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Fair Work Act 2009                                                    








s.604 - Appeal of decisions


Appeal by United Workers' Union (108V)



Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021




1.00 PM, FRIDAY, 12 AUGUST 2022


Continued from 21/07/2022



VICE PRESIDENT HATCHER:  Yes, I'll take appearances.  Mr Clift, do you continue your appearance for the appellant?


MR CLIFT:  Yes.  Thank you, Vice President.


VICE PRESIDENT HATCHER:  Mr Fredericks, do continue your appearance for the respondent?


MR FREDERICKS:  I do.  Thank you, Vice President.


VICE PRESIDENT HATCHER:  All right.  Well, as you know the hearing today has been called for the purpose of giving (indistinct) the respondent and also of course an opportunity to respond to the matters raised in our statement of 9 August 2022.  Mr Fredericks?


MR FREDERICKS:  Apologies, Vice President, you were breaking up a little bit there at my end.




MR CLIFT:  And for me as well, Vice President.


VICE PRESIDENT HATCHER:  All right.  Can you hear me now?


MR FREDERICKS:  Yes, thank you.


VICE PRESIDENT HATCHER:  The purpose of today's hearing is of course to allow the parties particularly the respondent but also the appellant to respond to the matters raised in the Full Bench's statement of 9 August 2022.  So, Mr Fredericks, do you wish to go first?


MR FREDERICKS:  It's probably appropriate, Vice President, I suspect normally - I don't know what the appellant's position is.  I assume they either support or don't oppose the making of the orders (indistinct) of that given the application if - I should ask first whether the Bench has the outline of submissions that were sent to the Commission a couple of hours ago.


VICE PRESIDENT HATCHER:  Well, I can - I have it.  I think the other Full Bench members have it and at least two if not three of us have read it.


MR FREDERICKS:  Thank you.  Well, given what's flagged in there, Vice President, namely that the respondent makes application that the members of the Full Bench as currently constituted, disqualify themselves from further hearing this appeal, it is appropriate that I go first and have that matter determined.




MR FREDERICKS:  And as I've also said in those written submissions, the submissions I would make in that respect largely reflect the submissions I would make with respect to whether or not the Bench should make the provisional orders as verified in its statement, 2022 FWCFB 151 at paragraph 11 but the submissions there are largely the same as to why the Commission not make those orders so on that basis, I will proceed.


I know also there has been of course a revised version of the statement issued today correcting an error, I think it was in paragraph 4 of the statement issues earlier this week.


VICE PRESIDENT HATCHER:  Yes, I should have noted that, Mr Fredericks, so that was a correction in relation to one of the matter numbers referred to.


MR FREDERICKS:  Indeed.  If the Commission has read what's in my written submissions, that largely sets out what I intend to say and I don't intend to go through that particular detail, rather I will simply touch upon the key points.  It's clear that section 590 of the Fair Work Act allows the Commission to do a number of things.


Again, these are what might be considered to be (indistinct) broad powers as to how it might inform itself both on the basis that it can inform itself as it sees fit and then sets out various means by which they can be exercised.  Now, that section says what it says.


The issue then of course is whether the Commission could exercise its discretion to make the provisional orders and also whether the path (indistinct) the Commission is going down, its proposal to make these orders is one that gives rise to a reasonable apprehension of bias.


So the starting point then is really that it's well‑settled the Commission must conduct itself judicially and I've given the relevant quote there from Cole v Adelaide Mining Services and Lawler in that they're talking about the Australian Industrial Relations Commission and the FWA applying to this Commission as it currently is, that the Commission's bound to make judiciously in the sense that they are obliged to respect and apply judicial notions of procedural fairness and impartiality.


And of course that is also subject to that the Commission's supposed to proceed without unnecessary technicality and informally and as they're noted by Buchanan J that the members of the Commission have a statutory mandate to get to the heart of the matter and that is as directly and (indistinct) as possible.


And the Commission's fair hearing practice note which I've referred to there reflects those obligations and I don't intend to take the Commission to that.  We then have - I've then briefly set out a quote from the High Court in the recent decision of (indistinct) as to how issues of apprehended bias are to be approached.


And I have set out the relevant quote there (indistinct) citation but relevantly, halfway through that quote the key steps which reflects the earlier decisions in the High Court in Ebner for example, that the application requires two steps.  First it requires identification, what it is said might lead a judge to decide a case other than on its legal and factual merits and second, there must be articulated a logical connection between a matter and the fair departure from the judge deciding the case on its merits.


Once those two steps are taken the reasonableness that the asserted apprehension of bias can than ultimately be assessed and we say what the respondent submits on the basis set out in the submissions that those two steps can be satisfied here and there is a reasonable apprehension of bias on the part of the Commission and this arises substantially from what is contained in the statement itself, in my submission.


As the statements - and I have to apologise, I have - I've got a cough which makes it difficult for me to talk.  As set out in the submissions, the issue primarily both arises from what is said in the statement and the path which the Commission has decided to go - well, it's proposing to go down with the provisional orders and how it led to propose that the orders be made.


As the statement says, on 1 August 2022 the Chambers have - of the presiding member Vice President Hatcher sent an email to the parties requesting that the respondent provide certain information to - for the consideration of the Commission.  On its face which the statement properly recognises that request was done in the context that this information would be required by the Commission in the event that it quashed the approval of the agreement in question and was asked to reconsider the approval of that agreement.


And on that basis the Commission, as I understand it, on the face of that email identified certain information which it would require as part of the reconsideration of - effectively the reconsideration of the application for approval.  The statement of the respondent was to the effect that it was not proposing to ask the Commission to reapprove the agreement.


