Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decisions [2016] FWC 7936 and [2016] FWCA 8209 of Commissioner Riordan at Sydney on 15 and 18 November 2016 in matter number AG2016/3877; ex parte communications between Chambers of Commissioner and a party; whether denial of procedural fairness; permission to appeal granted; appeal upheld; decisions quashed; application remitted to another Member of the Commission to determine.

Introduction

[1] United Voice (UV) has applied for permission to appeal and appealed two decisions 1 of Commissioner Riordan issued on 15 and 18 November 2016 respectively, relating to the approval of an enterprise agreement titled the JBU Enterprise Agreement 2016 (Agreement) made by Broadspectrum (Australia) Pty Ltd (Broadspectrum) and certain of its employees. The first decision contains the Commissioner's reasons for concluding that the Agreement should be approved and the second decision is the formal instrument approving the Agreement.

Intervention application

[2] By correspondence dated 20 December 2016, the Transport Workers’ Union (TWU) applied for leave to intervene in the appeal in order to make a submission. UV supported the application, while Broadspectrum opposed the application for intervention. On 18 January 2017, the parties and the TWU were advised that the Full Bench determined to refuse leave for the TWU to intervene in the appeal to make a submission and that reasons for the decision would be published in conjunction with our decision on this appeal.

[3] In support of its application for leave to intervene, the TWU submitted that it would make submissions in relation to whether:

• the Agreement was genuinely agreed to by the employees who voted to approve the Agreement; and



• whether the Agreement was made with employees who at the time the Agreement was approved, would be covered by the Agreement.

[4] TWU submitted that it was in a position to assist the Full Bench because of its knowledge and experience in relation to the work in question. It was not suggested that UV did not possess such knowledge or experience.

[5] We consider that the submissions that the TWU proposed making if leave to intervene to make the submission were granted, would largely be a repetition of the submissions of UV. In particular, the TWU’s submissions in support of its application to intervene did not identify any additional argument that it proposed to raise which was not raised in the UV’s written submissions and, despite being invited to do so, the TWU did not identify any argument relevant to the grounds of appeal which could not be raised by UV.

[6] Submissions by a non-party to an appeal wishing to intervene which propose to duplicate and merely support the submissions to be advanced by a party on appeal are of little assistance to the Full Bench and as such do not provide a proper basis for the Commission to permit such submissions to be made by way of intervention or otherwise.

Appeal grounds

[7] In its notice of appeal lodged on 5 December 2016, UV raises two grounds of appeal.

[8] First, it is said that the Commissioner erred in failing to properly undertake the task mandated by paragraph 186(2)(a) of the Fair Work Act 2009 (Act) to be satisfied that the Agreement had been genuinely agreed by the employees covered by the Agreement. In essence UV contends that the employees who voted to approve the Agreement were not at the time covered by the Agreement because they were not then engaged by Broadspectrum in classifications or work covered by the Agreement.

[9] Secondly, it is said that the Commissioner erred in failing to properly undertake the task mandated by paragraph 186(4) of the Act to be satisfied that the Agreement did not contain any unlawful terms. Specifically, UV maintains that clause 24 of the Agreement is a term that provides a method by which Broadspectrum, as employer, may elect not to be covered by the Agreement in respect of particular employees.

[10] By its amended notice of appeal lodged on 23 December 2016, UV sought to add an additional ground of appeal concerning the refusal by the Commissioner to allow UV access to Broadspectrum's application and a statutory declaration filed in support of the approval of the Agreement. At the hearing of the appeal that ground together with the application to amend the notice of appeal were no longer pressed. 2 The application and statutory declaration were added to the Appeal Book.3

[11] We have found it unnecessary to determine whether permission to appeal should be granted and whether the appeal should be upheld by reference to the two grounds of appeal initially advanced by UV. Instead, we have decided to grant permission to appeal and to uphold the appeal on procedural fairness grounds based on previously undisclosed ex parte communications passing between the Chambers of the Commissioner and Broadspectrum which traversed material facts in dispute and appear to have had a material effect on the outcome of the application for the approval of the Agreement. To the extent necessary we grant permission to UV to amend its notice of appeal to include a ground concerning the ex parte communications. We have taken the unusual course of allowing the matter to be raised at the hearing of the appeal because the existence and extent of the communications and their impact on the decision to approve the Agreement was not known to UV until Broadspectrum filed its submissions on the appeal on 16 January 2017 (see below). Our reasons for that conclusion follow.

