DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
(C2018/6039)

Introduction and background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision of Senior Deputy President Hamberger issued on 18 October 2018 1 (Decision). The Decision was made by the Senior Deputy President in the course of dealing with applications made by the CFMMEU pursuant to s 512 of the Fair Work Act 2009 (FW Act) for entry permits to be issued to three of its officials (John Tucker, Shaun Desmond and Matthew Parfitt),2 and specifically concerned an application by the CFMMEU that the Senior Deputy President should recuse himself from hearing the applications on the ground of a reasonable apprehension of bias. This application was rejected in the Decision. The CFMMEU contends in its appeal that the Decision was attended by appealable error.

[2] The CFMMEU’s recusal application was founded on the fact that, on 17 March 2016, the Senior Deputy President had “retweeted” a “tweet” originally issued by the then Minister for Employment, Senator Michaelia Cash. A “tweet” is a message sent using Twitter, which is an online news and social networking service. When a person “retweets” someone else’s “tweet”, it is reposted on the person’s online Twitter profile and sent to followers of that profile. The “tweet” posted by Senator Cash and “retweeted” by the Senior Deputy President contained the message in text: “Labor gets millions in donations from the CFMEU. That’s why they’re against restoring the ABCC. Bring back the #ABCC”. Beneath this appeared an image of Bill Shorten, the Leader of the Opposition, dressed as a cricketer and holding a cricket bat and helmet in the air. Superimposed at the top of the image was a newspaper headline which read “CFMEU notches up 100 members before courts”, and at the bottom were the words “A Century of Shame”.

[3] The “retweet” appeared on the Senior Deputy President’s profile until 27 July 2017, and could be seen by anyone who accessed his Twitter profile. On that date, the CFMMEU 3 made an application in chambers for the Senior Deputy President to recuse himself from dealing with an earlier application for the issue of an entry permit to one of the CFMMEU’s officials. The “retweet” appears to have been removed from the Senior Deputy President’s Twitter profile shortly after the recusal application was made in chambers. The Senior Deputy President did not issue any decision recusing himself, but the entry permit application in question was shortly afterwards re-allocated to another member of the Commission for determination. It may be noted in this connection that the Senior Deputy President was at that time and remains the head of the Commission’s Organisations Panel, and as such has delegated authority to allocate to himself and other members of the Commission in the Panel applications concerning registered organisations, including applications for the issue of entry permits pursuant to s 512 of the FW Act.

[4] The CFMMEU’s application for the Senior Deputy President to recuse himself from dealing with the current entry permit applications was the subject of a formal hearing on 4 October 2018. The CFMMEU had earlier filed written submissions in support of its recusal application on 10 September 2018. The CFMMEU submitted that the original “tweet” expressed a partisan political view about the CFMMEU and, less relevantly, about the Australian Labor Party, and that the “tweet” conveyed a message that was very critical of the CFMMEU. The fair-minded lay observer, it was submitted, would be concerned that the “retweet” without any qualification constituted the endorsement of a view that the CFMMEU engaged in unlawful and shameful conduct and that those who associate with the CFMMEU (such as its officials) support such conduct. This was logically connected to the matter to be determined by the Senior Deputy President, namely the fitness of the three officials in question to hold entry permits. Additionally, the CFMMEU submitted, the fair-minded lay observer would reasonably apprehend that, in circumstances where the Senior Deputy President had previously recused himself from dealing with an entry permit application, the same result would apply in the current matters.

[5] In the Decision, the Senior Deputy President referred to two High Court authorities concerning reasonable apprehension of bias, namely Ebner v Official Trustee in Bankruptcy 4 (Ebner) and Re JRL; Ex parte CJL5 (JRL). Relevantly in relation to the latter decision, the Senior Deputy President quoted the following passage from the judgment of Dawson J:

“But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly. Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.” 

[6] The Senior Deputy President then said:

“[11] The ‘re-tweet’ was originally brought to my attention on 27 July 2017, during a mention in relation to matter no. RE2017/793. I was concerned at that time that there may have been grounds for a reasonable apprehension of bias, and so I arranged for the application to be dealt with by another member of the Commission.

[12] However, since 27 July 2017, I have dealt with over 50 matters to which the CFMMEU (or its predecessor, the CFMEU) was a party (not including Full Bench matters where I was not the presiding Member). In none of these matters has there been any suggestion that I have acted other than impartially.

[13] I consider that this is sufficient to eradicate any reasonable apprehension of bias in relation to the applications currently under consideration. Accordingly, I have decided not to recuse myself from dealing with these applications.”

