 2022 from Mr Doug Heath (an AWU employee), any person on behalf of the AWU, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) or the “Offshore Alliance”, including emails sent to employees’ private email addresses. These documents were sought in aid of Woodside’s case that the majority support criterion in s 237(2)(a) could not be satisfied on the basis of the petitions. The AWU opposed the production application. On 20 July 2022 the Deputy President issued a decision 3 refusing the production application (production decision). Relevantly for present purposes, the production decision contained the following passages:

“[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[n] 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.

…

[31] It is arguable whether each of the statements identified by Woodside are ‘fundamental and material misrepresentations’ as they allege. Furthermore, Woodside have provided no evidence that any Employee:

a. read the material posted on the Offshore Alliance Facebook Page or in fact the emails sent to them by Mr Heath;

b. was in fact [misled] by any of [the] information identified by Woodside as false;

c. that as a consequence of being misled executed a Petition and would not have executed a Petition had they not been misled.

[32] There are multiple bas[e]s upon which such an order is inappropriate:

…

d. That Employees chose to provide their personal email addresses rather than continue to communicat[e] via their work email indicates that they had concerns with their employer viewing the correspondence. It is not unreasonable for Employees to be apprehensive in circumstances where they intend to express a view contrary to their employer and the exercise of their statutory rights.

…

[36] To the extent that Woodside assert that Employees are not freely expressing their views, to the extent such evidence exists, Woodside can call witnesses to attest to this at the Hearing or tender evidence of the outcome of its own employee surveys.”

[8] On 21 July 2022 Woodside filed an appeal in relation to the production decision (production appeal) and, in its notice of appeal, sought a stay order. On 22 July 2022 the presiding member listed the appeal for hearing on 26 August 2022, and advised the parties that there was nothing to stay because the production decision did not result in any operative order or direction.

[9] On 25 July 2022 Woodside made an application for the Deputy President to recuse herself on the basis of a reasonable apprehension of bias which was said to arise from the directions and the production decision (recusal application). The Deputy President listed the recusal application for hearing on 30 August 2022.

[10] On 26 August 2022, a differently-constituted Full Bench refused permission to appeal in the production appeal and issued its reasons 4 for this decision on 2 September 2022.

[11] On 14 September 2022 the Deputy President issued the recusal decision, in which she refused the recusal application. On 16 September 2022 Woodside filed its notice of appeal in relation to the recusal decision.

[12] On 20 September 2022 the Deputy President extended the timeframes in the directions (extended directions). The timeframes extracted at paragraph [6] above were extended so that, relevantly, Woodside was required to file a confidential list of relevant employees employed in the period 22 April 2022 to 2 June 2022 with the Commission by 22 September 2022, and was required to file its submissions and evidence in response to the MSD application, including its view as to the approach by which the Commission should determine employee support, by 29 September 2022.

[13] On 20 September 2022 Woodside applied to the Deputy President for the vacation of the extended directions until the appeal of the recusal decision could be determined. The AWU opposed this application. On 21 September 2022 the Deputy President issued the vacation decision by email, in which she refused Woodside’s application to vacate the extended directions but granted Woodside an extension of time to file its list of employees until 23 September 2022.

[14] On 21 September 2022 Woodside filed an application to amend its amended notice of appeal to add an appeal against the vacation decision, and sought a stay of the vacation decision and the extended directions. In light of this, on 23 September 2022 the Deputy President extended time for Woodside to file its list of employees until 27 September 2022.

[15] On 26 September 2022 the presiding member conducted a hearing in relation to the stay application made in connection with Woodside’s amended notice of appeal. The presiding member issued the stay decision 5 on the same day, in which he allowed Woodside’s amendment to its notice of appeal, refused Woodside’s stay application, and ordered that the appeal be expedited so that it would be heard on 21 October 2022.

[16] On 10 October 2022, the Deputy President listed the MSD application for hearing for hearing on 8 November 2022. This hearing date was subsequently changed to 28 November 2022 to accommodate the convenience of Woodside’s counsel.