It said (indistinct) and it had previously informed the Commission that it didn't seek to put any further undertakings forward and on receipt of this email and considering this issue further, it informed the Commission that it should be the decision and the agreement be quashed that it intended to withdraw or discontinue its application for approval of that agreement and that is something that the respondent is entitled to do.


So given the manner in which the request for information was put and noting it was not done by way of a formal order, a direction or statement of the Commission, it was done as an email from Chambers, it was done as a request rather than a direction but given that the basis on which the request was being put was not going to arise, the Commission would not be required to reconsider the application for approval of the agreement.


The necessity for that information to be provided at all disappears.  So that is simply what the respondent informed the Commission and it also rendered unnecessary, for example, any response from the respondent or any consideration of whether that information requested was in fact relevant or would be needed should that application for approval have gone ahead.


The statement then characterised that response as extraordinary or as the respondent actually - acting extraordinarily and contumacious.  That, with respect, is a significant and serious statement to make and on its face liable to be (indistinct) the reputation of the respondent and the respondent was given no notice that such a statement about it and how it conducted itself would be made.


And it is, as I said, in my submission, it's a statement that should not have been made with the greatest of respect, to the Commission, primarily on the basis that the respondent did not act in such a manner but also it was not given an opportunity or any notice that the Commission might make such a statement about it.


As I said, the response is not extraordinary or contumacious.  The response was in - the 'Response' was in response to a request made to an email from the Chambers of a member of the Commission.  It was not in response to a direction of the Commission or an order.  The meaning of contumacious relevantly includes a sense of being insubordinate and wilfully disobedient to an orders of the court.


That simply hasn't happened here.  The request was made on the - for information, it wasn't a direction, an informal request in the context of the act, an informal request was made for information on a certain basis and the respondent responded by saying, 'Look, the basis on which you're asking for the information is simply not going to arise.  The response was entirely appropriate.


VICE PRESIDENT HATCHER:  Well, Mr Fredericks, I respectfully suggest what you've just said is a gloss on what the response actually said and that the response was simply nonresponsive to the request.


MR FREDERICKS:  No, I accept it didn't say 'And therefore we're not going to (indistinct) information', but simply said, 'In the event that the extension of time or permission to appear was granted and the appeal is upheld then we are instructed that Hot Wok (indistinct) chance to withdraw their application pursuant to section 588.'


It probably could have said, 'And therefore it does seem' - it says (indistinct) the information is not necessary or doesn't need to be provided but I think that's an inference which seems to me, to arise from what was put back to the Commission in response to a request set out in an email.  It was simply - it was properly and appropriately telling the Commission what the respondent intended to do should the decision and the agreement be quashed.


And because of that, that response meant - and perhaps it could have said more but what the effect of that response is that on the basis that the information - the basis for the request for the information as set out in the email disappeared so (indistinct).


DEPUTY PRESIDENT GOSTENCNIK:  But, Mr Fredericks, your submission is premised on the assumption that the Full Bench's request for that information was for the purposes of determining whether on a rehearing the matter should be - or the agreement should be approved when in fact what the Full Bench was asking for was the capacity for it to deal with all potential issues arising in the matter in a single decision.


MR FREDERICKS:  Well, and look - sorry, I withdraw that.  I was (indistinct).  And I have to say, Deputy President, I'm reading it - sorry, the introduction, the agreement and email read in the email in the event that permission - it says:


In the event that permission to appeal is granted and the appeal is upheld, it will be necessary for - et cetera, and it will necessary for approval to be reconsidered.


That's the opening words of the paragraph of that email.




MR FREDERICKS:  And that was frankly my reading of it (indistinct).


DEPUTY PRESIDENT GOSTENCNIK:  But they're not the only words.


MR FREDERICKS:  They're not but I think it invites the remainder of the email to be read on that basis.  In a sense the Full Bench would prefer to deal with all particular issues arising in the matter in a single decision.  Well, the Commission has already had submissions on the merits of the appeal.


The only thing it hadn't heard from the parties on was any application or reapplication for certification.  So a reading of that, with respect, a proper reading of that request is that it's put on the basis of the Commission wants to do everything at once, having heard the parties on the appeal, it now wants further information relevant to reconsideration of an application for approval.


Now, I think - and look, you might get a situation where (indistinct) disagree on how to interpret that.  It seems to me on the face of the email that's how it was put.




MR FREDERICKS:  And the response was, 'We're not seeking - we won't be seeking it to be recertified - reapproved rather.'


DEPUTY PRESIDENT GOSTENCNIK:  Yes, I understand the submission.


MR FREDERICKS:  So it was - look, I have to put the submission that the statement that the respondent acted extraordinarily and contumaciously is one which, with respect, should not have been made particularly in circumstances where the request is in the form of an email rather than in the form of an order or direction.


And as I said in my submissions, the Commission has now made a finding ex parte effectively and put it on the public record as to its characterisation of the respondent's conduct and indeed appears to have formed the view as to the character and credit of the respondent, at least of the corporate character and credit of the respondent.


There was no email back, for example, saying, 'No, we want - it is understood, it's actually needed for the purposes of determining the appeal itself.'  What we then had was the issuing of a statement with the very strong words made about what the respondent had done and similarly, the Commission has made statements expressing concerns as to the conduct of Mr Latham and that he may have intentionally made a false statement which would be - frankly, would be criminal conduct.  Mr Latham was not ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Mr Fredericks, you've used that word but leaving that aside, you need to demonstrate, don't you, that there's a reasonable apprehension of bias against your client.


MR FREDERICKS:  I do but Mr Latham's statement was the one put forward.  It was right on the applicant - he's filled out the F16 and the F17, they're in the statements that from the basis of our client's initial application for approval of the agreement.


VICE PRESIDENT HATCHER:  Is Mr Latham an employee of your client?


MR FREDERICKS:  I don't know whether he's an employee of my client or a member of the group of which the respondent is part.