Submissions in the appeal

[7] The CFMMEU submitted that:

• it had been denied procedural fairness, in that the basis upon which its recusal application was determined was not raised with it at the hearing with the result that it was deprived of the opportunity to address the matters dealt with in paragraphs [11]-[13] of the Decision;

• the Senior Deputy President had in fact dealt with a total of 47 substantive matters in which the CFMMEU was identified as a party since 27 July 2017, of which 38 were not opposed or dealt with on the papers;

• of the remaining nine matters, one erroneously named the CFMMEU as party, two had been decided by the Senior Deputy President alone and adversely to the interests of the CFMMEU, and six were decided by Full Benches which included the Senior Deputy President;

• the vast majority of the 47 matters were administrative in nature, did not involve the CFMMEU having any opportunity or need to voice an objection, and did not require any real exercise of discretion, so that the reference in the Decision to “over 50 matters…eradicated any reasonable apprehension of bias” was an exaggeration;

• the fair-minded lay observer would be aware that the Senior Deputy President considered that there was a reasonable apprehension of bias when he recused himself on 27 July 2017, and nothing which occurred since then was capable of eradicating the fact of the publication of the “retweet”;

• in quoting from the judgment of Dawson J in JRL, the Senior Deputy President failed to include the remainder of the passage in which Dawson J stated that where the apprehended bias arose from an interest or preconception existing independently of the case, it might well be ineradicable; and

• the appeal should be upheld, the Decision quashed, and the substantive application allocated to be dealt with by another member of the Commission.

[8] The CFMMEU annexed to its written appeal submissions a schedule identifying the 47 matters involving the CFMMEU which the Senior Deputy President had dealt with (either sitting alone or as part of a Full Bench) since 27 July 2017.

[9] The Australian Building and Construction Commissioner (ABCC), who had in relation to the substantive applications given notice of his intention to intervene and make submissions pursuant to s 110(3) of the Building and Construction Industry (Improving Productivity) Act 2016, declined to make any submissions in the appeal.

Consideration

[10] We consider that the CFMMEU’s contention that it was denied procedural fairness in the proceedings before the Senior Deputy President must be accepted. It is clear from the Decision that the CFMMEU’s recusal application was dismissed on the sole basis that the fact that the Senior Deputy President had dealt with a large number of matters to which the CFMMEU was a party since 27 July 2017 without complaint as to his impartiality was sufficient to eradicate any reasonable apprehension of bias. It is equally clear that the possibility that the CFMMEU’s recusal application might be determined on this basis was not raised by the Senior Deputy President directly or indirectly at the hearing, nor did anything contained in the CFMMEU’s written or oral submissions form any foundation for deciding the matter on that basis. We are satisfied that, had this issue been raised at the hearing with the CFMMEU, there were a range of significant submissions it may have made in response. In these circumstances, we consider it appropriate to grant permission to appeal, uphold the appeal, and quash the Decision.

[11] That renders it necessary for the CFMMEU’s recusal application to be re-determined. The CFMMEU accepted that it was open to us to re-determine the recusal application based upon the submissions and evidence at first instance and the appeal submissions. We consider that is a more convenient and expeditious course than remitting the recusal application to the Senior Deputy President for re-determination.

[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU’s recusal application:

•  the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide; 6

•  deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction; 7

•  the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits; 8

•  only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; 9 and

•  it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary. 10

[13] Applying the Ebner two-step approach, the CFMMEU firstly relies upon the Senior Deputy President’s “retweet” of 17 March 2016 as the matter which might lead the fair-minded lay observer to apprehend that the Senior Deputy President might not bring an impartial mind to the resolution of the question of whether Messrs Tucker, Desmond and Parfitt should be issued with entry permits pursuant to s 512 of the FW Act. We will assume in the CFMMEU’s favour, without deciding, that the Senior Deputy President’s “retweet” of Senator Cash’s original “tweet” constituted an endorsement of the opinions expressed in that “tweet”. However it remains necessary to identify the nature of the opinions expressed. The text above the image may be characterised as critical of Mr Shorten and the Australian Labor Party on the basis of an allegation that their opposition to the reintroduction of the ABCC (a live issue at the time the “tweet” was issued) was motivated by the acceptance of substantial donations from the CFMMEU. The image beneath the text confirms that the primary target of the criticism in the “tweet” was Mr Shorten. The cricketing imagery and the metaphor “A Century of Shame” are explained by the headline “CFMEU notches up 100 members before courts” appearing at the top of the image. The headline relates to the fact that a large number of the CFMMEU’s officials and members had been the subject of proceedings in the courts for contraventions of civil remedy provisions of the FW Act and other Commonwealth legislation. In this context the “Shame” reference may be regarded as targeted in a subsidiary way at the CFMMEU. The CFMMEU contends that the “Shame” reference may also be read as directed at “those who associate with the CFMMEU (such as its officials)”, but we do not consider that it may reasonably be read in that way except perhaps in relation to those officials and members who constituted the “100 members before courts”.