Decisions under appeal

Recusal decision

[17] In the recusal decision Woodside cumulatively relied upon eight matters which, it contended, 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 to the MSD application and its email of 30 June 2022;

(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.

[18] The Deputy President addressed each of Woodside’s eight grounds in turn. The first two grounds concerned paragraph [4] of the directions. Woodside contended that the first sentence of paragraph [4] was “incorrect as a matter of law” and gave rise to an inference that the Deputy President had reached a concluded view that the requirements in paragraphs (b), (c) and (d) of s 237(2) of the FW Act had been met. In relation to the second sentence, Woodside contended that it incorrectly excluded relevant considerations arising from a majority support determination such as the right to seek approval for protected industrial action, which might be relevant to the reasonableness assessment required by s 237(2)(d).  6 In response, the Deputy President said:

“[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.”

[19] The Deputy President went on to say, in summary, that having regard particularly to paragraph [8] of the directions a fair-minded lay observer could not understand the sentence to mean that she would not have regard to the submissions of the parties or had a concluded view on any matter relevant to the MSD application. 7

[20] Woodside’s third contention was that in respect of paragraph [8] of the directions, which provided for Woodside to file submissions before the AWU (contrary to the wishes of Woodside as stated in its 30 June 2022 email set out at paragraph [5] above) the Deputy President failed to give reasons both for her departure from the usual approach, and how Woodside was to prepare its submissions and evidence prior to seeing any evidence the AWU would rely upon or the AWU’s submissions in response to matters put in issue by Woodside. 8 In response, the Deputy President noted that parties in matters before the Commission often have different views as to the timing and content of material they should be required to file.9 The Deputy President considered that the AWU’s MSD application had already set out its view as to why the relevant FW Act criteria were satisfied, and directing Woodside to file material contesting the MSD application was, in the Deputy President’s view, the most expeditious manner in which to deal with the MSD application.10 Both parties had the opportunity to file materials pursuant to the directions which indicated they were not one-sided or unfair. The Deputy President further noted that at no time prior to filing the recusal application did Woodside raise any concerns about the directions or request an opportunity to file material in reply.11

[21] Woodside’s fourth contention concerned the Deputy President issuing the directions prior to Woodside filing the production application, which had previously been foreshadowed. 12 The Deputy President said that Woodside had been foreshadowing making a production application since 6 June 2022 and indicated in its 30 June 2022 email this would be filed within the week (i.e. by 8 July 2022). When no such application was made, the Deputy President said that she issued the directions in order to progress the matter and noted that this did not prevent Woodside from making any application for production (which it subsequently did on 15 July 2022).13

[22] Woodside’s fifth contention was that paragraph [6] of the directions (which set out the proposed approach by which the Deputy President would satisfy herself as to majority support) indicated that the Deputy President had already concluded that the AWU’s petitions would satisfy the requirement in s 237(2)(a) of the FW Act. 14 The Deputy President said in response that paragraph [6] of the directions described the approach as “proposed” and said that it should be read in the context of paragraph [8] which required Woodside to file submissions addressing “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”.15 The Deputy President said that the proposed method was the most commonly used method for determining majority support in applications made under s 236 of the FW Act and that directing parties to file the petitions and the list of employees before making a final decision on the method that would be used to determine majority support was consistent with Full Bench authority in INPEX Australia Pty Ltd v The Australian Workers’ Union (Inpex).16

[23] The sixth contention was that the Deputy President had reached a concluded view about the appropriate method for determining majority support because Woodside’s submissions pursuant to the directions were due on the same date as the petitions and the list of employees. 17 The Deputy President did not consider that this timing demonstrated any suggestion that the proposed method would be the one that was adopted, nor that any submission would not be considered by her. 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”.18