VICE PRESIDENT HATCHER:  I think at the early hearing you made some comments about not lifting the corporate veil.  Just to be clear about this, in respect of this apprehended bias application (indistinct) the represent Hot Wok Food Makers Proprietary Limited, correct?


MR FREDERICKS:  Sorry, I did miss that?  I've just (indistinct), Deputy - Vice President, I missed what you said, my apologies.


VICE PRESIDENT HATCHER:  Yes.  Just to be clear, in respect of this apprehension of bias application, you're here to represent Hot Wok Food Makers Proprietary Limited, correct?


MR FREDERICKS:  I am, Vice President.




MR FREDERICKS:  But the statement of Mr Latham were the statements - he was the person who made the statements on behalf of my client.  Whether or not he's an employee of my client of some other member of a group or has some completely other capacity is, with respect, not to the point, he's the person who's made the statements on behalf of my client.


And in the 'Statement', the Commission not only have made adverse comments about how the respondent without notice - has made adverse comments about how the respondent has conducted itself, it's made adverse comments about how - about Mr Latham's conduct being the person who signed off on, if I can put it in colloquial terms, signed off on the application and the (indistinct) that came into the Commission.  So it has a direct impact on how the Commission views my client and then the issue of apprehended bias clearly arises.


VICE PRESIDENT HATCHER:  So why is that?  That is if the statement raises matters which raise issues about the verity of the contents of Mr Latham's declaration and invites a response, why does that give rise to an apprehension of bias?


MR FREDERICKS:  Because Mr Latham was the person in effect, he was acting on behalf of the company.  He was a person through which the company acted in making the application and putting the relevant information to the Commission.




MR FREDERICKS:  You might say he was - sorry, Vice President, I didn't mean to talk over you.


VICE PRESIDENT HATCHER:  No, no.  Mr Fredericks, in effect, what the statement does is give notice of potential adverse findings and an opportunity to respond.  Why do you say that gives rise to an apprehension of bias when in fact it's designed to ensure procedural fairness?


MR FREDERICKS:  Well, because the way that the statement is being led up to and appreciating that the Commission has used the words (indistinct) - I want to use the precise words such as 'May have' or 'Possibly', et cetera, don't alleviate the problems of making such a statement about Mr Latham and I've given the relevant citation there.


The Commission has gone through a process of looking at the information and this is a broader issue as well as - it seems to have conducted some sort of investigation of its files or of matters involving related bodies corporate possibly of the respondent and people who were employed by the respondent at the relevant time, it's had a look at a number of documents which I - so that I haven't seen a number of them even now, has formed a view indicating some basis for suspecting that improper conduct, indeed unlawful conduct has taken place.


It's - the Commission is not, with respect, an investigative or inquisitorial body, it acts particularly in proceedings like this, it's here to determine the issue that's raised on appeal.


The Commission has now gone off and investigated this matter through its own files, had a look at the documents which the parties haven't seen, I certainly haven't seen many of the documents referred to in the statement and I assume neither has my friend, and has formed a view from that that it might give rise to possible questions of unlawful conduct by the person that signed off on the application to the Commission.


That strikes at the heart of the process by - of the issue of acting judicially and ensured procedural fairness when one looks at how Buchanan J has said the Commission could conduct itself a fair hearing practice and that's not - and some other references to issues of procedural fairness, et cetera.


But the Commission didn't do that and then to make these statements both about the respondent and Mr Latham strikes at the very heart of the Commission's obligation unfortunately to hear these proceedings and decide the issues in an objective manner on the notice of the case on the basis of the issues put to it by the parties.


VICE PRESIDENT HATCHER:  Well, it would follow that ‑ ‑ ‑


MR FREDERICKS:  (Indistinct).


VICE PRESIDENT HATCHER:  Mr Fredericks, does it follow from that submission that the Commission cannot give parties notice of any particularity of an adverse finding and give them an opportunity to respond without creating an apprehension of bias.


MR FREDERICKS:  Well, indeed not and I've recognised that in my submissions that often that will be appropriate and the authorities all recognise that will be appropriate from time to time, that may well be appropriate and in fact may be desired and indeed, Vice President, as no doubt that was aware, there are authorities which say that that's a denial of procedural fairness for a tribunal member to sit there in silence and not raise concerns with the parties about the case that's being put and then to find against the party on the basis which they - wasn't really brought to their notice.


But that's, with respect, but there are lines to be drawn and, with respect, the Commission's gone beyond that line.  This is not a situation - and indeed what I have just described is what happened when we had the oral submissions before this Bench when there - a few weeks ago.  The Commission clearly had concerns about - arising from the material.


It put those concerns with very (indistinct) forcefulness to the parties to enable them to respond to that and that's entirely proper.  What the Commission has done now is take another step and gone out and started investigating and found additional material which, in my submission, is not relevant to what the Commission has to determine but the Commission has now in effect, decided that point without prior (indistinct) before making that decision.


But the Commission has gone beyond telling myself and my friend, 'Well, Mr Fredericks, I hear what you have to say about the submission (indistinct) problem X', the Commission's gone and done its own investigation.  It's gone back into matters - apparently an application for approval of an agreement made by my client and then withdrawn and seeks to - apparently has drawn some adverse inference from that.


It's gone into other files involving parties who are not my client, involving documents that I haven't seen and has drawn adverse inferences from that as well in circumstances where, as I said in my submissions, it wasn't appropriate to draw those adverse inferences.  The Commission has gone beyond what is an appropriate level of intervention in proceedings, in my submission.


DEPUTY PRESIDENT ASBURY:  Mr Fredericks, it's Deputy President Asbury.  Going back to your point about Mr Latham, the Full Bench provided a copy of the form F17 that was made by Mr Latham and has also provided the work that the Commission's member assist team has done in relation to the agreement.


