DECISION

Fair Work Act 2009
s.483AA - Application for an order to access non-member records

Construction, Forestry, Maritime, Mining and Energy Union
v
Workpac Construction Pty Ltd T/A Workpac
(RE2018/707; RE2018/1109)

Application for access to non-member records – application for reallocation to another Member of the Fair Work Commission – consideration of matters not detailed by Full Bench – preservation of adjudicative independence of Members.

[1] On 15 June 2018, Mr Beau Seiffert, Organiser with the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application pursuant to s.483AA of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to make an order allowing Mr Seiffert, as a permit holder, to access non-member records held by Workpac Construction Pty Ltd T/A Workpac (Workpac). The Commission’s matter in respect of that application was given matter number RE2018/707.

[2] On 25 September 2018, Mr Seiffert made another application seeking similar orders to be made by the Commission pursuant to s.483AA of the Act in respect of Workpac. The Commission’s matter in respect of that application was given matter number RE2018/1109.

[3] Both matters were allocated to me for determination. Both matters relate to induction records of persons working at the ‘Gateway Upgrade North’ project in Brisbane (the GUN project) operated by Lend Lease Engineering Pty Ltd (Lend Lease).

[4] While Mr Seiffert made each of the applications, I shall, as a matter of convenience, refer to the CFMMEU as the applicant in this decision.

RE2018/707

[5] A conference between the parties regarding matter RE2018/707 was held before me on 23 July 2018. The following people were in attendance:

•  Mr Ashley Borg; Senior Industrial officer of the CFMMEU

•  Mr Howard Powell, National Group Manager Employee Relations, Workpac;

•  Mr Mitchell Teasdale, Senior Employee Relations Advisor, Workpac;

•  Ms Brooke Farrell, Workpac.

[6] On 30 July 2018, Mr Teasdale provided to the Commission and to the CFMMEU a spreadsheet of employees which, according to Workpac evidenced induction payments made by Workpac to past and present employees on the GUN Project.

[7] That matter was held in my chambers in abeyance following the conference of 23 July 2018. No further action was taken relevant to that application. On 12 April 2019 my Associate wrote to the parties as follows:

“Dear parties,

Reference is made to the above matter, which remains before Commissioner Hunt.

This matter has been held in abeyance in chambers since receipt of correspondence from Mr Mitchell Teasdale of Workpac on 30 July 2018. A copy of that correspondence is attached for the parties’ benefit.

It is noted that the application in this matter appears to be similar to the application in the matter of RE2018/1109, which remains before Commissioner Hunt and is listed for conference on 10 May 2019. Chambers asks that the CFMMEU informs chambers of whether it wishes to progress its application in the matter of RE2018/707 or whether this matter may be closed. [original emphasis retained]”

[8] No response was received from the CFMMEU. On 25 April 2019, Ms Liz Rakitovsky, National IR Operations Manager for Workpac wrote to my chambers (only) as follows:

“Dear Associate,

It is my understanding that this matter is identical to that which is listed for conference on 10 May 2019.

Can you confirm whether the CFMMEU has confirmed same?”

[9] On 26 April 2019 my Associate wrote to the parties as follows:

“Dear parties,

Reference is made to the above matter and to the below correspondence from Ms Rakitovsky. Chambers awaits the CFMMEU’s response as to whether it wishes to progress its application in the matter of RE2018/707 or whether that matter may be closed.”

[10] Without having heard from the parties, my Associate wrote to the parties again on 10 June 2019 as follows:

“Dear parties,

The Commissioner asks whether the application in the above matter is to be withdrawn given that the matter of RE2018/1109 is dealing with the same issues. Chambers asks that the Applicant confirms whether this matter is to be withdrawn by no later than 4:00pm Wednesday, 12 June 2019.”

RE2018/1109

[11] The application in RE2018/1109 was first listed for conference on 16 October 2018. Due to Ms Rakitovsky’s unavailability, the conference was rescheduled for 24 October 2018. I considered it appropriate that Lend Lease be included in the proceedings as the CFMMEU sought for Mr Seiffert, as the permit holder, to ‘enter the Lend Lease Gateway Upgrade North Project’ to inspect and make copies of relevant records.