Consideration

[12] In order to appreciate the significance of the issue raised by UV, it is necessary first to set out some of the relevant chronology.

[13] The date on which Broadspectrum initiated bargaining for the proposed agreement was 6 June 2016. 4 That was the notification time for the proposed agreement. A notice of employee representational rights was given to the four employees (relevant employees) who were then employed and who it is said would be covered by the proposed agreement on 9 June 2016.5

[14] Each of the relevant employees who it is said would be covered by the proposed agreement provided Broadspectrum with a written instrument of appointment signed by the relevant employee appointing a bargaining representative. 6 UV was not a bargaining representative for the proposed agreement.

[15] On 16 June 2016, the relevant employees attended a meeting wherein a detailed presentation and explanation of the terms of the proposed agreement was given by representatives of Broadspectrum and a physical copy of the proposed agreement was provided to each employee. 7 On 24 June 2016, the relevant employees were sent by email attaching a notice of the proposed ballot, a copy of the proposed agreement together with copies of the awards which are incorporated into the proposed agreement, a summary of the proposed agreement and information about the proposed ballot prepared by a firm engaged by Broadspectrum to conduct the ballot to approve the proposed agreement.8 The information about the proposed ballot provided to the relevant employees was said to have included the time and place at which the vote was to occur and the voting method that would be used.

[16] A further summary of the proposed agreement was provided to the relevant employees by e-mail on 1 July 2016. 9

[17] Voting for the proposed agreement commenced on 4 July 2016 and concluded on 5 July 2016. 10 Three of the four employees who would be covered by the proposed agreement cast a valid vote and each of these employees voted to approve the proposed agreement.11 The Agreement was made on 5 July 2016.12

[18] Broadspectrum made an application to approve the agreement on 12 July 2016 and lodged with it the required statutory declaration in support of the application. Sometime after the application for approval was made, UV sought access to the application and the statutory declaration and also sought to be heard in relation to the application. 13 The application by UV for access to the initiating documents was refused,14 however the Commissioner convened a conference on 8 September 2016 at the conclusion of which he invited Broadspectrum and UV to provide written submissions in relation to the Agreement.15

[19] During the hearing before us, Broadspectrum suggested that the Commissioner's invitation to UV to provide written submissions was confined to the question whether UV should be heard. 16 However, Broadspectrum was unable to point to any material in support of its submission. Indeed, such material as is contained in the appeal book all points the other way. First, there is the first decision the subject of the appeal, wherein the Commissioner observes that "the parties were invited to provide written submissions in relation to the agreement" and that both "parties took up that opportunity".17 There is no suggestion in the first decision that the invitation to UV to make submissions was limited to whether it should be heard. Secondly, the submissions filed by UV and by Broadspectrum in response to the Commissioner’s invitation, address substantive issues concerning whether the agreement should be approved.18 Thirdly, the first decision the subject of the appeal, canvasses the substantive issues raised by UV in its submission.19 Fourthly, the oral submission made by Broadspectrum is inconsistent with Broadspectrum’s earlier written outline of submissions filed in the appeal wherein, correctly in our view, Broadspectrum submits that the “process undertaken by the Commission at first instance demonstrates” that UV “was allowed to make written submissions in relation to the proposed agreement”. 20 Fifthly, it is not altogether clear from the text of the first decision whether the Commissioner decided UV's application to be heard, but it is apparent that he took into account and dealt with the submission filed by UV on the broader question concerning the approval of the Agreement.

