[2016] FWCFB 916


Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
LCR Group Pty Ltd



Appeal against decision [2016] FWC 37 of Senior Deputy President Richards at Brisbane on 4 January 2016 in matter number AG2015/3647.


[1] On 19 January 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) applied for permission to appeal and appealed a decision of Senior Deputy President Richards issued on 4 January 2016 (Decision). 1 The Decision concerned a request by the CFMEU that the Senior Deputy President recuse himself from determining an application by LCR Group Pty Ltd (LCR Group) under s.210 of the Fair Work Act 2009 (FW Act) for approval of a variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (Agreement). After dismissing a number of the CFMEU’s objections to the agreement variation in a separate decision2, the Senior Deputy President dismissed the recusal application and directed the parties to file further submissions regarding the proposed variation.

[2] We heard the appeal on 10 February 2016 and gave an ex tempore decision. For convenience we reproduce that decision here:

[3] We now give our reasons in accordance with paragraph [3] of the ex tempore decision.

Factual Background

[4] The events which led to the recusal application the subject of the Decision may be summarised as follows. On 23 June 2015 LCR Group made an application to the Commission for approval of the variation to the Agreement. The substance of the variation was to remove a 5% wage increase provided for in the Agreement. The CFMEU, which was covered by the Agreement, opposed approval of the variation on the basis that the employees to whom the Agreement applied had not genuinely agreed to the variation in accordance with the requirements in ss.186(2) and 188(c) of the FW Act as applied to agreement variations by s.211(1). It also contended that there were serious public interest grounds for the variation not to be approved under s.211(1)(b). The CFMEU’s opposition to approval of the variation on these grounds was fully articulated in a written submission which it filed on 14 July 2015. The CFMEU did not advance any other grounds for the variation not to be approved at this time.

[5] The Senior Deputy President conducted hearings in relation to the CFMEU’s grounds of objection on 3 August, 1 September and 19 October 2015, and subsequently received further written submissions from the parties. In the course of its closing submissions, the CFMEU raised an additional point, namely that the variation could not be approved because no notice of employee representational rights (NERR) had ever been issued in relation to it. The Senior Deputy President then issued a decision on 10 November 2015. 3 The conclusions in that decision were as follows:

[6] It is important to note that the decision of 10 November 2015 disposed of all objections which the CFMEU had raised against the approval of the variation. There was no appeal lodged against that decision. Therefore what remained was for the Senior Deputy President to determine whether the FW Act’s requirements for approval of the variation were satisfied in circumstances where there was, at that time, no remaining dispute between LCR Group and the CFMEU about that issue.

[7] Shortly after this, there were ex parte communications with the legal representative (Ms Shae McCartney) of LCR Group, disclosed by the Senior Deputy President in the Decision in the following terms:

[8] It should be noted that in the Full Bench decision referred to in paragraph [12] of the extract above (Sustaining Works 4), it was determined that a failure to comply with the requirements concerning the signing of enterprise agreements in reg.2.06A of the Fair Work Regulations 2009 (FW Regulations), unless remedied by an amendment, meant that the agreement could not be approved by virtue of ss.185(2)(a) and 186(1) of the FW Act. In that case the applicant was permitted to rectify the problem by filing a re-signed copy of the relevant agreement,5 and once the Full Bench was satisfied that this had been done it confirmed the decision to approve the agreement.6 An equivalent requirement applicable to the approval of variations to enterprise agreements is contained in ss.210(2)(a) and 211(1)(a) of the FW Act and reg.2.09A of the FW Regulations.

[9] On 26 November 2015 LCR Group sent to the Commission an amended signature page for the variation to the Agreement together with a submission in which it was sought that the amendment be allowed under s.586 of the FW Act or alternatively that any irregularity in the variation be waived. This was copied to the CFMEU. The receipt of these documents by the CFMEU caused it to make inquiries of the chambers of the Senior Deputy President as to any communications that had occurred with LCR Group or its representatives. It was as a result of this inquiry that the ex parte communications with Ms McCartney were disclosed to the CFMEU by the Senior Deputy President’s Associate in an email dated 27 November 2015. In that email the CFMEU was also invited to provide any further submissions in relation to the approval of the variation it wished to make by 2 December 2015.