And even if one considers the Full Bench decision in Bupa and the comment that voluntary hours are beneficial, it's arguable that there are factual errors in that form F17 and why wasn't that fairly and squarely put at the hearing and has now been put with particularly that either it's factually incorrect or - and there's a possibility that it was intentional.


Because when there's factually incorrect statements about beneficial provisions in an Enterprise Agreement and they are factually incorrect on an objective view, then there's only two options, isn't there?  One is that it's an incorrect statement of fact and the other one is it's intentional and both of those prospects support.


No findings made.  Mr Latham might turn up and say, 'I don't know, I wasn't aware of the Full Bench in Bupa.  I wasn't aware of the rates when I made the declaration, et cetera, I don't know.'  But that proposition's just been put, hasn't it?  It's one of two options, arguably.


MR FREDERICKS:  Well, Deputy President, as I read the statement and it's doing more than - it's saying there's issues regarding Mr Latham arise from the fact that there are factual errors in the F17 statement.


As I understand the error might be whether or not Mr Latham was correct in characterising the agreement as having passed the BOOT test and that's a matter of - and that's an assessment by Mr Latham with which Deputy President Mancini as she then was, agreed.  So it's (indistinct) that would automatically give rise to any suspicion of (indistinct).


DEPUTY PRESIDENT ASBURY:  Well, it may not except when a person declares that they are - I'm sorry, I'm just going back to the declaration, Mr Latham holds the position where arguably he would be aware of matters such as the Full Bench decision in Bupa which has been - he's the chief HR officer of an employer in an industry where arguably people are aware of the Full Bench decision in Bupa which has been pretty uniformly followed by members of the Commission, that voluntary hours are not of themselves, because they're voluntary, a benefit and especially when you have an agreement where the rates are very close to or in some cases below the rates in the award.  That is, on any view of it, a factually incorrect statement from a person who, one, would expect wouldn't make it, as are a number of other statements.


You know, if I was going to make a statement as a HR professional that said the rates are better than, I'd want to be making sure that was right before I signed it because it's a statutory declaration and arguably there are statements in that statutory declaration that are not correct and that's the best case scenario.  They're factually incorrect and it's a matter of some significance when you have an agreement that's made with four or so employees and it's going up for approval without a contradictor.


MR FREDERICKS:  Deputy President, I suspect I'm going to be repetitious to some extent, unfortunately, and we are in the realms of a hypothetical.  There's no reason why Mr Latham would necessarily be aware of the decision in Bupa.  It is unfortunate that the knowledge in the HR community of Commission decisions might not be what it should be.


But one would assume also that Mansini DP was aware of it and, indeed, had the benefit of that in the Commission's assessment table and yet Mansini DP approved the agreement on the basis that it passed the BOOT test.  So it's not clear on that why it should be inferred.  I mean, maybe Mr Latham got it wrong in that respect and that's something the Commission said, 'We are concerned that this is not correct', but they've taken the next step.


It's not only based on what Mr Latham said apparently.  It's based on other material including things that have happened in other matters but if the Commission was concerned of what Mr Latham said is incorrect, then that's all it needed to say.  Say, 'We're concerned this is not correct and this needs to be cleared up and we want to give Mr Latham the chance to explain to deal with it.'  He'd said that he wanted to avail himself of that opportunity.


DEPUTY PRESIDENT ASBURY:  Haven't we done that?


MR FREDERICKS:  You've done more than that, unfortunately, Deputy President.  You've then gone and said, 'This might give rise to issues of unlawful conduct.'  That didn't need to be said and shouldn't have been said, with respect.


VICE PRESIDENT HATCHER:  It wasn't said, Mr Fredericks.


MR FREDERICKS:  The words are that – sorry, I'll just find the actual paragraph:


May have contained a number of incorrect statements of fact with the possibility that this is intentional.


If the sentence had ended after, 'incorrect statements of fact', and full stop, we may well have had less of an issue but there's no basis on it to say the possibility that that was intentional.  Particularly in circumstances where the Deputy President of this Commission agreed with me that it passed the BOOT test.  It doesn't seem on its face that, having regard, that it's such an outrageous thing for Mr Latham to have formed a view on, so - - -


DEPUTY PRESIDENT ASBURY:  But he formed the view beforehand.  He formed the view when he made the statement and he also formed the view in the context of saying in practice it passes the BOOT but if it doesn't here's our submissions on something, on another alternative.


MR FREDERICKS:  That's entirely appropriate and I would have thought it will often be the case that agreements do often – well, I don't know how often it happens but agreements do not get approved from time to time because they fail the BOOT test.  One assumes that the application was made an issue by the employer with the supporting statement that it did, in fact, pass the BOOT test and the Commission has ultimately formed a different view.


That itself doesn't give rise to anything other than the realisation that someone who – a person who is a lay person, got it wrong as to how the BOOT test could ultimately be applied and had a different view to the Commission (indistinct) determined the application as to whether or not it passed the BOOT test.  I don't - - -


DEPUTY PRESIDENT ASBURY:  The applicant was represented also, Mr Fredericks.  Wasn't the applicant represented at that time, according to the form F16?


MR FREDERICKS:  I think that's correct but that doesn't change – I understand what you say, that Latham made this statement before the Commission who ultimately heard the application, and I suspect I'm not making my point very well, Deputy President, but the simple fact is Mr Latham I understand said this passes the BOOT test and the Commission agreed.


VICE PRESIDENT HATCHER:  I think you've made that point, Mr Fredericks.  Look, we need to move along a little bit because this matter has only been set down for an hour.  Is there anything more you wish to say about your apprehended bias application?