[12] Lend Lease initially resisted, submitting that it was not a party to the proceedings. In correspondence dated 11 October 2018, my Associate informed the parties that it was my preliminary view that any orders made in the matter on the terms sought by the applicant may need to be made out [against] Lend Lease as well as Workpac to be effective.

[13] A conference between the parties regarding RE2018/1109 was conducted before me on 24 October 2018. The following people were in attendance:

•  Mr Seiffert;

•  Mr Dale Blackmore, Industrial Officer, CFMMEU;

•  Ms Rakitovsky;

•  Ms Farrell;

•  Mr Daniel Foster, Senior Industrial Relations Advisor, Engineering, Lend Lease.

[14] Following the conference of 24 October 2018 further correspondence passed between the parties and my chambers. As part of that correspondence, Workpac and Lend Lease produced to my chambers (only) documents setting out lists of employees that had completed worksite induction for the GUN project according to the records of Workpac and Lend Lease separately.

[15] Following receipt of those records, my Associate reconciled the information presented in both employee lists.

[16] On 11 December 2018, the following email was sent to the parties:

“Dear parties,

Chambers has reviewed the material provided by Workpac and LendLease in respect of the above matter.

Chambers has identified that there are 48 employees appearing in the employee list provided by Workpac that do not appear in the employee list provided by LendLease, and one employee appearing in the employee list provided by Lendlease that does not appear in the list provided by Workpac.

The list provided by Workpac set out the dates that employees had received payment for their time spent undergoing induction to the worksite/s relevant in this matter. The list provided by Workpac also commented upon certain employees and the nature of their engagement with Workpac. It is noted that Workpac made the comment of ‘Did not commence as an employee of Workpac’ in respect of 82 employees appearing in its list. Workpac did not for any of those 82 employees describe a date that payment had been made for undergoing induction on the relevant worksite/s.

It is noted that in providing its material to chambers, Workpac indicated to chambers that in the course of producing its employee list it had identified 41 employees that had not been paid for attending inductions. Workpac indicated that it had rectified those errors in payment. Workpac did not indicate which of the employees appearing in its list had received payment for worksite inductions following and as a result of the preparation of Workpac’s list.

The Commissioner seeks the Applicant’s views on the review conducted by chambers of the material provided by Workpac and Lendlease. The Commissioner invites the Applicant to provide its views to chambers by no later than 4:00PM AEST Tuesday, 18 December 2018.

Kind regards [original emphasis retained]”

[17] On 12 December 2018 and 18 December 2018, Mr Blackmore corresponded with the Commission and the other parties. The correspondence of 18 December 2018 invited Workpac to provide a response to the issues raised in the Commission’s reconciliation of the spreadsheets prior to ‘making any determination in respect of the application before the Commissioner.’

[18] On 18 December 2018 my Associate issued correspondence to the parties inviting Workpac to provide its response, and suggested that a further conference could be listed for early January 2019. I invited the parties to propose a time and date mutually agreeable to the parties for the further conference of the matter.

[19] Representatives of Workpac and Lend Lease expressed availability to attend a further conference from 7 January 2019. My Associate wrote to the parties on 9 January 2019 asking the parties to consider their availability for a further conference. No response was received.

[20] My Associate wrote again to the parties on 8 February 2019 seeking availability for a further conference. On 26 February 2019 Ms Rakitovsky sent correspondence to chambers and to the parties as follows:

“Dear Associate,

I refer to the above matter.

Despite attempts, the Respondent has been unable to make contact with the Applicant to ascertain its availability for a further conference. The Respondent and Lend Lease however are available on the following dates: week commencing 18 March 2019 (other than 20 March 2019), week commencing 25 March 2019 (other than 26 March 2019) and week commencing 1 April 2019.”

[21] On 26 February 2019, Ms Lill Frankow, Industrial Relations Administration Officer of the CFMMEU corresponded as follows:

“Dear Associate,

The CFMEU is available for a further conference, but the CFMEU are not in a position to meet through the month of April 2019.”

[22] Accordingly, on 27 February 2019 I listed the matter for conference on 27 March 2019.