[10] In an email dated 2 December 2015 and addressed to the Associate to the Senior Deputy President, the CFMEU raised the issue of the ex parte communications and also raised an allegation that the General Manager of LCR Group, Mr Len Gillespie, had when attending the previous hearing before the Senior Deputy President claimed to have a personal association with him. The email stated: “In the light of the above, including the Gillespie claims, it may be necessary for his Honour to give consideration to recusing himself from this matter to avoid any potential for a reasonable apprehension of bias”. In a reply email sent the same day, the Senior Deputy President’s Associate stated that the Senior Deputy President had no recollection of any acquaintance with Mr Gillespie and did not intend to recuse himself from the matter.

[11] Some further correspondence ensued. The CFMEU ultimately pressed its application that the Senior Deputy President recuse himself on the basis of a reasonable apprehension of bias. Directions were made for the filing of the parties’ materials in relation to this application, and pursuant to these both the CFMEU and LCR Group filed written submissions.

[12] As earlier stated the Senior Deputy President issued the Decision, in which he declined to recuse himself, on 4 January 2016. The CFMEU lodged its notice of appeal against the Decision on 19 January 2016. On the same day it lodged an outline of submissions in respect of the variation approval application before the Senior Deputy President in which it contended, on the basis of Sustaining Works, that the failure by LCR Group to comply with the signature requirements of reg.2.09A meant that the variation could not be approved and that leave to amend under s.586 should not be granted.

The Decision

[13] Insofar as the CFMEU’s recusal application was founded on the ex parte communications, the Senior Deputy President’s conclusions in the Decision were as follows:

[14] The Senior Deputy President also rejected the recusal application insofar as it was based on the alleged association with Mr Gillespie on the basis that he had no recollection of any such association and that Mr Gillespie was unknown to him. 7

Grounds of appeal and submissions

[15] The CFMEU’s appeal against the Decision only challenged that aspect of it which related to the ex parte communications. Its grounds of appeal were that the Senior Deputy President erred:

[16] The CFMEU submitted that permission to appeal should be granted in the public interest because the appeal raised the important issue of the Commission acting, and being seen to act, free from bias and an issue of principle regarding when members of the Commission should recuse themselves due to a reasonable apprehension of bias. The CFMEU also submitted that the appeal would enable the Full Bench to clarify the circumstances (if any) in which it was appropriate for a member of the Commission to communicate with a party to a contested enterprise approval application on an ex parte basis.

[17] The CFMEU referred to the High Court decisions in Re J.R.L. ex parte C.J.L 8 and Webb v The Queen9 as establishing a general rule that any ex parte communication with a party about a substantive matter in dispute will give rise to a reasonable apprehension of bias. In relation to its first ground of appeal, the CFMEU submitted that the Senior Deputy President’s characterisation of the ex parte communications as merely involving a technical or procedural matter was wrong, since it in fact involved a substantive matter affecting the Commission’s capacity to approve the variation. In relation to the second ground, the CFMEU submitted that the reasonable observer would infer that the Senior Deputy President’s failure to disclose the ex parte communications was designed to keep them private, and would also infer from his waiver of any requirement to make a formal amendment application and his provision of the signature page from the Sustaining Works decision that the provision of a new signature page in equivalent form would be sufficient to address the Senior Deputy President’s concerns. These matters, taken together, would lead a reasonable and fair minded lay observer to consider that the Senior Deputy President might not bring an impartial mind to the determination of a substantive issue. This would be further compounded by the inference that would be drawn by the reasonable observer that had the CFMEU not made the inquiry which it did concerning whether there had been any ex parte communications with LCR Group, those communications would never have been disclosed. In relation to the third ground of appeal, the CFMEU submitted that in the circumstances described the Senior Deputy President erred in failing to recuse himself from any further involvement in the matter.

