Fair Work Act 2009
s.604 - Appeal of decisions

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

Introduction

[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:

“[1] We have decided to grant permission to appeal, because we consider that the circumstances of this case, which involved communications between a member of the Commission and a party which were not disclosed at the time to another party which had previously appeared in the proceedings, raises an important issue concerning the practice and procedure of the Commission.

[2] However we are not satisfied that there was any error in the decision of the Senior Deputy President the subject of the appeal not to recuse himself on the ground that there was a reasonable apprehension of bias.

[3] Accordingly the appeal is dismissed. We will provide full reasons for our decision in due course.”

[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:

“[124] Having considered the evidence in relation to this application I am of the view that the objections pressed by the CFMEU have not been made out and are dismissed.

[125] I will by separate decision deal with the further requirements of the application for approval of the variation of the Agreement.”

[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:

“[12] In respect of the claim that I should recuse myself for reasons of an improper communication with the legal representative of the Applicant, I disclosed on request of the CFMEU the totality of my interactions with the legal representative for LCR in the following terms:

“In order to expedite the further considerations in relation to the approval of the Agreement variation upon the CFMEU objections having been dismissed, the Senior Deputy President spoke directly with Ms McCartney by telephone on or about 16 November 2015 and advised that consideration should be given to the agreement signature requirements stipulated in the Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and another v Sustaining Works Pty Limited [2015] FWCFB 4422. At that time the Senior Deputy President advised that any changes would need to be copied to the CFMEU.

On or about 19 November chambers received a voice message from a colleague of Ms McCartney, asking whether, if the Applicant sought to amend the application (amend the signature page), such an application to amend needed to be ‘formal’/on a specific form or would a letter or similar be sufficient. A brief response to this query, as well as a copy of the signature page approved by the Full Bench in the above decision was directed to Ms McCartney from chambers on 20 November 2015.

A copy of that email, which again noted that if any amendment was sought it must be copied to the CFMEU, is attached.”

Ms McCartney’s response was received on 26 November, and was copied to the CFMEU for its consideration as required.

There have been no other communications with the representative of LCR […]”

[13] The email response referred to above (and as has been provided to the CFMEU) included the following words (from my Associate):

“Dear Ms McCartney

I refer to a message from Claire Duffield yesterday afternoon – if the employer seeks to amend the signature page/s, an explanatory ‘cover letter’ accompanying the amended page/s will be sufficient. The document/correspondence should be copied to the CFMEU at the time of filing with the Commission.

Also for reference, attached is an amended signature page, received by a recent Full Bench where the initial signature page was found to be not in accordance with the Regulations.

Kind regards […]”

[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 Commission will ordinarily bring to the attention of an applicant in relation to the approval of an agreement (be it an employer or a union) where it has potential concerns about a procedural or technical requirement such as the satisfaction of the signature requirements required under the regulations for an agreement, the absence of requisite forms, or incomplete documentation, or where applications and declarations are incomplete or missing.

[15] The Commission will do so where an applicant is not itself cognisant of the omission or deficiency, and with the intention of enabling an applicant to rectify a procedural omission or technical defect of a relevant kind prior to formal consideration. The Commission does not knowingly allow agreement applications, or other applications, to fail for reason of procedural omissions or technical deficiencies. The Commission conducts itself so not solely in relation to agreement approval applications but also in respect of all manner of other applications made under the Act; it does so to assist the parties in their engagement in the jurisdiction and to ensure delay is not incurred by technical omissions.

[16] In the current case, for example, the approval signatures included an abbreviated given name (“Rick” instead of “Richard”), which on the authority of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers' Union v Sustaining Works Pty Limited [2015] FWCFB 4422 may not meet the requirements of Regulation 2.06A(2) of the Fair Work Regulations 2009 (see PN 29-30).

[17] The applicant in this case filed an amended signature block (inclusive of the varied agreement in its totality) and copied the same to the CFMEU. The CFMEU was thereafter provided a period of time in which to make any further submission it wished to make in regards to the amended application for variation of the relevant agreement.