[23] On 25 March 2019, the following correspondence was received from Ms Frankow:

“Dear Associate,

In respect to the below email dated 26 March 2019 [noting is should read 26 February 2019], in relation to the CFMEU and Mr Borg’s availability for further conference before 29 March 2019.

The CFMEU at this time request an adjournment as Mr Borg is now unavailable due to being on leave, at the time of this email Mr Borg will be available from 7 May 2019.

The CFMEU apologises to all parties for any inconvenience this may cause and hope the Commission are able to accommodate this late request.”

[24] My Associate wrote to the parties and advised that in light of Mr Borg’s leave, the matter could be relisted at 10:00am, 10 May 2019. All parties confirmed their availability for a conference on that date and time. The listing was then moved to 13 May 2019 to accommodate my diary.

[25] On 8 May 2019, Mr Borg corresponded as follows:

“Dear Associate,

I refer to the above matter.

Please be advised that, unfortunately, I will not be available to attend the conference listed for 13 May 2019.

In that vein, I refer to Mr Blackmore's correspondence of 18 December 2018, which I have attached to this email, and in which Mr Blackmore put a series of questions to Workpac.

I note that no response to those questions has been provided to the CFMEU to-date, however.

If answers to those questions can be provided to the CFMEU, we may then consider whether a further conciliation is necessary.

In default of any response, however, we would respectfully request that the matter be re-listed at a mutually convenient time in the week commencing 20 May 2019.”

[26] On 9 May 2019 my Associate wrote to the parties as follows:

“Dear parties,

The Commissioner has considered the below correspondence from Mr Borg.

The listed conference of this matter will be vacated. A notice of listing confirming the vacation of the conference will be issued shortly.

The Commissioner directs that Workpac provides a response to the CFMMEU’s correspondence of 18 December 2018. Workpac’s response is to be filed and served by no later than 4:00pm Friday, 17 May 2019.

After Workpac has provided its response as directed, the CFMMEU may write to chambers and the parties requesting a further conference of this matter if it considers a further conference is necessary.

Kind regards [original emphasis retained]”

[27] On 22 May 2019 my Associate wrote to the parties as follows:

“Dear parties,

The Commissioner has reviewed this matter further to Workpac’s correspondence of Friday, 17 May 2019.

Reference is made to the correspondence from chambers to the parties of 5:46pm Tuesday, 11 December 2018. That correspondence summarised the information gleaned by the Commissioner after reviewing Workpac’s and LendLease’s records provided during November 2018. That correspondence described that:

- There were are 48 employees appearing in the employee list provided by Workpac that do not appear in the employee list provided by LendLease, and one employee appearing in the employee list provided by Lendlease that does not appear in the list provided by Workpac;

- Workpac made the comment of ‘Did not commence as an employee of Workpac’ in respect of 82 employees appearing in its list;

- Workpac indicated to chambers that in the course of producing its employee list it had identified 41 employees that had not been paid for attending inductions. Workpac indicated that it had rectified those errors in payment. Workpac did not indicate which of the employees appearing in its list had received payment for worksite inductions following and as a result of the preparation of Workpac’s list.

Following Ms Rakitovsky’s correspondence of 17 May 2019 and in light of the continued difficulty in arranging a further conference of this matter, the Commissioner has reviewed the records provided by LendLease to chambers only on 18 December 2018 against Workpac’s records and LendLease’s own records provided to chambers only during November 2018.

LendLease’s correspondence of 18 December 2018 was not provided to the CFMMEU as the records enclosed with that correspondence included the identity of employees. However, it is noted that in the covering email to LendLease’s records stated the following regarding the discrepancies between its own and Workpac’s employee lists:

“1. The Gateway Upgrade North Project upon commencement utilised a manual method of induction record keeping. A Safety and Induction record keeping system (3D Safety) was implemented in February/March 2016 and undertook a period of transition until the end of 2016 to move from the manual system to the 3D Safety system. Some workers omitted from the report provided on 14 November 2018 were contained on the manual register and had erroneously not been transferred to the 3D Safety system during this transition period. This has now occurred and these workers are included in the attached report.