[24] The seventh contention was that, although paragraph [8] of the directions purported to give Woodside an opportunity to make submissions about the appropriateness of the petition method, paragraphs [20]-[23] of the production decision appear to demonstrate that the Deputy President had reached a concluded view as to that issue. 19 In response, the Deputy President said that she did not consider that those paragraphs, nor the production decision more broadly, demonstrated that she had reached a concluded view as to the appropriateness of the proposed method. This was particularly so in circumstances where the production decision dealt only with Woodside’s production application rather than the merits of the MSD application, and was issued at a time when Woodside’s deadline to file submissions in relation to the proposed method for determining majority support had not yet passed.20 The Deputy President did not consider that a fair-minded lay observer would reasonably apprehend from the production decision that she had reached a concluded view as to any element of the MSD application.21

[25] Woodside’s final contention was that, in the production decision, the Deputy President made adverse comments about the production application that were “illogical, unfair and without a proper basis”. Examples of this were paragraph [27], which stated that Woodside had provided no evidence to suggest that the petitions were fraudulently completed, and paragraph [31], which stated that Woodside had not provided evidence of employees who signed petitions being actually misled, notwithstanding that Woodside could not have known at that stage which employees had signed petitions and therefore from whom it could call relevant evidence of the kind identified by the Deputy President. 22 In rejecting this contention, the Deputy President noted that the fact that a decision-maker does not find in a party’s favour does not make the decision illogical or unfair or lacking a proper basis, and also that the production decision had been upheld by a Full Bench.23 The Deputy President considered that the paragraphs of concern related solely to the merits of the production application, were based on the submissions and evidence of the parties filed in relation to that application and did not preclude Woodside from filing further applications for production.24 The paragraphs also did not demonstrate that she had reached a concluded view as to the proposed method for determining majority support, and indeed the production decision stated that it was open to Woodside to propose an alternative method if it wished to do so.25

Vacation decision

[26] The vacation decision of the Deputy President was, as earlier stated, contained in an email to the parties dated 21 September 2022. The email relevantly stated:

“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 … 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.”

Appeal grounds and submissions

[27] The amended notice of appeal contains the following two grounds of appeal:

1. As to the Recusal Decision, the Deputy President erred in failing to recuse herself from hearing or otherwise dealing with proceedings B2022/530 other than by referring it to the President for allocation to another member of the Commission.

Particulars

(a) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President might not determine the proceedings in an impartial and unprejudiced way.

(b) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President had pre-judged the issue of whether the “threshold requirement” identified in paragraph [11] of Inpex Australia Pty Ltd v Australian Workers Union [2022] FWC 2236 was satisfied.

(c) The Deputy President erroneously failed to appreciate that the Deputy President had in fact pre-judged, in paragraphs [75]-[76] of the Recusal Decision, the issue of whether the “threshold requirement” was satisfied.

(d) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President had pre-judged the issue of what, if any, method would be appropriate to work out whether a majority of the Appellant’s employees wanted to bargain.

(e) The Deputy President erroneously failed to actively engage with and consider either or both of the following submissions made by the Appellant:

a. that the grounds on which the Appellant relied collectively, rather than each in isolation, gave rise to a reasonable apprehension of bias; and

b. that the Deputy President’s decision in Australian Workers’ Union [2022] FWC 1892 contained statements that were illogical, unfair and made without a proper basis.

(f) Insofar as the Deputy President dealt in [94] of the Recusal Decision with the argument referred to in Particular (e)(a), it was rejected without giving any reasons.

(g) Insofar as the Deputy President relied, in paragraphs [48] and [51] of the Recusal Decision, on the directions dated 12 July 2022 being ‘templated documents’ whose ancestry could ‘be traced back to Directions routinely issued by Members of the FWC prior to 2017’:

a. there was no evidentiary or other factual basis for those assertions;

b. neither issue was raised with the parties; and

c. these were, in any event, irrelevant considerations.

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.