MR FREDERICKS:  Sir, can I just have one moment?  Of course the other point to be made relevant and the last point I make on apprehended bias, Mr Latham has not been given an opportunity to respond.  It seems that the Commission has formed such a concern about his evidence that it's now proposing to issue a summons to subpoena him to attend and give evidence.  That's probably all I can usefully say about the application in respect to apprehended bias.  I do rely on what is in my written submissions and I understand that that will be read and properly considered.  There's nothing additional, no additional points I wish to make unless a member of the bench had a further question.


DEPUTY PRESIDENT ASBURY:  Would it assist if Mr Latham was given an opportunity to file something in response, Mr Fredericks?  Would he like to file a - - -




DEPUTY PRESIDENT ASBURY:  - - - statement in response?  Are you asking for that to be granted?


MR FREDERICKS:  I'm not.  Sorry, I was speaking over you, Deputy President.  It's one of the dangers of these calls, my apologies.  I don't.  I don't act for Mr Latham.  He has his own interests, he can take his own advice on the issues relating to his reputation but the fact is this has already been said.  There is a statement by the Commission that having regard to certain matters, that having regard to matters which the Commission was investigating, it has these concerns.


That's a paraphrase rather than a direct quote but that's the effect of it.  In some ways it's a bit late now to offer Mr Latham the opportunity to put submissions about this.  As I say, that's all I say.  I otherwise rely on my written submissions with respect to apprehended bias.


VICE PRESIDENT HATCHER:  That's the apprehended bias.  What do you want to say about the substantive matters in the event that we're against you on the apprehended bias application, or we are for you and the matter is referred to another full bench?


MR FREDERICKS:  Vice President, let me just get my – well, with respect to the orders itself, and I don't know what has been said, other than what's been stated I don't know what's been said in favour of the orders being made.  I've dealt with this in particular in paragraph 26 onwards in my written submissions.


That in order to raise a number of issues of concern, and again it is difficult and perhaps impossible to completely divorce this from issues of procedural fairness and apprehended bias but, as I said, the Commission has a power to inform itself as it considers appropriate and it has the power to attend to give evidence and to order documents to be produced.  So the question is, is this an appropriate exercise of the power and is it affected be procedure or unfairness such that it would not be a proper exercise of the Commission's jurisdiction with respect to its powers under section 590.


I do raise that as a point but if I can then get to the substance of the issues of the orders itself.  The effect of this will be that the Commission is really bringing its own case before the parties.  It's stepping into the shoes of a party.  It's bringing evidence.  It's requiring witnesses to attend, presumably to give evidence as directed by the Commission, and it's requiring parties – sorry, I'll withdraw that.


It's requiring strangers to the proceedings to attend, non-parties.  It's requiring the respondent and others to produce documents.  It's not doing this at the request of a party which is how the powers under section 590(2) are normally exercised.  It's normally done at the request of a party.


VICE PRESIDENT HATCHER:  Mr Fredericks, it's wrong to say that they're strangers to the proceeding in any real sense.  Mr Latham made a declaration which is relied upon.




VICE PRESIDENT HATCHER:  And the others are said to be employees covered by the agreement.  They're not parties to the proceedings as such but if they want to come along and intervene in the appeal, they'd have an interest.


MR FREDERICKS:  They might and I use strangers to the proceeding in the sense that they weren't parties, Deputy President.


VICE PRESIDENT HATCHER:  Yes, I understand that.


MR FREDERICKS:  But Mr Latham has put in a statement or signed the forms.  The other individuals are simply identified as employees, they've taken no active role in the proceeding and I think it's appropriate for those people to be called strangers.  But I use the expression, 'non-parties', if that's more appropriate, Deputy President.  I don't want to quibble about that.


So these witnesses will be directed to attend by the Commission.  How are these people meant to give evidence?  I won't be seeking to obtain evidence-in-chief from them.  Will my friend be doing that or will that evidence be led from the Commission?  I put in my submissions, the respondent's submissions, that this evidence is not relevant for determination of the matters that have been raised before the Commission on appeal.


Yet the Commission in the statement has apparently already come to a view as to the relevance of this material and that's the challenge that frankly I have and probably it will be a challenge, frankly I might have, should evidence be sought to be adduced from any of these individuals either by members of the Commission or by my friend, by making objections, for example, on the basis of relevance or on some other basis.


I'll be doing that in circumstances where the Commission has already decided that that evidence should be adduced from these witnesses and it may well be that the Commission is the one doing the adducing.  And then there will be issues if any of the witnesses themselves object to giving evidence.  It might be, and I have no instructions on this, but Mr Latham, it could be a possibility that Mr Latham, given what's said in the said in the statement might take objection to giving any evidence or to giving evidence on the basis that it might expose him to civil or criminal penalty.


The issue is there that having then called Mr Latham to give evidence and possibly seeking to adduce that evidence from him, the Commission will then be the one determining the objections based on the basis of relevance, on the basis of privilege from self-incrimination or on any other basis.  It's inherently going to lead to a path where there will be issues with procedural fairness at best and may lead to further questions of apprehended bias.


VICE PRESIDENT HATCHER:  Mr Fredericks, let's cut to the chase.  The Commission, I think, has made clear that it has concerns about the way this – and I put it no higher than concerns, about the way in which this agreement was approved.  Do you wish to address those concerns by any alternative method?  That is, is there some alternative which you wish to propose by which we can satisfy ourselves about these matters and the - - -


MR FREDERICKS:  I will – sorry.


VICE PRESIDENT HATCHER:  I'll just finish that before you take instructions.  In our earlier correspondence we offered the company the opportunity to provide a verified statement from Mr Latham.  Do you wish to take advantage of that opportunity again?