2. The report provided on 14 November 2018 listed only currently “active” Workpac workers within the project’s induction recordkeeping. Workers listed as “inactive”, being persons who have been marked by their Employer as having ceased employment on the project, have now been included in the attached revised report.”

After reviewing LendLease’s further records, the Commissioner’s preliminary view is that:

- There are seven employees appearing in Workpac’s list that do not appear in LendLease’s list and five employees appearing in LendLease’s list that do not appear in Workpac’s list;

- There are six employees across both lists that have very similar but not identical names to employees appearing in the other list. The Commissioner is unable to state with certainty that these similarly named employees are the same people, but considers it highly likely that they are the same.

The Commissioner awaits the CFMMEU’s views following Ms Rakitovsky’s email of 17 May 2019, including whether the CFMMEU considers a further conference of this matter is necessary.

Kind regards [original emphasis retained]”

[28] On 10 June 2019 my Associate wrote to the parties as follows:

“Dear parties

Chambers has not received any correspondence regarding this matter further to the below correspondence of 22 May 2019. The Commissioner invites the Applicant to advise if a further conference of this matter is required. If not, does the Applicant wish to withdraw its application in this matter?”

Request by CFMMEU for reallocation

[29] In reply to the correspondence from the Commission to the parties dated 10 June 2019 in each of the matters, on 11 June 2019 the CFMMEU wrote to my chambers as follows:

“Dear Associate,

I refer to the above matter and matter RE2018/1109.

We thank the Commissioner for having conciliated these matters.

In accordance with the principles set out by the Full Bench [2019] FWCFB 3855 at [40] to [52], we respectfully request that the matters be remitted to the Panel Head for reallocation and determination.

I have copied this correspondence to the Chambers of the President for his information.”

[30] On 11 June 2019 my Associate wrote to the parties as follows:

“Dear parties,

The Commissioner has reviewed the below correspondence from the Applicant regarding the matters of RE2018/707 and RE2018/1109.

The application in RE2018/707 was made almost 52 weeks ago, with the last conference involving the Commission having been conducted on 23 July 2018. The application in RE2018/1109 made 38 weeks ago, with the last conference involving the Commission having been conducted on 24 October 2018, with some further progressive discussions occurring into December 2018. Discussion of the dispute that is the subject of these matters has essentially stalled since December 2018.

Chambers has corresponded with the parties on several occasions regarding the progression of these matters. The most recent emails from chambers of Monday, 10 June 2019, requested that the Applicant confirm in respect of each of these matters whether one or both of its applications were to be progressed through a further conference between the parties or whether one or both of the applications were to be withdrawn.

The Commissioner’s view is that the conciliation of these matters is not complete and discussions regarding these matters have not yet progressed to a point where either of these matters are capable of arbitration. The below correspondence does not address the questions put to the Applicant regarding the further progress of these matters in the correspondence from chambers of Monday, 10 June 2019.

The Applicant is directed to confirm which matters it presses. For any matters pressed, the Commissioner will convene an in-person conference at the earliest available opportunity.

Kind regards”

[31] The CFMMEU sent further correspondence on 11 June 2019 setting out its position with respect to these matters as follows:

“Dear Associate,

We acknowledge receipt of your correspondence.

We do not withdraw these matters, and have requested they be remitted to the Panel Head for re-allocation in view of having the matters arbitrated. It follows that we press the matters, but decline to participate in any further conciliations before the Commissioner, which you rightly point out have been protracted.

We are not aware of any requirement to conciliate these matters at all, let alone any further, and consider that we have been generous in this regard.

Whether these matters are capable of arbitration may be a matter for the arbitrating member to consider.

It would be inappropriate for such a decision to be made by the conciliating member.

I have copied the President’s chambers into this correspondence.

Yours faithfully,

Ashley Borg

Senior Industrial Officer [emphasis retained]”

[32] Following the CFMMEU’s correspondence I indicated to the parties that I intended to arbitrate these matters and I set directions for each party to file material relevant to the applications in these matters and listed these matters for hearing of the substantive applications. I also indicated that if the CFMMEU required a hearing of whether these matters should be re-allocated to another Member of the Commission it may file submissions in support of that issue and that discrete issue would be listed for hearing before me.