[28] Woodside submitted that it is in the public interest for the Commission to grant permission to appeal because the decisions under appeal are attended by doubt, they raise issues of jurisdictional error and substantial injustice to Woodside may result should permission be refused.

[29] In respect of appeal ground 1(a), Woodside submitted that the “cumulative effect” of the eight grounds set out in its submissions below was that a reasonable apprehension of bias arose from paragraphs [4], [6] and [8] of the directions and paragraphs [21]-[23], [27], [31], [32(d)] and [36] of the production decision. The extant issues to which this apprehension of bias was said to relate were fourfold:

(1) whether the AWU had satisfied the “reasonable hypothesis” threshold requirement identified in Inpex 26 such as to justify the Commission proceeding any further;

(2) the reliability of the petition method of assessing majority support under s 237(2)(a);

(3) the appropriateness of the petition method; and

(4) whether the Commission could be satisfied as to the matters in s 237(2)(c) and (d).

[30] Woodside submitted that the Deputy President’s statements at paragraph [4] of the directions and paragraphs [21]-[23] of the production decision related to these extant issues, were expressed without qualification or doubt, could not properly be described as tentative, and were made before Woodside had provided its submissions and evidence pursuant to paragraph [8] of the directions. The “logical connection” required by the second step of the test in Ebner v Official Trustee in Bankruptcy 27 was satisfied because these matters would cause a fair-minded lay observer to apprehend that the Deputy President had formed a view in respect of the identified extant issues. It was submitted that the express invitation to provide written submissions and evidence in respect of these issues does not remove the impression created by the directions and the production decision that the clear views there stated might influence the Deputy President’s determination of those issues when making the final decision. Further, in the circumstances, a fair-minded lay observer would reasonably apprehend that following the provision of the written submissions and evidence, the Deputy President might not move her mind from the position reached and expressed by her in the directions and the production decision. It was immaterial that the statements that it alleged gave rise to a reasonable apprehension of bias were made in relation to interlocutory steps because, once an apprehension of bias existed, Woodside was not entitled to “stand by” until the final decision and, in addition, it was not necessary for Woodside to show any practical disadvantage or unfairness in order for its appeal to succeed, nor was it permissible to inquire whether the apprehension of bias has crystallised into a demonstration of actual prejudgment.

[31] Regarding appeal ground 1(b), Woodside submitted that the fact that the directions required it to file its submissions and evidence first would reasonably cause a fair-minded lay observer to form the view that the Deputy President was satisfied that the threshold requirement identified in Inpex was satisfied by the AWU’s Form F30 application. This was said to be the case notwithstanding that the Deputy President had not yet seen the petitions, Woodside had put the reliability of the petitions in issue, there had been no argument or opportunity for argument as to whether the threshold requirement had been satisfied, there had been no decision or finding as to the threshold requirement, and the AWU’s application did not address the reasonableness requirement in s 237(2)(d) of the FW Act.

[32] In relation to appeal ground 1(c), Woodside submitted that paragraphs [75] and [76] of the recusal decision show that the Deputy President erred in thinking that Woodside should file material as to whether the threshold requirement was satisfied, when in fact the AWU alone bore the onus of proof in this regard. As to appeal ground 1(d), it was submitted that the steps contemplated by paragraph [6] of the directions would reasonably cause a fair-minded lay observer to form the view that the Deputy President would implement and adopt the identified “proposed” method unless Woodside could persuade her that some alternative method should be adopted. This together with paragraphs [21]-[23] of the production decision had the effect of foreclosing arguments which Woodside may have made that a comparative exercise using material that is provided in a redacted form to one of the parties is never appropriate, that if the AWU was unprepared to provide the unredacted petitions to Woodside, then the threshold requirement identified in Inpex was not satisfied and the MSD application should therefore be dismissed.