[18] LCR Group submitted in relation to the first ground of appeal that the CFMEU’s submissions were based on a flawed premise as to the “subject matter” of the communication, which was a straightforward invitation to consider a particular matter, did not deal with any matter of substance, and was no more than a procedural direction to consider and attend to a technical matter arising in the proceedings. LCR Group further submitted that the process of approving a variation was not an adversarial one such as to make the procedural course adopted by the Senior Deputy President other than appropriate, and indeed the approach taken by him was consistent with the requirements in s.577 as to how the Commission should exercise its functions. The CFMEU had no right to be heard in relation to the matter, but in any event the Senior Deputy President had made it clear that the CFMEU would be afforded a hearing in relation to the signature issue. In relation to the second ground, LCR Group submitted that the CFMEU did not establish how the ex parte communications gave rise to a reasonable apprehension of bias and instead simply asserted that the mere fact of the ex parte communications satisfied the two-step test for apprehended bias. In relation to the third ground, LCR Group submitted that the ex parte communications did not involve the expression of any view about whether the mandatory pre-approval steps had been satisfied, whether any defect could be corrected pursuant to s.586, or whether the Commission should exercise its discretion under s.586 to allow an amendment. In these circumstances the Senior Deputy President was correct not to recuse himself. LCR Group submitted that because there was no arguable case of error or any public interest ground attaching to the appeal, permission to appeal should be refused.


[19] We determined to grant permission to appeal in this matter because we considered that it raised important issues about the practice and procedure of the Commission concerning communications with parties in relation to extant proceedings.

[20] Section 577 of the FW Act establishes fundamental requirements concerning the manner in which the Commission performs its functions and exercises its powers. It provides:

[21] The requirement in paragraph (b) of s.577 for speed, informality and avoidance of technicality has led the Commission to adopt practices concerning communications between parties and the chambers of members which are more flexible than those which are usually applied by courts. This has extended to toleration in some cases of parties communicating directly with the chambers of members concerning substantive as well as procedural matters. However the requirements in paragraph (a) for fairness and justice and paragraph (c) for openness and transparency has meant that the irreducible minimum for such communications, when made in writing (as they usually should be), is that the correspondence must be copied to other persons participating in the proceedings or whose interests might be affected unless there is some special confidentiality requirement which needs to be accommodated. Where the communication is made by telephone, usually for reasons of urgency, the party initiating the communication should ensure that other interested persons are advised about it - preferably in advance, but at the very least as soon as possible after the communication has occurred.

[22] We consider that the same principles apply when the communication is initiated from the chambers of a member. Any written communication should be copied to the other persons participating in the proceedings or whose interests may be affected, unless there is a special confidentiality issue. On the rare and usually very urgent occasions when a member finds it necessary to initiate a telephone conversation with a party or the party’s representative, the member will either arrange for other parties to be informed by his or her chambers or request that the recipient of the communication undertake that task.

[23] In some matters before the Commission there may not be any “parties” other than the person applying to the Commission to exercise its powers and it may be difficult to assess which persons’ interests may be affected in such a way as to give them a legitimate expectation that they will be kept advised in relation to the matter. This is an issue which has arisen particularly in relation to the Commission’s function of approving enterprise agreements, where the extent to which relevant unions which are not bargaining agents have a right to be heard has proved contentious. 10

[24] In the matter before the Senior Deputy President, however, it was clear that the CFMEU had a legitimate right to be informed of any substantive development in relation to the variation approval application for two reasons. First, it was covered by the Agreement under s.183, and would continue to be covered by the Agreement as varied if the variation was approved. Second, it opposed the variation being approved and had participated in a previous contested hearing concerning the grounds of its opposition without apparent objection from LCR Group.