[33] On 13 June 2019 the CFMMEU wrote to my chambers and indicated that while it pressed its application for these matters to be reallocated to another Member of the Commission, it requested that my directions regarding the present matters be vacated until I issued my decision in respect of the unrelated matter of C2018/6736.

[34] On 14 June 2019 I refused the request to vacate the directions. The hearing on whether I should decide to have the matter reallocated was set for 18 June 2019.

Hearing

[35] The CFMMEU’s application for these matters to be reallocated was heard before me in Brisbane on 18 June 2019. Mr Borg appeared for the CFMMEU at the hearing. Mr Toby Walthall, Senior Associate, Minter Ellison was granted leave to appear on behalf of Workpac. Lend Lease did not appear at the hearing and did not file submissions regarding the CFMMEU’s application for reallocation.

CFMMEU’s submissions prior to hearing

[36] The CFMMEU filed written submissions prior to the hearing of 18 June 2019. The CFMMEU’s submission relies in large part on the observations of Full Bench in CFMMEU v Watpac Construction Pty Ltd (Watpac). 1 It is helpful to extract the Full Bench’s observations in Watpac here:

“[33] However we wish to make the following observations.

[34] For many years, the Conciliation and Arbitration Act 1904 (Cth) contained s.22(2), which provided that a Member of the Commission who had conciliated an industrial dispute could not arbitrate that dispute if a party to the arbitration proceedings objected. This enabled a party to object to a given arbitrator if it thought that the arbitrator might have formed an opinion in the conciliation proceedings which could prejudice its case in arbitration.

[35] The 1985 Australian Industrial Relations Law and Systems: Report of the Committee of Review (the Hancock Report) considered whether that provision should be retained. It concluded that:

‘…the right of objection should be retained. …we do not agree with the view that parties should have a choice of arbitrator; but we think it fundamental that a party should be able to object to having its case arbitrated upon by a person who, by reason of his earlier involvement in conciliation proceedings, may have formed an opinion which is prejudicial to its case. We understand Sir John Moore’s point that conciliation and arbitration cannot, in practice, be put neatly into separate boxes but… the processes are distinctive and need to be expressed as such in the legislation.’

[36] The provision was retained in the Industrial Relations Act 1988 (Cth) (IR Act) as s.105. It remained unchanged through all the various iterations of the federal industrial and workplace relations legislation until the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). At that time, most of the specific provisions governing the role of the Commission in the conciliation and arbitration of industrial disputes were removed.

[37] The current FW Act does not contain provisions equivalent to s.105 of the IR Act. The role of the Commission in dealing with disputes that arise under DSPs is dealt with in s.739. That provides as follows:

‘739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.’

[38] This section mainly sets the scope of the Commission’s jurisdiction with regard to disputes under DSPs. It says little about how the Commission should deal with such disputes. For that, one must look to certain provisions of Divisions 2 and 3 of Part 5-1 of the FW Act, which deal with the establishment and functions of the Commission and the conduct of matters before it. These include the requirements in s.577 for the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.

[39] While the provisions of s.105 of the IR Act no longer form part of the FW Act, the public policy considerations underlying those provisions remain relevant. In particular, there are good reasons why it will often be inappropriate for a member of the Commission to arbitrate a matter where he or she has previously been involved in conciliation proceedings about the same matter.

[40] While the circumstances of this case focus on comments made by the Commissioner which allegedly gave rise to a reasonable apprehension of bias, a number of concerns can arise where a member of the Commission arbitrates a matter after having been involved in conciliation. This is so even where the member has given no indication of any view he or she may have formed. It would be common, for example, for conciliation proceedings to include offers and counter-offers by parties to settle a matter. Even if the member makes no comment about any such offer or counter-offer, it is conceivable that a member who subsequently has to arbitrate a matter might be influenced by being aware of the content of such negotiations.

[41] Similarly, parties may be willing privately to concede points in conciliation that they would not be willing to concede in an arbitration. Again it is conceivable that knowledge of any such concession might influence a member who subsequently has to arbitrate the matter.