[33] In relation to grounds 1(e)-(f), Woodside submitted that the Deputy President failed to engage in an active intellectual process with Woodside’s submission that the eight grounds on which the Applicant relied collectively, rather than each in isolation, gave rise to a reasonable apprehension of bias, and also did not engage with Woodside’s submission that the production decision contained statements that were illogical, unfair and made without a proper basis. In addition, Woodside submitted that there was no evidence for the assertion in the production decision that the directions were templated documents whose ancestry could be traced back to directions routinely issued by members of the Commission prior to 2017, and no such evidence was drawn to the attention of the parties. In any event, it was submitted, this was an irrelevant consideration, as a fair-minded lay observer would not be taken to know of the ancestry of the directions, assuming those antecedents exist.

[34] In respect of appeal ground 2(a), Woodside submitted that:

•  the Deputy President unilaterally made the extended directions notwithstanding the pending appeal against the recusal decision;

•  the extended directions did not fix a date for the hearing of the substantive application, but provided for the completion of all pre-hearing steps by 25 October 2022, in circumstances where the appeal was at that time listed for hearing on 22 November 2022;

•  the Deputy President made the vacation decision notwithstanding that the Commission’s first duty is to determine the question of its own jurisdiction before dealing with the substantive action;

•  in the usual case, the issue of jurisdiction should be determined as a preliminary matter;

•  the Deputy President made the extended directions and the vacation decision in circumstances where the AWU had not identified any, or any real, prejudice arising from a short stay of the proceedings pending the determination of the appeal from the recusal decision; and

•  a fair-minded lay observer, who would be taken to have knowledge of the earlier matters the subject of the recusal application, would reasonably form the view that the vacation decision indicated that the Deputy President might finally deal with the substantive application, adversely to Woodside, prior to the hearing and determination of the appeal.

[35] As to appeal ground 2(b), Woodside submitted that, in finding that the materials that it had been directed to file would be required to be filed regardless of which member of the Commission ultimately determines the substantive application, the Deputy President once again misunderstood the applicable legal principles as it would have been open for Woodside to submit before another member, and for another member to accept, the matters in identified in its submission in respect of ground 1(d).

Consideration

Ground 1

[36] We have decided to grant permission to appeal in relation to ground 1 of the appeal because it raises issues of sufficient significance to justify appellate determination.

[37] It is not in dispute that the correctness standard of appellate review applies to ground 1 of the appeal. Therefore, it is not necessary for us to analyse the Deputy President’s reasons in the recusal decision; the task is simply to determine whether the Deputy President was correct in determining that she was not disqualified from continuing to hear the AWU’s MSD application by reason of apprehended bias.

[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy. 28 In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.29 The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.30 It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.31

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be “firmly established”, 32 and a finding of apprehended bias is not to be reached lightly.33 Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.34 Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the “logical connection” required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.35 Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission36 apply:

“The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”

[40] Applying the above principles, we consider that the Deputy President’s recusal decision was correctly decided and that Woodside’s apprehended bias case is untenable for the following reasons.

[41] First, Woodside did not contend that any reasonable apprehension of bias arose in respect of the question required to be determined under s 237(2)(a) of the FW Act, namely whether a majority of its employees (at the time to be determined by the Commission) who would be covered by the AWU’s proposed agreement want to bargain. Rather, in respect of the first three of the four alleged issues concerning which an apprehension of bias was said to have arisen, Woodside’s case is premised on the proposition that it was necessary under s 237 for the Deputy President to determine, as a threshold matter of jurisdiction, whether the AWU had advanced a “reasonable hypothesis” of majority support. Woodside’s case went so far as to contend that the Deputy President was required to make an anterior determination about this purported threshold jurisdictional issue before taking any other action with respect to the MSD application and that, by reason of the impugned parts of the directions and the production decision, the Deputy President had given rise to a reasonable apprehension that she might not decide impartially Woodside’s case that no “reasonable hypothesis” existed because the AWU’s petition was unreliable.