MR FREDERICKS:  I will need to get formal instructions from my client.  It may well be that Mr Latham would have to take his own advice on this.  But it's my submission that these issues just don't arise in the Commission's determination of the matters for the appeal.  If the Commission, for one reason or another – and I should say, it's the submissions of the respondent that these concerns were unfounded but if the Commission has got some sort of concern, there are other mechanisms, other bodies, which are the appropriate ones to deal with those concerns.


The Commission is not an inquisitorial or investigative body.  The Commission's function, with respect, is to consider the appeal based on the arguments brought before it and the grounds of appeal put before it, particularly by the appellant.  It's my submission, and I recognise the Commission has unfortunately already made a determination about the evidence, as I said, and it is submission that this evidence is actually not relevant to the Commission's determination of the issues on appeal.


It may well be relevant if the Commission was then asked to reconsider the approval of the agreement but the respondent is not asking the Commission to do that and, in fact, it said it would be withdrawing the application should the agreement be quashed on appeal.  So I will have to get some formal instructions on that, Vice President.  That's really the starting point of how I view this further information.


Again, this comes back to the issue of apprehended bias.  The Commission has made a decision apparently about the relevance of this material without giving the parties an opportunity to respond and the situation says if this matter was sought to be adduced, I would have to be convincing the Commission to change its mind.


It's made a decision about really what is a key point as to whether any evidence should be considered, leaving aside the issue of having new evidence on appeal but the issue is then, it is irrelevant in the sense it has already been decided by the Commission.  As I said in the submissions, we submit it's not got any (indistinct).


The matters which my friend, which the appellant has put on appeal, have raised in appeal, have been addressed in submissions.  This creates a whole set of new issues and, again, there's a real risk, if it hasn't already happened, that the Commission is going to be putting itself in the position of a party to the proceedings, advancing, prosecuting the same case, calling its own witnesses, judging the evidence of those witnesses and then handing down its decision.


I've circled back, I recognise, to apprehended bias but that is a strong reason why if the Commission is not satisfied that there is already a risk of apprehended bias, those concerns militate very strongly against the Commission making these orders for the reasons set out in 26 to 27 of my submissions and, as I said in paragraph 28 of the submissions, we say the evidence is not relevant.


VICE PRESIDENT HATCHER:  Does your client even wish to simply respond on the record, by way of instructions, to the matters of concern raised in the statement?


MR FREDERICKS:  I'll get some instructions on that and I if could have until close of business on Monday to inform the Commission whether they do wish to respond and if we do wish to respond, provide that response?


VICE PRESIDENT HATCHER:  With respect, Mr Fredericks, I find it extraordinary that you don't already have those instructions.


MR FREDERICKS:  It's not clear to me why I would have those instructions, Vice President.  I was here to deal with the issue of whether the orders should be made and also an application with respect to apprehended bias.  There was no suggestion that my client might be required to make some sort of public statement about the matters raised in the statement.


VICE PRESIDENT HATCHER:  You already have made a response in your submissions to some of them.


MR FREDERICKS:  I have and that my client is happy for me to make those submissions.  So I'm not submitting I need to do anything more.  I was responding to a question which you asked, Vice President.  I don't have instructions on that specific issue.


VICE PRESIDENT HATCHER:  Just I turn to your submissions, firstly, paragraph 17.  If that be read as meaning the four employees referred to in the statement were, in fact, employees of Hot Wok Food Makers in the dates identified in the statement or not?


MR FREDERICKS:  I don't have instructions on each of those employees, Vice President.  The, Vice President, I - - -


VICE PRESIDENT HATCHER:  Mr Fredericks - - -


MR FREDERICKS:  I do need to say something, Vice President.  I'm being drawn down a path here, in effect, going into issues which, in my submission, are not relevant to the Commission's consideration of the matters on appeal.  I flagged, the Commission raised two concerns through its email which are then repeated in the statement I have and various other material referred to in that, that I haven't seen.


But one of the concerns raised is there's identification of the Staff Services Pty Limited agreement applying to employees of Hot Wok.  The fact that that was said in the material that formed the application for approval has not been challenged or criticised by the appellant.  That seems to have effectively been something that I would have understood (indistinct) accepted.  The Commission seems to have, in its investigation, seems to have formed the view this is a matter of concern.  I was simply put in - - -


VICE PRESIDENT HATCHER:  Well, perhaps - - -


MR FREDERICKS:  - - - that there was effectively a fairy innocuous explanation for that.  My client is not required to go into evidence on that because it doesn't arise from a view of it.  If it's of any assistance and for the sake of completeness, there was a decision and I don't think this is a matter, a decision that's been alluded to in or referred to in the hearing to date.  Apologies if that's not correct.  There was a decision of Harper-Greenwell C on 10 February 2022 regarding Hot Wok Food Makers Pty Limited.


VICE PRESIDENT HATCHER:  Mr Fredericks, speaking for myself, I'm aware of the decision but the concerns in the statement relate to the period in which the agreement was negotiated and made.  If we turn to paragraph 17 of your submission, you've made that submission voluntarily.  I'm asking you a question about what it means.


MR FREDERICKS:  It means it was assessed, Vice President.  You're asking me to go down a path that I'm saying the Commission should not be going down and, again, it raises my concerns as to how this matter has been dealt with by the Commission.  I simply made the statement if they were employees of Staff Services who transferred to the respondent, then it's pretty clear that it's likely that by reason of part 2(a) that the Staff Services Pty Limited agreement would apply and that's recognised in the decision of Harper-Greenwell C.  That's all I have to say on paragraph 17.


VICE PRESIDENT HATCHER:  But it's the, 'if'.  You've said that it's a simple explanation and then I'm looking at the paragraph, the second sentence which appears to be the explanation.


MR FREDERICKS:  Maybe paragraph 17 – sorry, apologies, Vice President.