[42] During conciliation conferences, members also commonly have private discussions with one party in the absence of the other. While this is often a very effective mechanism in helping resolve matters by consent, it also means that the absent party does not know what has been said in any such discussion.

[43] These are just some of the considerations that might make it inappropriate for a member to arbitrate a matter that he or she has conciliated.

[44] It is not just a matter of avoiding a reasonable apprehension of bias. Conciliation is a vital function of the Commission. Indeed, most disputes referred to the Commission under the terms of a DSP are resolved by conciliation. Not only is this often the parties’ preference, but it is also consistent with the Commission’s general obligation to promote harmonious and cooperative workplace relations.

[45] It is essential for the proper functioning of the Commission that parties feel they may speak openly in conciliation, either in plenary session or in private with the member, without fearing that what they say might subsequently adversely affect their interests in arbitration if the matter does not settle. That is one reason why conciliation proceedings are confidential and not recorded.

[46] This is not to say that there will not be cases where the parties themselves prefer a matter to be arbitrated by a member who has been involved in conciliation. However, either party should be free to object to a member subsequently arbitrating a matter which he or she has conciliated.

[47] In our view, once a party to a dispute objects to a member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration. This is particularly the case where the member has participated in private discussions separately with the parties in conciliation, the member has expressed views in conciliation about the merits of the dispute, the member has been made aware of without prejudice settlement offers made in conciliation, or one or more parties have made concessions in conciliation which they are not willing to make in a subsequent arbitration.

[48] This can occur without holding the sort of recusal hearing the Commissioner conducted in this case. We note that such hearings are fraught with difficulty.

[49] First, such hearings pose obvious evidentiary challenges. Conciliation proceedings are not recorded, for good reasons. This means, as in this case, that the member has to make findings on what he or she has said or done, based largely on personal recollection.

[50] Perhaps even more fundamentally, such hearings run the risk of undermining the effectiveness of the conciliation process. Hearings such as the one conducted by the Commissioner inevitably expose in open court the content of supposedly private and confidential discussions designed to settle matters by consent. The risk that such a hearing might occur has the potential to discourage the parties from being frank and open in conciliation. This is clearly undesirable from a public policy perspective.

[51] In relation to the matter currently under appeal, it follows that once the Commissioner had finished conciliating the matter (and assuming the matter did not settle), it would be preferable, in our view, for another member of the Commission to conduct any arbitration, including the resolution of any jurisdictional questions.

Conclusion

[52] Because of the important issues these appeals raise in relation to public policy and the Commission’s practices, we grant permission to appeal in relation to both matters. We dismiss the appeals against the Commissioner’s decisions not to recuse herself and refer the dispute back to the Commissioner. We would encourage the Commissioner however to have regard to the observations we have made in considering whether it would be preferable to arrange for the matter to be reallocated to another member of the Commission for arbitration. [original emphasis retained; footnotes removed]”

[37] The CFMMEU submitted that the Full Bench had elucidated fundamental concerns it has held going to the integrity and efficacy of the conciliation process. The CFMMEU noted the Full Bench’s observation at paragraph [45] that “It is essential for the proper functioning of the Commission that parties feel they may speak openly in conciliation, either in plenary session or in private with the member, without fearing that what they say might subsequently adversely affect their interests in arbitration if the matter does not settle.” 2

[38] The CFMMEU referred to the Full Bench’s observations that, “…where a member of the Commission continues to hear a matter following conciliation over the objection of a party, it has the tendency to diminish the confidence of parties and to undermine the conciliation process itself…” 3 and submitted that the confidentiality of the conciliation process is fundamental to the efficacy of that process, which may be undermined where the conciliating Member goes on to arbitrate a matter.

[39] The CFMMEU noted the Full Bench’s observations at paragraph [47] of Watpac and submitted in light of those observations that I had had ‘extensive involvement’ in conciliating these matters over 52 weeks (for RE2018/707) and 38 weeks (for RE2018/1109) and I had expressed a view that conciliation of these matters is not complete and neither matter has progressed to a point where it is capable of being arbitrated.