[14] In relation to the second Ebner step, the CFMMEU contends that the necessary “logical connection” is that because the Senior Deputy President had endorsed the view that the CFMMEU and all who are associated with it were shameful and to be condemned, the fair-minded lay observer would reasonably apprehend that he could not bring an impartial mind to the question of whether Messrs Tucker, Desmond and Parfitt were fit and proper persons to be issued with entry permits.

[15] Once the nature of the “retweeted” opinion of Senator Cash is properly characterised, we do not consider that the “logical connection” sought to be drawn by the CFMMEU between the “retweet” and the matters to be determined in the substantive application before the Senior Deputy President is sustainable. Section 512 of the FW Act empowers the Commission, on application by an organisation, to issue an entry permit to an official of that organisation if the Commission “is satisfied that the official is a fit and proper person to hold the entry permit”. Section 513(1) provides:

513 Considering application

(1)  In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters :

(a)  whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b)  whether the official has ever been convicted of an offence against an industrial law;

(c)  whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i)  entry onto premises; or

(ii)  fraud or dishonesty; or

(iii)  intentional use of violence against another person or intentional damage or destruction of property;

(d)  whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e)  whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f)  whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i)  cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii)  disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g)  any other matters that the FWC considers relevant.

[16] Section 514 prohibits the Commission from issuing an entry permit to an official who is currently the subject of a suspension or disqualification imposed by a court or other person or body applying to the official’s exercise of, or preventing the official from exercising or applying for, a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial or OHS law. Section 515 provides that the Commission may impose conditions on an entry permit when it is issued, taking into account the permit qualification matters in s 513(1).

[17] The determination of the applications for entry permits for Messrs Tucker, Desmond and Parfitt therefore requires an assessment as to whether they are fit and proper persons to hold entry permits. The fit and proper person test is “necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought”. 11 The permit qualification matters required to be taken into account in s 513(1)(a)-(f) are all concerned with “matters personal to the official for whom the issue of an entry permit is sought”.12 As to s 513(1)(g), it is for the Commission to decide what matters are relevant and to be taken into account, and the Commission is not obliged to take into account wider issues concerning the applicant organisation’s conduct and history of contraventions, or those of its other officials.13 Similarly, ss 514 and 515 are concerned with matters personal to the official in question.

[18] The “retweeted” opinion of Senator Cash contained no direct criticism of Messrs Tucker, Desmond and Parfitt either generally or specifically in relation to their suitability to hold entry permits. As earlier stated, we do not consider that the “tweet” can be read so broadly as to be critical of any person who associates with the CFMMEU. It was not suggested by the CFMMEU that Messrs Tucker, Desmond and Parfitt were included in the “100 members before courts” referred to in the “tweet”. For these reasons, we do not consider that the fair-minded lay observer might reasonably apprehend on the basis of the Senior Deputy President’s “retweet”, which was primarily directed at Mr Shorten and in a subsidiary way at the CFMMEU, that he might not bring an impartial mind to the question of whether Messrs Tucker, Desmond and Parfitt were fit and proper persons to hold entry permits.

[19] Our conclusion on that score is fortified by the fact that the Senior Deputy President has, since the “retweet” was taken down, decided a number of matters concerning the CFMMEU and/or its officials without any complaint about his impartiality. Although, as the CFMMEU submitted, many of these matters were not contentious and were merely administrative in nature, a number of them were not. The schedule of matters annexed to the CFMMEU’s written submissions shows, for example, that the Senior Deputy President sat as a member of Full Benches in a number of significant and highly contentious appeals which were decided in favour of the CFMMEU. The Senior Deputy President has also sat alone on a number of contentious matters involving the termination of enterprise agreements, and specifically in respect of Messrs Tucker, Desmond and Parfitt exercised in their favour the discretion in s 516(2) to extend the operation of their existing expired entry permits pending the determination of their applications for new permits. No recusal application was made by the CFMMEU in respect of any of these matters, nor did the CFMMEU appeal or seek judicial review in respect of any of these decisions which were decided adversely to its interests on the grounds that there was any actual or perceived lack of impartiality on the part of the Senior Deputy President. We consider that the fair-minded observer, who would be taken to be aware of the objective background history, 14 would not reasonably apprehend that the Senior Deputy President might not impartially decide the current matters concerning Messrs Tucker, Desmond and Parfitt.