VICE PRESIDENT HATCHER:  And I'm asking you whether we are to read that as a statement that, in fact, the employees who apparently made this agreement were employees of Staff Services who transferred to the respondent prior to the agreement being made.  Are we to read it that way or is it simply a hypothetical?


MR FREDERICKS:  It's a hypothetical and I recognise it can be simply explained at paragraph 17 – it should be it might be simply explained.  But might be in the context where Harper-Greenwell C refers to five employees who may have been covered by the Staff Services agreement and so it seemed on the face of the material that that could well be the explanation but it's not necessary for me or my client to say any further than that.


VICE PRESIDENT HATCHER:  Just to make it clear, you're not prepared to say on record on behalf of your client that the four employees who made this agreement were, in fact, employees of your client at the time the vote for the agreement occurred.  Is that the position?


MR FREDERICKS:  Sorry, can I ask you to say that again, Vice President?  I'm concerned I might have misheard you.




MR FREDERICKS:  I am prepared to go on the record and say that they were employees of my client at the relevant time, yes.




MR FREDERICKS:  But if they transferred from Staff Services that award would have gone across with them.  Sorry, that enterprise agreement would have gone across with them.


VICE PRESIDENT HATCHER:  That's all I'm asking you, Mr Fredericks.


MR FREDERICKS:  Apologies if there's some confusion on my part, Vice President.


VICE PRESIDENT HATCHER:  Are we to read paragraph 17 as meaning that in fact the four employees who voted upon the agreement named in the statement were previously employees of Staff Services who transferred to the respondent, that is your client, prior to making the agreement?


MR FREDERICKS:  I don't think I would say that.  I think I have misunderstood what you're asking me to respond to.  I'm saying that they were employees of my client at the time of the vote.  Were all of them previously employees of Staff Services?  I simply don't know that.


VICE PRESIDENT HATCHER:  You at least confirm that the four named employees were employees of your client at the time the agreement was made?


MR FREDERICKS:  I've been instructed to that, yes, that is the case, Vice President.


VICE PRESIDENT HATCHER:  That disposes of that issue or perhaps it does, unless there's evidence to the contrary.  Just give me a second.  In paragraph 15(b) you've volunteered the factual statement that Ms Li does work which falls within the agreement by virtue of the role as clerical supervisor.  Have I read that correctly?


MR FREDERICKS:  Yes, having regard to what was identified in the statement, and this is all in the respondent's material that's set out in the statement.


VICE PRESIDENT HATCHER:  But does that involve an acceptance of the proposition that the time the agreement was made she held the role of HR coordinator?


MR FREDERICKS:  I haven't seen – I'm not sure what I'm being asked.  Could I just get my notes?  I'm saying what I'm saying in my submissions, Vice President, and I do object to these questions being asked.  They are not relevant for the Commission's determination of the matters on appeal.  They are not necessary for the Commission, in my respectful submission, to determine the matters of whether there are issues of apprehended bias or whether the provisional order should be made.  We say this information - - -




MR FREDERICKS:  And, Vice President, for me to be put on the spot and respond to documents which I hadn't seen again raises concerns as to how and why this statement was issued and the things that are being said by the Commission in it.  I put my submissions - - -


VICE PRESIDENT HATCHER:  That's noted, Mr - - -


MR FREDERICKS:  - - - and I stand - - -


VICE PRESIDENT HATCHER:  - - - Fredericks.  Now can we return to the question?  You volunteered a factual statement in 15(b) of your submissions.




VICE PRESIDENT HATCHER:  What's the relevance of your reference to the role of clerical supervisor?  Is that theoretical or hypothetical, or is it based on some construction of fact?


MR FREDERICKS:  It is observing what the Commission has said in – well, it's originally 3(b) in its email.




MR FREDERICKS:  And set out in paragraph 4 of the statement, about what it is that Ms Li did and I've observed that given that there is a classification in level 5, I think it is of the agreement, it may be that it's clear that she may well or she could well fall under that classification.  Again, so this was part of my submissions to say it's not appropriate for the Commission having regard to these issues, to form the view that Mr Latham might have acted improperly or that the respondent might have acted improperly to the extent that's inferred.


There are innocent explanations and all that needed to be said was, 'Look, there's some confusion, we need to clear that up.'  The Commission has done more than that, assuming these issues are relevant which we say they're not but all that needed to be said is, 'There's some confusion and we need to clear it up.'


VICE PRESIDENT HATCHER:  With respect, I thought we'd done that but, in any event, can you simply give a yes or no answer to this question, and that is:  are we to read clause 15(b) of your submission as involving an acceptance of a factual proposition that Ms Li was, at 11 May 2021, employed in the role of coordinator?


MR FREDERICKS:  It doesn't.




MR FREDERICKS:  I'm not saying she wasn't either.  I'm not making any admissions either way on that and, again, it's not appropriate that I be required to do that.


VICE PRESIDENT HATCHER:  Thank you.  Is there anything further you want to say, Mr Fredericks?


MR FREDERICKS:  Nothing further, Vice President.


VICE PRESIDENT HATCHER:  Unfortunately, we've run out – we haven't run out of time, we're running over time.  Mr Clift.


MR CLIFT:  I'll do my best to be brief, Vice President, thank you.




MR CLIFT:  First of all, I'd like to raise the unsatisfactory timing of the apprehended bias application.  We received my learned friend's submissions about an hour and 20 minutes before this hearing which was said to be a directions hearing.  It has severely circumscribed my ability to assist the Commission in those circumstances.  Notwithstanding that, I'll do my best.


VICE PRESIDENT HATCHER:  To save time, would it assist if we gave you an opportunity to say anything you want to say about it in response, say, by close of business Monday, noting that of course it's not your role in respect of such an application to act as a contradictor.