[20] The ex parte communications about which UV complains is identified in the written outline of submissions filed in the appeal by Broadspectrum, the relevant passages of which are set out below:

“17. The process undertaken by the Commission at first instance demonstrates this:
. . .

b. Subsequent to submissions by both United Voice and Broadspectrum, Commissioner Riordan decided to adopt the approach of Neptune Asset Intergity Services Pty Ltd.

c. In doing so, the Commissioner asked a series of further questions of Broadspectrum related to s.188(c) and other statutory approval requirements. These questions focused on ensuring that the employees would in fact be covered by the agreement, that the employees could not be characterised as managerial employees and that the employees had a stake in the agreement. This included the final correspondence of the Commissioner on the 8th of November, quoted in the 15th of November decision:

“Dear Mr Dixon,

Could you please confirm that the 3 employees who currently work in the JDU will remain in that business unit and be covered by the Agreement?

Sent on behalf of Commissioner Riordan”

Broadspectrum’s response:

“Hi Stevie,
Yes, that is the intention of the JBU management.”

18. Contrary to the appellant’s submissions at paragraph [49], the 8th of November correspondence allowed the Commissioner to not just distinguish the present matter from Construction Forestry Mining and Energy Union v Sparta Mining Services Pty Ltd, but also from KCL Industries. Unlike the precarious casual employment found in both Sparta and KCL Industries, the Commissioner was able to determine that the employees in the present matter did have a significant stake in the agreement in the sense that they were experienced correctional officers and likely to remain employed under the agreement for a significant period of time to come – rather than a transient workforce with a fleeting interest, the employees in this case had a career interest in the enterprise agreement. ” [Footnotes omitted] [Our underlining]

[21] The short communication referred to in the passage above is also referred to by the Commissioner in his first decision, 21 however, the full extent of the communication is not disclosed in the first decision and it only becomes apparent that there is other earlier correspondence because of the reference to the “final correspondence” in the submission extracted above. The full communication is set out chronologically below.

[22] On 21 October 2016, the following email was sent from the chambers of the Commissioner to Broadspectrum:

From: SMITH, Stevie [mailto:Stevie.SMITH@fwc.gov.au]
Sent: Friday, October 21, 2016 11:36 AM
To: Dixon, Courtney
Subject: AG2016/3877 - Application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

“Dear Mr Dixon,

I have a number of questions as a result of my analysis of the proposed Agreement:

1 - Could you please advise me where each of the three remaining employees who voted on the Agreement are placed on the classification structure. I have been unable to make this assessment due to a lack of position descriptors in the proposed Agreement.

2 - Under what instrument are the three employees currently being paid?

3 - Where are the three employees currently working? What tasks are they currently performing?

4 - Could you please explain what clause 26.1.3 means.

Sent on behalf of Commissioner Riordan” 22

[23] Three of the questions raised in the email in our view relate to matters raised by UV in its submissions to the Commissioner. The first three questions relate to whether the relevant employees genuinely agreed to the Agreement and whether the group was fairly chosen. These issues appear to have been raised directly at [15], [16], [50] and [51] of UV’s submissions to the Commissioner. 23

[24] Later that day, Broadspectrum sent an email to the Commissioner’s chambers as follows:

From: Dixon, Courtney [mailto:Courtney.Dixon@broadspectrum.com]
Sent: Friday, 21 October 2016 4:39 PM
To: SMITH, Stevie
Subject: RE: AG2016/3877 - Application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

“Hi Stevie,

Apologies for the delay, I have been out of the office in Melbourne today. I have responded to the Commissioner’s questions below – I haven’t put names to roles given privacy considerations United Voice still seeking involvement. If there is anything else please just let me know.

1 - Could you please advise me where each of the three remaining employees who voted on the Agreement are placed on the classification structure. I have been unable to make this assessment due to a lack of position descriptors in the proposed Agreement.

1 Prison Escort Transport Officer; 1 Correctional Officer; 1 Court Security Supervisor (resigned); 1 Correctional Supervisor Level 2. The composition of the initial workforce was based on the initial work requirements of the business unit (the establishment of the unit as well as the 2 bids in WA, 1 in SA, 1 in NSW). The Prison Escort Transport Officer was supervised by the Court Security Supervisor (both Perth based) while the Correctional Officer is supervised by the Correctional Supervisor.

2 - Under what instrument are the three employees currently being paid?