[42] We reject the premise of Woodside’s submission. Section 237 does not establish any threshold requirement that a “reasonable hypothesis” of majority support must be found to exist prior to the Commission proceeding to determine the question arising under s 237(2)(a) (including the determination of a method of assessing majority support under s 237(3)). The expression “reasonable hypothesis” is not used in s 237 or in any provision of the FW Act relevant to majority support determinations or the whole subject of bargaining. Woodside submitted that the requirement arose as a matter of implication from the whole of ss 236 and 237, but advanced no submission, even when pressed on the matter, as to how the text of those sections gave rise to such an implication.

[43] In RFFWU Incorporated v Coles Supermarkets Australia Pty Ltd 37 (Coles Supermarkets) a Full Bench said the following in response to a submission that the Commission was required, once an application for a majority support determination was made, to undertake the task of determining for itself whether a majority of employees want to bargain:

“[14] … there is no merit to the proposition advanced in connection with the first appeal ground that s 237(2)(a), read with s 237(3), requires the Commission to take steps to determine for itself whether or not a majority of relevant employees want to bargain. The task of the Commission in respect of a majority support determination application is set out in plain terms in s 237(2): the Commission must determine whether it is satisfied as to the four matters specified, including that a majority of relevant employees want to bargain. If this state of satisfaction is reached, section 237(1) requires a majority support determination to be made. There is nothing in section 237 which requires the Commission to take any particular step in order to determine whether it has reached the requisite state of satisfaction. Section 237(3), as already stated, is plainly cast in discretionary terms, and it would do violence to the language of the provision to read it as requiring the Commission to take some positive step itself to “work out whether a majority of employees want to bargain”.

[15]  The discretionary character of s 237(3), as well as s 590(1), means that it will usually be open to a Commission member to determine whether they are satisfied in relation to s 237(2)(a) on the basis of the evidence and submissions put by the parties before the Commission. There may be a range of circumstances which might justify the exercise of the discretion in s 237(3) to order a ballot or some other means to assess the existence of majority support, including whether the applicant has advanced a “reasonable hypothesis” supported by evidence that majority support exists (see INPEX Australia Pty Ltd v AWU [2020] FWCFB 5321, 201 IR 424 at [11]), but no authority supports the conclusion that the s 237(3) is to be construed as compelling the Commission to exercise power under the provision merely because an applicant requests that it do so…”

(footnoted citation inserted in text)

[44] The above passage emphasises that s 237 does not require the Commission to take any particular step in determining the question arising under s 237(2)(a), and how it procedurally goes about that task (including under s 237(3)) is a discretionary matter. The notion of the existence of a “reasonable hypothesis” (or perhaps a prima facie case) is a discretionary matter which may inform whether a ballot or some other means should be ordered by the Commission to facilitate the determination of the majority support question under s 237(2)(a).

[45] The premise of Woodside’s case rests entirely on paragraph [11] of the decision in Inpex (referred to in the above passage from Coles Supermarkets), which stated:

“[11] We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that majority support exists with no proffered justification, may not be sufficient to provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon a premise that the bargaining representative applying for a determination has a reasonable hypothesis that there is majority support for bargaining. The materials before the Commission should bear out a reasonable foundation for such a hypothesis.”

[46] Even leaving aside the highly qualified way in which the above paragraph is expressed, we do not read the paragraph as identifying, in s 237, a jurisdictional prerequisite of the nature for which Woodside contends. The paragraph makes no reference to the text of s 237, and it was not understood as establishing the purported jurisdictional prerequisite by the Full Bench in Coles Supermarkets. In any event, this part of the decision is concerned with the different issue of the circumstances in which the Commission might properly order a ballot of employees under s 237(3) in response to a majority support determination application. That issue has not arisen in the matter before the Deputy President.

[47] Accordingly, we reject the premise of the alleged apprehension of bias with respect to the first three of the four identified issues. There is no threshold issue as to the existence of a “reasonable hypothesis” requiring determination, and thus no apprehension of bias could reasonably arise in relation to it.