[25] In the Decision, the relevant part of which we have earlier quoted, the Senior Deputy President stated that the Commission would ordinarily identify to an applicant for approval of an enterprise agreement or a variation to an enterprise agreement any concern it has about non-compliance with a procedural or technical requirement, particularly where the applicant is not cognisant of the deficiency. That was undoubtedly a correct statement. However the communication of any such concerns would usually be done at a recorded hearing which other persons with a legitimate interest have an opportunity to attend, or in writing through a formal statement or by way of correspondence a copy of which is provided to all interested persons identifiable at the relevant time.

[26] In this case the Senior Deputy President took a different course. The mode of communication he initially adopted was by a personal telephone call from himself to LCR Group’s legal representative. As earlier stated, this would usually only be done in a rare and urgent case. We could not identify any urgent or other exceptional circumstances in this case which required this course to be taken. Having adopted this course, the Senior Deputy President did not then take steps to ensure that the CFMEU was informed of the telephone call, either by his chambers or by LCR Group’s legal representative. Nor was the subsequent email of 20 November 2015 immediately copied to the CFMEU. Disclosure only occurred later in answer to an inquiry made by the CFMEU.

[27] It is arguable that this course of action did not satisfy the requirement in s.577(c) for the Commission to be open and transparent in the performance of its functions and the exercise of its powers. Further, it had the unintended consequence that, because of the CFMEU’s recusal application which followed and this appeal, there was a delay of some months in the final approval of the variation to the Agreement. 11 This illustrates that irregular procedural steps intended to save time may have the opposite effect.

[28] However, the question that was before us was whether the ex parte communications between the Senior Deputy President and LCR Group’s legal representative gave rise to a reasonable apprehension of bias such as to require the Senior Deputy President to recuse himself from further dealing with the variation approval application.

[29] The general principles relating to disqualification for apprehended bias were usefully summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2), 12 and are, to the extent relevant to this case, as follows:

[30] The circumstances in which ex parte communications between a party to proceedings and a judge or a tribunal member might give rise to a reasonable apprehension of bias were discussed by the Federal Court Full Court in John Holland Rail Pty Ltd v Comcare 13 as follows:

[31] Although John Holland concerned a unilateral communication initiated by a party with a judge’s chambers and not the opposite situation here where the communication was initiated by the tribunal member, we nevertheless considered that the principle stated in John Holland was applicable. We therefore approached the issue on the basis that an ex parte communication, even about a substantive issue, would not automatically constitute a basis for a reasonable apprehension of bias, but it might do depending on the circumstances of the particular case. The two-step test in Ebner remained to be satisfied.

[32] While the simple fact of the ex parte communications might have been sufficient to satisfy the first step of the test, we did not consider, in relation to the second step, a fair-minded observer might perceive a logical connection between those communications and the possibility that the Senior Deputy President might not bring an impartial mind to the issue. We reached that conclusion for four reasons arising from the context and content of the communications:

[33] Consequently we concluded that the Senior Deputy President was correct not to recuse himself, and accordingly we dismissed the appeal.

al of the Fair Work Commission with the memeber's signature.



C. Massy of counsel with L. Tiley solicitor for the Construction, Forestry, Mining and Energy Union.

Y. Shariff of counsel with M. Demarco and S. McCartney solicitors for LCR Group Pty Ltd.

Hearing details:



10 February.

 1   [2016] FWC 37

 2   [2015] FWC 7311

 3   [2015] FWC 7311

 4   [2015] FWCFB 4422

 5   Ibid at [30]-[33]

 6   See PR571527

 7   Decision at [19]-[22]

 8   (1986) 161 CLR 342

 9   (1994) 181 CLR 41

 10   See e.g. CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [48]-[76]; CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [5]-[7]

 11   The variation was approved on 15 March 2016: [2016] FWCA 1633

 12   (2011) 202 FCR 439

 13   [2011] FCAFC 34; 276 ALR 221

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