Conclusion in relation to ex parte communications

[18] Upon consideration of the authorities in the field as were put to me in relation to apprehended bias, and the circumstances in which a member of the court might interact in private with a party in adversarial litigation, it is not evident to me that the CFMEU, irrespective of its status in these proceedings, in any material manner has been denied procedural fairness, or that a fair minded observer considering the conduct of the Commission as disclosed in the particular context would form a view the Commission would not impartially assess the outstanding largely procedural issues in relation to the agreement approval process.”

[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:

(1) in holding that the subject matter of the ex parte communications was a procedural or technical requirement, rather than an element of the substantive matter for determination (ground 1);

(2) in holding that the ex parte communications would not give rise to a reasonable apprehension of bias in a fair minded lay observer (ground 2); and

(3) in failing to recuse himself from the matter in circumstances where he had ex parte communications with LCR Group about whether the mandatory pre-approval steps had been satisfied, whether the identified defect could be corrected pursuant to s.586 and whether the Commission should exercise the discretion conferred by s.586 to allow the application to be amended (ground 3).

[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.

Consideration

[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:

577 Performance of functions etc. by the FWC

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.

[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:

“[9] The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):

... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

[10] The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.

[11] In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
...
[15] These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

[16] Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
...
[23] However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.”

[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:

“[11] As initially propounded before us, John Holland’s argument apparently assumed (contrary to the analysis in relevant authorities) the existence of a general rule that any unilateral communication by a party with a judge’s chambers is a serious impropriety the acquiescence in which, by an associate, could give rise to a reasonable apprehension of bias in the judge.

[12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.

[13] In the course of argument, counsel for John Holland qualified the above submission, contending that a unilateral communication between a party (or practitioner) and judge’s chambers would give rise to a reasonable apprehension of bias, unless it were established by affidavit evidence (or, presumably, a similarly high degree of proof) that the unilateral communication related solely to procedural or practical matters. We return to this submission hereafter.
...
[22] As already stated, the authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge’s chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason: see, for example, Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540.

[23] On the other hand, save in the unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge’s chambers in relation to the substantive issues in the litigation. Every communication of this kind must be circulated to, or made in the presence of, the other parties (unless the other parties have previously consented to its unilateral communication to the judge: see Fisher at 352). Breach of that principle is not only an impropriety on the part of the party making the communication but may, in certain circumstances, found, or be a factor contributing to, a reasonable apprehension of bias, alternatively, lack of procedural fairness, on the part of the judge. It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland’s argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary by means of affidavit or a similar level of proof. In the present case, moreover, the mere fact that Comcare’s solicitor declined to make an affidavit setting out his conversation with the judge’s associate could not make out a case for apprehended bias that did not otherwise arise.”

[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:

(1) The Senior Deputy President had, at the time of the ex parte communications, wholly determined all the grounds of objection to the approval of the variation raised by the CFMEU. There had been no appeal from his decision in that respect. The CFMEU had not agitated any issue concerning the execution of the variation to the Agreement, despite it apparently having access to the application and constructive knowledge of Sustaining Works. Therefore, whether the subject matter of the ex parte communications was to be characterised as merely procedural or substantive in nature, those communications did not concern an issue then in contest between the parties. To that extent, no perception of partiality might reasonably arise.

(2) At no stage did the Senior Deputy President say anything to the effect that he would decide the signature issue, including any attempt to rectify the problem by way of an amendment, in a particular way. Nor did we consider that an implication to that effect might reasonably be drawn from what was said.

(3) The Senior Deputy President made it clear in the course of the communications with LCR Group’s legal representative that any application to amend in order to rectify the perceived signature problem would have to be copied to the CFMEU. That obviously implies that the Senior Deputy President intended to provide the CFMEU an opportunity to be heard in relation to the issue. Thus nothing was conveyed which might reasonably suggest that the signature issue would be resolved in other than an open process.

(4) The revised signature page which the Senior Deputy President sent to LCR Group’s legal representative could not be taken as expressive of his personal view as to what was necessary to resolve the problem, since there is no dispute that it reproduced what was done to satisfy the Full Bench in Sustaining Works. We did not consider that identification to a party of an approach or a proposition supported by the relevant Full Bench authority might reasonably be perceived as demonstrative of any impartiality.

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

VICE PRESIDENT

Appearances:

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:

2016.

Brisbane:

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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