The employees are currently employed and paid on common law contracts of employment and the Corrections and Detention (Private Sector) Award 2010.

3 - Where are the three employees currently working? What tasks are they currently performing?

One was Brisbane based at the time of the vote. That employee is now Melbourne based. A second employee is also Melbourne based. The third current employee is Perth based. The fourth, who resigned, was Perth based as well.

As a new business unit, the 4 employees have been engaged in establishing the systems and processes that potential clients expect Broadspectrum to have in place. They have worked on drafting, compiling and reviewing policies and operating manuals to suit the day-to-day operational requirements of tender requirements of the client as well as those required legislative by the client. They have been involved with the technical requirements of Broadspectrum bids for WA Court Security and Custody Services, Wandoo (WA), John Morony Correctional Facility (NSW) and Mt Gambier (SA). In addition to the processes and procedures for handling persons in care (PICs), they have worked on rostering and staffing requirements, methods for maximising staffing efficiencies, ways of ensuring OHS compliance given the nature of the work. As Broadspectrum wins work they will be engaged in their roles on those contracts.

4 - Could you please explain what clause 26.1.3 means.

26.1.3 If in the circumstances the SGC legislation increases the contribution from 9.5% then the Parties will meet and discuss the issues surrounding the introduction of the higher SCG contribution.

Clause 26.1.3 is not intended to be inconsistent with or modify SGC legislation in any way. However, given the current regulatory uncertainty with superannuation, the clause has been included to reassure employees that we will consult with them on how any changes might need to be implemented (if any) in the future.” 24

[25] On 8 November 2016, the following communication by email passed between the Commissioner’s chambers and Broadspectrum:

From: SMITH, Stevie
Sent: Tuesday, 8 November 2016 8:05 AM
To: Dixon, Courtney (Courtney.Dixon@broadspectrum.com)
Subject: AG2016/3877 - Application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

“Dear Mr Dixon,

Could you please confirm that the 3 employees who currently work in the JDU will remain in that business unit and be covered by the Agreement?

Sent on behalf of Commissioner Riordan”

From: Dixon, Courtney [mailto:Courtney.Dixon@broadspectrum.com]
Sent: Tuesday, 8 November 2016 10:25 AM
To: SMITH, Stevie
Subject: Re: AG2016/3877 - Application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

“Hi Stevie,

Yes, that is the intention of the JBU management.

Courtney” 25

[26] Copies of these emails were added to the appeal book at the hearing of the appeal. 26

[27] It is apparent on the face of the email communications, the material in the appeal book and the first decision that:

• the emails were not shared with UV;


• the emails were exchanged after both UV and Broadspectrum had filed submissions following the Commissioner’s invitation to do so;


• the emails dealt with matters that were in contest;


• the information in the emails from Broadspectrum appears to form the basis of material factual findings made by the Commissioner. This was accepted by Broadspectrum at the appeal hearing; 27


• the email exchanges occurred after UV and Broadspectrum had filed submissions pursuant to the Commissioner’s earlier invitation;


• the email exchanges occurred before the Commissioner had made any decision about UV’s right to be heard or about the merits of the matters raised by UV in opposition to the approval of the Agreement; and


• UV was not advised of the matters contained in the email exchange, nor was it given an opportunity to respond to those matters.

[28] The issue of ex parte communications between the Chambers of a Commission Member and a party was recently considered by a Full Bench of this Commission in Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd (LCR Group). 28 The issue, as here, arose in the context of a disputed application to approve an enterprise agreement. In determining the issue, the Full Bench reasoned as follows:

“[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. 