[48] Second, Woodside did not contend before the Deputy President at any stage prior to the making of the directions or the production decision that it was necessary for the Deputy President to determine the existence of a “reasonable hypothesis” as to majority support as a threshold issue before taking any further action in respect of the MSD application. Woodside had certainly contended in clear terms that the Commission could not reliably be satisfied pursuant to s 237(2)(a) that majority support for bargaining existed on the basis of the petitions, but it did not suggest by reference to Inpex or otherwise that this contention related to some anterior determination that was required. For that reason, the fair-minded lay observer would not reasonably apprehend from the directions or the production decision that the Deputy President might determine any question of a “reasonable hypothesis” other than impartially in circumstances where there was no indication at the relevant time that this was in any sense a contested or “live” issue.

[49] Third, we do not accept that any of the impugned parts of the directions or the production decision might reasonably be read as indicative of possible prejudgment of any issue yet to be determined. In respect of the directions, they must be read as a whole. Critically, in paragraph [8] of the directions, the Deputy President allowed the opportunity for Woodside to file submissions generally in response to the MSD application, and specifically contemplated that the submissions would address the issue of the process or method of assessing majority support for the purpose of s 237(2)(a), as well as the “fairly chosen” and “reasonableness” issues arising for determination under s 237(2)(c) and (d) respectively. The fair-minded lay observer would appreciate that this indicates a willingness on the part of the Deputy President to hear and consider submissions from Woodside in opposition to reliance on the AWU petitions or the use of the petition method to assess majority support, and in relation to the “fairly chosen” and “reasonableness” issues, and would not in that context read any other part of the directions as indicative of a possible commitment to a conclusion about these issues already formed which is incapable of alteration.

[50] Even read in isolation, paragraphs [4] and [6] of the directions are not capable of reasonably being read as indicative of possible prejudgment on the petition issue or in relation to the “fairly chosen” or “reasonableness” issues. Paragraph [4] is an anodyne introductory statement and it verges on fanciful to suggest that it might be read as potentially conclusory as to any issue in contest. Further, as the Deputy President stated in paragraph [48] of her recusal decision, paragraph [4] was not crafted for the purpose of this case but rather is from templated directions. Woodside’s impertinent and disrespectful submission that the Deputy President was required to provide it with “evidence” of this is rejected. 38 The fair-minded lay observer might be taken to be aware that directions of this sort are usually standardised and, with that knowledge, would not read paragraph [4] as possibly directed towards anything specifically raised in Woodside’s case.

[51] Woodside submits that the statement in the first sentence of paragraph [4] of the directions is “wrong”, but the most that can be said about it is that it is perhaps incomplete as to the basis upon which a majority support determination is to be made under s 237. Even if it is “wrong”, paragraph [8] of the directions as earlier stated makes clear that the Deputy President understood the matters requiring determination under s 237(2) and the need to hear Woodside’s case as to those matters. Paragraph [6] merely sets out a method to deal with the MSD application by reference to the petitions on which it relies. The use of the word “proposed” to describe this method can only be read as indicating a provisional rather than a concluded view and, as earlier stated, paragraph [8] expressly confirms that Woodside will be heard as to this proposal. That paragraph [6] requires the parties to take steps to allow this “proposed” method to be put into effect if adopted could not reasonably be understood as potentially leading to an unalterable position with respect to any submissions that Woodside might file pursuant to paragraph [8].