[40] The CFMMEU submitted that it was concerned that I was “…intent on controlling the outcome of the matters, including through her insistence on conciliating the matters or through not allowing the matters to progress to arbitration in a manner that is consistent with the principles set out by the Full Bench.” 4

[41] The CFMMEU submitted that the Full Bench in Watpac had “…articulated a principle of general application which exists independently of the jurisprudence on reasonable apprehension of bias”. 5

[42] Whilst noting that I was not bound to follow the general principle that was in the CFMMEU’s submissions distilled by the Full Bench in Watpac the CFMMEU submitted that it is appropriate that I, as a single Member of the Commission, should follow the approach preferred by the Full Bench in Watpac to ensure consistency in the Commission’s approach and on the basis that there no sound reason arises in these matters as to why I should depart from the approach preferred by the Full Bench. 6

Workpac’s submissions prior to hearing

[43] Workpac filed short written submissions prior to the hearing of 18 June 2019. Workpac submitted that it took a ‘neutral’ position in respect to the CFMMEU’s request for these matters to be reallocated to another Member of the Commission for arbitration.

[44] Workpac disagreed with the CFMMEU and submitted that the Full Bench’s decision in Watpac does not set out a general principle that Members of the Commission must reallocate matters which they have conciliated and where one party later requests that a matter be heard by a different Member.

[45] Workpac submitted that the Full Bench in Watpac identified particular factors which a Member should consider if a party requests that a matter be reallocated to another Member, yet it remains a matter of the particular Member’s discretion whether a matter should be reallocated having regard to the scope of conciliation that has taken place and the matters in addressed in conciliation in a given matter.

[46] Workpac referred to paragraph [47] of the Full Bench’s decision in Watpac and submitted that the issues identified by the Full Bench therein had not arisen in the present matters.

Oral submissions at hearing

[47] In oral submissions Mr Borg submitted that the two matters had been “extensively conciliated.” He suggested that, using a colloquialism, I was “up to my eyeballs” in conciliating the matters.

[48] Mr Borg submitted that the conciliation of the matters were private and confidential and without prejudice.

[49] Relevant to the CFMMEU correspondence of 11 June 2019, observing that there was no requirement for conciliation, Mr Borg stated that the CFMMEU did not think it could confidently participate in further conciliation of the matter before me if I had an intention of ‘holding’ on to the matter for arbitration. In order to ensure the CFMMEU’s rights to natural justice, procedural fairness, and the matters remaining confidential, the CFMMEU would need to be satisfied that I would not arbitrate the matter.

[50] Mr Borg submitted that there is effectively no substance between a conference and conciliation. He stated that the conferences had not been a mention; they were conciliations, and he did not wish to get caught up in the semantics. He considered that they were conciliations in every respect. When I pointed out to Mr Borg that he had not been present at the second conference, he stated that he was of the view that the conference was “a conciliation, absolutely”, and he did his homework and he had been kept up-to-date. He asserted that he was aware it was a conciliation, even if he was not present.

[51] Relevant to the CFMMEU’s assertion that it was not aware of any requirement for conciliation in these types of applications, Mr Borg stated that while it might have been contained in its correspondence, the CFMMEU would entertain further conciliation, but only where I decided not to arbitrate the matter.

[52] I informed Mr Borg that I had issued directions for arbitration of the matters because the CFMMEU correspondence had indicated that it did not consider conciliation necessary, would not participate in a further conference before me, and the CFMMEU had stated that it considered that it had been ‘generous’ by its earlier participation.

[53] In oral submissions, Mr Walthall restated that in Workpac’s view, the Full Bench decision does not provide explicit direction to Members to reallocate matters. It remains a discretionary issue for the Member. It was submitted that I would not fall into error if I decided not to have the matter reallocated.

[54] Workpac submitted that there had been very limited conciliation. Mr Walthall acknowledged he had not been present during the two conferences. On instructions, he understood that following the conferences there had simply been an exchange of emails. He understood that there had not been private discussions during the conferences, which I confirmed. He understood that there had not been an exchange of settlement offers during the conferences. It was submitted that it was a different situation than the scenario that was before me in the unrelated matter of C2018/6736. Mr Walthall stated that Workpac would be prepared to further conciliate the matters before me, but if the union wanted to make a further request for me to have the matter reallocated it, that would then be a matter again for the Commission to determine.