[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. 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), 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 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. 29” [Endnotes omitted]

[29] The circumstances in the LCR Group case are different to those in this appeal in one material respect. In the LCR Group case, the CFMEU was given an opportunity to ask the Senior Deputy President to recuse himself on the ground of a reasonable apprehension of bias by reason of the ex parte communications. This was because the CFMEU learned of the ex parte communications in time to make such an application. That is plainly not the case here. Thus, although UV urged us to decide this aspect of the appeal on the ground of a reasonable apprehension of bias, we think it more appropriate in the circumstances to determine the issue on procedural fairness grounds. As the Full Court of the Federal Court in John Holland Rail Pty Ltd v Comcare observed in the passages reproduced above, ex parte communications and a failure to disclose them “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”. 30

[30] Although it is true that UV was not a party to the proceedings before the Commissioner in the conventional sense, it had nonetheless raised issues concerning the application by Broadspectrum for the approval of the Agreement and it had been given an invitation by the Commissioner to make submissions in relation to those issues. While engaging in the ex parte communications, the Commissioner does not appear to have made any decision about UV’s right to be heard or upon the merits of the matters raised by UV in opposition to the approval of the Agreement. We consider these circumstances give rise to a reasonable expectation on the part of UV, that it would at the very least be 'copied in ' on or otherwise informed of, communications passing between the Chambers of the Commissioner and Broadspectrum concerning the very matters about which it was agitating. Armed with knowledge of the ex parte communications, UV could have sought leave to reply to the matters raised. Alternatively, it could have applied to the Commissioner that he recuse himself from determining the application on the ground of a reasonable apprehension of bias. Neither course was available to UV because it had no knowledge of the communications. That in our opinion, is classically a case of a denial of procedural fairness.

[31] We do not suggest that the ex parte communications to which we have referred above were entered into deliberately in the sense that a deliberate decision was taken to exclude UV. It is just as likely explicable because of inadvertence. Nonetheless, the result is the same. As we have earlier observed, the ex parte communications were significant in that they directly addressed matters that were in contest and appear to have directly influenced factual findings made by the Commissioner in the first decision. UV was denied the opportunity to do anything about that.

[32] Put another way, the Commissioner and Broadspectrum engaged in the ex parte communications whilst UV’s application to be heard and grounds of opposition to the approval of the Agreement were the subject of extant proceedings. Had the Commissioner been satisfied of the matters raised by the questions the subject of the ex parte communications on the basis of Broadspectrum’s earlier submission, the need to ask the questions would not have arisen. It may therefore be inferred from the decision to approve the Agreement that the Commissioner took into account the answers given by Broadspectrum in the ex parte communications. That this is so is also apparent on the face of the first decision.

Conclusion

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

[34] For the reasons given, we uphold the appeal on procedural fairness grounds and we propose to quash the decisions and in the circumstances to remit the principal application to another member of the Commission to determine.

Orders

[35] We order that:

1. Permission to appeal is granted;
2. The appeal is upheld;
3. The decisions in [2016] FWC 7936 and [2016] FWCA 8209 are quashed; and
4. The application by Broadspectrum for approval of the Agreement is remitted to Deputy President Kovacic for determination.

DEPUTY PRESIDENT

Appearances:

Mr S Bull, for United Voice.

Mr C Dixon, for Broadspectrum.

Hearing details:

2017.

Sydney;

January 24.

 1   [2016] FWC 7936 and [2016] FWCA 8209.

 2   see transcript PN 298.

 3   see transcript PN 300 – PN 301 and PN 402– PN 404.

 4   AB 184L.

 5   AB 184I.

 6   AB 184D-184E.

 7   AB 184J-184K.

 8   Ibid.

 9   Ibid.

 10   AB 184L.

 11   Ibid.

 12   Ibid.

 13   [2016] FWC 7936 at [2] – [3].

 14   Ibid at [2].

 15   Ibid at [4].

 16   transcript PN 445.

 17   [2016] FWC 7936 at [4].

 18   AB273 – AB287 and AB290 – AB315.

 19   [2016] FWC 7936 at [8), [11] – [13], [28], [30] – [31].

 20   Broadspectrum – Outline of Submissions 16 January 2017.

 21   [2016] FWC7936 at [25] – [26].

 22   AB320 – AB321.

 23   AB275, AB281 – AB282.

 24   AB319 – AB320.

 25   AB322 – AB323.

 26   See Transcript PN 189- PN192, PN 205; AB319-AB323.

 27   See Transcript PN189 - PN190.

 28   [2016] FWCFB 916.

 29   Ibid at [20]-[31].

 30   John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [23].

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