[52] Woodside’s submissions concerning the production decision seek to wrench it out of its context. The parts of this decision upon which Woodside relies do not have as their purpose the advocacy or defence of the petition method of assessing majority support, as Woodside contends. Rather, they constitute the Deputy President’s reasons for refusing Woodside’s application to seek the production of documents which would disclose the identity of the employees who signed the AWU’s petition, and they would be understood by the fair-minded lay observer in this way. Thus, paragraphs [21]-[23] and [27] may only reasonably be read as explaining that the “Petition Method” (a defined term explained in paragraph [3] as referring to where the Commission “compare[s] the information contained in the Petitions with Employee identification information provided by Woodside”) is the most common mechanism used by the Commission in relation to applications for majority support determinations. The import of this is, clearly, that the production of the documents sought by Woodside would be contrary to this usual practice, which preserves the confidentiality of the employees’ identities. The citation of the decision in NUW v Lovisa Pty Limited 39 in paragraph [24] would make this pellucidly clear to the fair-minded lay observer, who would therefore not read these paragraphs as indicative of the possibility of prejudgment on the issue of the appropriate method for assessing majority support under s 237(2)(a). It might be added that the fair-minded lay observer would also be taken to be aware, from the directions, that the Deputy President was open to consider submissions in opposition to the petition method, and would read the production decision in this light.

[53] Similarly, paragraphs [31] and [32(d)] of the production decision may only reasonably be understood as responsive to Woodside’s submission, referred to in the directly preceding paragraphs [29] and [30], that the production of documents identifying the employees who signed the petitions was justified because of contentious representations concerning Woodside and bargaining made or allegedly made to the employees by the AWU or its officials. They constitute reasoning for the intermediate conclusion stated in paragraph [33]. Paragraph [36] simply observes that Woodside has the capacity to independently call evidence concerning whether the employees “are not freely expressing their views”. That Woodside considers this to be impractical or illogical does not mean that the paragraph might be understood as indicative of the possibility of prejudgment on the issue of the method to determine majority support.

[54] Accordingly, ground 1 of the appeal is rejected.

Ground 2

[55] We refuse permission to appeal in respect of ground 2 of Woodside’s appeal. Woodside accepted that, if appeal ground 1 failed, it could not establish a reasonable apprehension of bias on the basis of the vacation decision alone. Further, given that Woodside’s recusal case has failed (meaning that the determination of the MSD application will remain with the Deputy President) then, in the absence of any appeal against the making of the extended directions, there is no utility now in revisiting on appeal the vacation decision.

Orders

[56] We order as follows:

(1) Permission to appeal is granted with respect to ground 1 of the appeal, and is otherwise refused.

(2) In respect of ground 1, the appeal is dismissed

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747130>

Appearances:

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

Hearing details:

2022.

Sydney, in person with video link to Canberra:
21 October.

 1   [2022] FWC 2236

 2   [2022] FWC 2573

 3   [2022] FWC 1892

 4   [2022] FWCFB 168

 5   [2022] FWC 2573

 6   [2022] FWC 2236 at [32]

 7   Ibid at [49] and [51]

 8   Ibid at [32]

 9   Ibid at [54]

 10   Ibid at [57]

 11   Ibid at [59]-[60]

 12   Ibid at [32]

 13   Ibid at [63]-[67]

 14   Ibid at [32]

 15   Ibid at [70]-[71]

 16   [2020] FWCFB 5321, 301 IR 424 at [15]; ibid at [73]-[74]

 17   [2022] FWC 2236 at [32]

 18   Ibid at [79]

 19   Ibid at [32]

 20   Ibid at [82]-[84]

 21   Ibid at [85]

 22   Ibid at [32]

 23   Ibid at [88]

 24   Ibid at [89]-[90]

 25   Ibid at [91]

 26   INPEX Australia Pty Ltd v The Australian Workers’ Union [2020] FWCFB 5321, 301 IR 424 at [11]

 27   [2000] HCA 63, 205 CLR 337

 28   [2000] HCA 63, 205 CLR 337

 29   Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 30   Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 31   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J

 32   Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J

 33   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ

 34   Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

 35   British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]

 36   [2010] FCAFC 111 at [25]

 37   [2021] FWCFB 4414, 310 IR 130

 38   In any event, we have confirmed for ourselves that paragraph [4] appears in a standard way in directions issued by the Deputy President in respect of previous applications for majority support determination, and also in such directions issued by at least one other (former) member of the Commission.

 39   [2019] FWC 2571