[55] I informed the parties during the hearing that it had been my view that no parties had made concessions during the two conferences, and I simply offered my chambers as a facility to provide the factual material and have it consolidated. The relevant material was sent to the parties for their consideration.

[56] Mr Walthall agreed that it appeared to Workpac that there had not been any concessions made by any of the parties to the conferences.

[57] Mr Borg submitted that the provision of information by the parties is a concession, and those matters are private. Further, Mr Borg stated that parties should be free to express themselves and participate in conciliation or conferences that aren’t on the record in the confidence that the matters discussed are private. It was submitted that continuing to arbitrate a matter was putting into danger the integrity of the conciliation process. Mr Borg submitted that parties would be much more guarded if a matter is arbitrated by the same member who conciliated the matter.

[58] It was submitted by Mr Borg that it was immaterial that no private conferences had taken place.

[59] Mr Borg repeated that the CFMMEU has declined further conciliation of the matter, because so far the proposition is that I will conciliate and then arbitrate the matter. He stated that if that proposition is off the table, the CFMMEU would be prepared to enter into further conciliation.

Consideration

[60] For the same reasons given by me in paragraphs [24] – [62] in my decision in Watpac Construction Pty Ltd v CFMMEU & Ors [2019] FWC 4076, I have decided not to have the two applications before me reallocated. I adopt my reasons above in this matter.

[61] Further, in relation to these two matters, the Commission has simply convened two conferences. The parties did not make any concessions during those conferences, nor were there private meetings. The parties simply agreed to allow my chambers to be the conduit for the collection of factual information.

[62] In the same way that my practice has been to collect factual information from parties in a majority support determination application, allowing parties to supply the information to the Commission as the holder of both side’s information without private information being shared with the other side, the Commission has not learned any information relevant to the substantive applications before the Commission.

[63] Mr Borg’s submission that he knows that conciliation occurred at the conference in RE2018/1109 is without merit. He was unable to describe any type of conciliation or concessions made by parties, other than to say that the provision of factual information is a form of conciliation. I respectfully disagree.

[64] While it is true that the two applications have been before the Commission for a reasonably long period of time, there has not been any significant advancement of the matters largely due to the unavailability of the parties.

[65] Directions have now been issued for the hearing of the applications. The directions were issued on the basis that the CFMMEU communicated that it did not consider conciliation necessary, and it considered it had been generous in attending earlier conferences. While the CFMMEU now indicates it is willing to participate in further conciliation, it does so on the condition that I do not conciliate and arbitrate the matters.

[66] I consider it inappropriate for such a proviso to attach to a party’s willingness to participate in a further conference before the Commission. It is not for any party to decide who may or may not arbitrate an application before the Commission and hitch a willingness to further participate in a conference on a Member’s undertaking that they will not then arbitrate the matter. Quite simply, parties don’t get to decide who will or won’t arbitrate matters they are party to.

Conclusion

[67] For the reasons above, I will continue to be the Presiding Member of the two applications. All of the material required for arbitration has been filed and served. A notice of listing has been issued.

COMMISSIONER

Appearances:

A Borg, for the Construction, Forestry, Maritime, Mining and Energy Union.

T Walthall, solicitor, for Workpac Construction Pty Ltd T/A Workpac.

Hearing details:

Brisbane

2019

June 18.

Final written submissions:

Written submissions of the Construction, Forestry, Maritime, Mining and Energy Union, date.

Written submissions of Workpac Construction Pty Ltd T/A Workpac, date.

Printed by authority of the Commonwealth Government Printer

<PR709564>

 1   [2019] FWCFB 3855.

 2   Ibid, [45].

 3   Submissions of the CFMMEU, 17 June 2019, [11].

 4   Ibid, [14].

 5   Ibid, [17].

 6   Re Dalrymple Bay Coal Terminal [1996] AIRC 2141; BRB Modular v AMWU [2015] FWCFB 1440, [16].