MR CLIFT:  Yes, I do not wish to avail myself of that opportunity, thank you, but it behoves me to make some observations in order to assist the Commission.




MR CLIFT:  I'll make some brief submissions in that regard.  Before I do, I'd like to turn to section 590 of the Fair Work Act which, as the authorities make abundantly clear, gives a broad discretionary power to the Commission to inform itself in relation to any matter before it and in the manner it considers appropriate.


It is only fettered as otherwise provided by the Act and the Commission, in my submission, has acted appropriately in its conduct of seeking further information from the respondent in this case.  It also bears observing that subsection 2(f) permits the Commission to conduct inquiries which certainly seems to be what occurred here.  There is a clear statutory mandate for what has occurred and it's well within Parliament's intention that the Commission undertakes the task that it has undertaken.


The email and subsequent statement is not an apprehension of bias.  It simply reflects dissatisfaction of the respondent's conduct on the part of the Commission.  The decision of Bond J in Parbery v QNI Metals Proprietary Limited [2018] QSC 213 with respect sets out in a very accessible way the applicable law which is uncontroversial.


There are two paragraphs I'd like to draw the Commission's attention to.  The first is paragraph 30 which restates part of what my learned friend has extracted from a decision of the High Court in Charisteas v Charisteas.  That is, there are two steps required in such an application:


(a)  first, the identification of what is said might lead the judge to decide the question otherwise than on its legal and factual merits;  and


(b)  second, the articulation of the logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits.


Neither of those steps is satisfied here and, indeed, my learned friend has not addressed the second step at all, in my respectful submission.  The aspects he has drawn the Commission's attention to in the statement again simply reflect the dissatisfaction of the respondent's conduct and would not lead a fair-minded observer to reasonably apprehend that the Commission might not bring an impartial mind.  In that respect, Bond J's observations at paragraph 32 of Parbery are apposite.  There his Honour observes that:


What is required for justice to be seen to be done is that it must be apparent to the fair-minded lay observer that the judge will bring to the resolution of the issues an impartial and unprejudiced mind which will decide the issues according to their factual and legal merits.  If such an observer might reasonably apprehend that the judge might not do that, then a case of apprehended bias is established.




But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.


Those are the circumstances the Commission finds itself in here and that is the thrust of my learned friend's hysterical, with respect, submissions.  It is not that the Commission will bring an impartial mind or an unprejudiced mind.  My learned friend is concerned that the Commission will decide issues adversely to his client and that is abundantly clear from his submissions.


That's all I wish to say about the apprehended bias application, Vice President.  Sorry, I withdraw that, there is one further thing.  Vice President Hatcher, you made the observation about my learned friend's submissions about lifting the corporate veil that were made in the hearing earlier last month and my learned friend said expressly that he does not act for Mr Latham.


There is on logical connection, in those circumstances, between what is said about the possibility of Mr Latham's conduct being intentional, for example, and the issue that the Commission might not determine the appeal in the manner that it should.  There is simply no logical connection whatsoever.


Lastly, with respect to the foreshadowed orders the Commission has articulated in its provisional view, they are unopposed by the Union and I simply make the observation that it's not unusual for a court or tribunal such as the Commission to require people to attend to be examined.  Plainly, the witnesses would be witnesses of the respondent.


They wouldn't be witnesses of the Commission, just like a court-appointed expert would be able to be cross-examined by the parties, so too would the witnesses be subject to, if my learned friend wishes, examination;  and if I wish, cross-examination.  The usual course in having a person required to attend is not a matter of any sort of unusual procedural concern giving rise to an apprehension of bias on the part of the tribunal which determines the fact.


These sorts of things happen all the time all around Australia and the submission that somehow the witnesses would become witnesses of the Commission and that evidence-in-chief would be led by the Commission is not one that should be countenanced with respect.  That's all I wish to say, I'm sorry for doing so in such a hurried manner.


VICE PRESIDENT HATCHER:  No, that's all right.  Mr Clift, as to the practicalities of what would be involved in calling those witnesses, Mr Fredericks made some comments about that, what do you say would be involved in that process?  That is, what would be a proper way to examine witnesses called pursuant to an order made by the Commission's own motion?


MR CLIFT:  That they be required to attend by subpoena or similar document.  That their identity be confirmed and that they be available for, if they wish to be or if the respondent wishes to call them then the respondent can adduce evidence of their identity.  If not, then there's no reason why the Commission can't adduce of their identity.  Then if my learned friend and his client don't wish to have them as witnesses in their case, then they be available for cross-examination by both parties, just like any other court-appointed witness would be.


VICE PRESIDENT HATCHER:  Thank you.  Anything briefly in reply, Mr Fredericks?


MR FREDERICKS:  Yes, very briefly because I recognise we are out of time, Vice President.  The issue of the comparison with court-appointed experts with respect to my friend doesn't stand.  Where that situation arises there is usually lengthy rules, et cetera, about how that occurs there, effectively independently of the parties.  I just can't see that's a valid comparison.


Secondly, as you said, Vice President, my friend to be fair is not acting as a contradictor on the apprehended bias point but he said that I need to make clear the clear departure from the Commission deciding the case on its merits looking at the second step, we say arises from the issues that I have set out.


What the Commission has said in the statement, the steps that it took leading up to the statement, the fact it's now putting issues in the appeal that weren't raised by the parties and is effectively seeking to introduce its own evidence into the appeal.  In the interests of time I'll keep it brief but we say the points that I have raised would reasonably lead a bystander or, in fact, the respondent to fear that the Commission will not decide the appeal on its merits.


VICE PRESIDENT HATCHER:  Thank you.  We thank the parties for their submissions.  We'll reserve our decision on the matters that have been dealt with today and we'll now adjourn.

ADJOURNED INDEFINITELY                                                            [2.10 PM]