[20] In reaching this conclusion, we do not accept the CFMMEU’s submission that this history may not be taken into account in determining whether there is a reasonable apprehension of bias or that, to the extent that the “retweet” may (contrary to our earlier conclusion) have given rise to a reasonable apprehension of bias, this was necessarily ineradicable by consequent conduct. As was made clear in Ebner, all of the relevant circumstances need to be taken into account, and whether a statement or conduct on the part of a decision-maker creates an ineradicable reasonable apprehension of bias must be assessed by reference to the totality of the circumstances. As was stated in Johnson v Johnson 15 (albeit in relation to a different factual scenario):

“No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case.” 16 

[21] We do not consider that the full passage from the judgment of Dawson J in JRL referred to in the Decision and the CFMMEU’s submissions stands for any different principle. Dawson J said:

“It is an understandable tendency to assume the existence of a reasonable basis for supposing bias where there is, as in this case, an apparent departure from the proper standards of judicial behaviour. But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at p 262; Reg. v. Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51. Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures. It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage. See Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at pp 99, 101, 125, 129. It seems to me to follow that it must also be possible to remove an apprehension of bias on the part of a judge which might otherwise arise out of the failure to hear a party. After all, that kind of bias is not bias through interest or preconceptions existing independently of the case. Suspicion of bias of the latter kind, where there are grounds for it, may well be ineradicable. See Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.[1953] HCA 22; (1953) 88 CLR 100, at p 116. Here the suggested bias is an inability to act impartially which is said to have been demonstrated by the fact that representations were made to, or evidence was heard before, the judge in the absence of the parties. Remembering that both parties were absent at the time, it does not seem to me to have been a situation which was necessarily incapable of correction either as regards fairness or as regards the appearance as well as the fact of impartiality.” 17

[22] We also reject the CFMMEU’s submission that the Senior Deputy President made a decision to recuse himself on 27 July 2017 on the ground of reasonable apprehension of bias by reason of the “retweet”. There is no record of any such decision having been made (as distinct from a decision on the part of the Senior Deputy President, as head of the Organisations Panel, to simply re-allocate the matter). Paragraph [11] of the Decision confirms that the Senior Deputy President did not reach any final conclusion concerning the recusal application made at that time. We consider that this was a situation of the type referred to in Ebner as follows:

“[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.” 18

[23] Accordingly the CFMMEU’s submission that there was no basis for the Senior Deputy President to depart from his 27 July 2017 recusal decision does not arise for consideration.

[24] For the reasons given, the CFMMEU’s recusal application is dismissed. The Senior Deputy President may properly continue to hear and determine the applications for entry permits to be issued to Mr Tucker, Mr Desmond and Mr Parfitt. We emphasise that in reaching this conclusion, it is not our intention to endorse the Senior Deputy President’s conduct in “retweeting” Senator Cash’s politically contentious tweet. It is not generally appropriate for members of the Commission to express publicly views about matters of party-political controversy.

Orders

[25] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision ([2018] FWC 6462) is quashed.

(4) The application for the recusal of Senior Deputy President Hamberger in matters RE2018/837, RE2018/881 and RE2018/885 is rejected.

VICE PRESIDENT

Appearances:

R. Reitano of Counsel and J. Kennedy for the Construction, Forestry, Maritime, Mining and Energy Union.

Hearing details:

2018.

Sydney:

19 December.

Printed by authority of the Commonwealth Government Printer

<PR703842>

 1   [2018] FWC 6462

 2   Matters RE2018/837, RE2018/881 and RE2018/885

 3   Then named the Construction, Forestry, Mining and Energy Union. For convenience we will refer to it as the CFMMEU throughout this decision.

 4   [2000] HCA 63, 205 CLR 337

 5   [1986] HCA 39, 161 CLR 342

 6   Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6]

 7   Ibid at [7]

 8   Ibid at [8]

 9   Ibid at [8]

 10   Ibid at [21]; see also Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288 at 299: “…each case must be determined by reference to its particular circumstances”.

 11   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [22]

 12   Ibid at [24]

 13   Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169, 247 FCR 138 at [66]-[70]

 14   See Webb v The Queen [1994] HCA 30, 181 CLR 41 at 67-68 per Deane J; Laws v Australian Broadcasting Tribunal [1990] HCA 31, 170 CLR 70 at 95 per Deane J; Kartinyeri v The Commonwealth [1998] HCA 52, 156 ALR 300 at [52]

 15   [2000] HCA 48, 201 CLR 488

 16   Ibid at [14] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

 17   [1986] HCA 39, 161 CLR 342 at 371-2

 18   [2000] HCA 63, 205 CLR 337 at [20] per per Gleeson CJ, McHugh, Gummow and Hayne JJ