DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Watpac Construction Pty Ltd T/A Watpac Construction
(C2019/1239, C2019/1559)

Appeals against decisions of Commissioner Hunt – [2019] FWC 405 on 15 February 2019 and decision conveyed by email to the parties on 28 February 2019 in matter number C2018/6736 – Commissioner’s refusal to recuse herself – parties have the right to object to Members arbitrating a matter once they have been involved in conciliation – no appealable error – appeals dismissed – consideration of whether dispute should be reallocated to another Member for arbitration in particular circumstances once conciliation has concluded.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged two appeals with the Fair Work Commission (the Commission), for which permission to appeal is required. The two appeals are against a decision (Decision) of Commissioner Hunt on 15 February 2019 1, and a further decision conveyed by email to the parties on 28 February 2019.

[2] The Commissioner made the decisions under appeal in the course of dealing with a dispute under s.739 of the Fair Work Act 2009 ((FW Act), in accordance with the dispute settlement procedure (DSP) in the Watpac Construction Qld and NT and CFMEU Union Collective Agreement 2015-2019 (the enterprise agreement). The enterprise agreement provides for conciliation and arbitration by the Commission of certain disputes. The decisions under appeal concerned applications by the CFMMEU for the Commissioner to recuse herself from arbitrating the dispute on the basis of a reasonable apprehension of bias.

[3] The CFMMEU’s initial recusal application was based on certain things the Commissioner had said and done whilst she was conciliating the dispute. The Commissioner declined to recuse herself.

[4] The dispute had been referred to the Commission by Watpac Construction Pty Ltd T/A Watpac Construction (Watpac). It concerns a requirement by Watpac that its employees on the Hersten Quarter Redevelopment Project use swipe cards to enter and leave the construction site through a turnstile and gate.

[5] On receipt of the dispute application, the Commissioner convened a conciliation conference on 14 December 2018. That conference was not recorded. However, the broad description of the conference the Commissioner provided in the Decision does not appear to be in contest.

[6] In the Decision, the Commissioner said that during the conference Watpac described the introduction of the swipe pass at the construction site and its reasons for so doing. According to the Commissioner, about halfway through the conference, Watpac asked her to make a recommendation to ‘encourage the use of the swipe card system, on account that it had been in place for almost one year until the recent objection.’ 2

[7] The Commissioner said that throughout the conference, the CFMMEU had indicated it had concerns relating to safety onsite, including how workers could safely evacuate in the event of an emergency. She outlined a discussion that took place about a resolution recently passed by the site safety committee to remove the gate and turnstile connected to the swipe card system. The Commissioner then stated:

‘After hearing from the parties for approximately 40 minutes (my recollection), I recall asking Mr Borg [the CFMMEU representative] his position on Watpac’s right to implement the swipe card system, noting that Watpac asserted that it was reasonable and lawful. Mr Borg continued with submissions relevant to safety, access and egress, emergency signs and the like. It is my best recollection that I responded to the effect:

“You’ve told me about the safety concerns. But the substantive issue in this matter that the applicant wants determined is whether it can enforce the swipe cards being used. Isn’t the safety issues you raise a smokebomb against the substantive matter?”

I had, by this time heard a very great deal about the safety concerns held by the CFMMEU. I had heard little to no submissions relevant to the reasonableness or otherwise of the swipe card system, notwithstanding the safety and privacy concerns held by the CFMMEU. I was redirecting Mr Borg to provide some submissions on the substantive issue other than those opposed on safety concerns.

It is important to note that I do not have a recording of what I said or asked, nor did I make contemporaneous notes. The above is my best recollection as to what I said and asked.

I recall that Mr Borg took exception to my use of the word ‘smokebomb’. He made further submissions on safety and privacy.’ 3

[8] According to the Commissioner, Watpac then suggested it might be able to build an additional gate at the site, to allow more evacuation points. There was some discussion about when such a gate could be built. The Commissioner said in the Decision:

‘I offered to the parties my availability to attend a site visit the following week to review all of the evacuation points, the meal areas, the canteen, and the third gate.

At the conclusion of the conference dates were set for the filing of material, including what the question(s) for arbitration should be. I advised that I was not minded to make a recommendation on the information before me. Directions were then formally sent to the parties by email.’ 4

[9] On 15 December 2018, the CFMMEU wrote an email to the Commission that included the following:

‘We note that the Directions do not record the Commissioner’s intention to visit the site amenities compound at Herston, as raised by her at the Conference.

Whilst the CFMEU opposes the Commissioner’s further involvement in this matter (and does not consent to such), we ask that we be advised of the time and date of the visit in good time to arrange for the attendance of relevant personnel of the CFMMEU and others as necessary.’ 5

[10] The parties subsequently exchanged correspondence, which dealt, inter alia, with the appropriate questions for arbitration. The CFMMEU suggested in an email sent on 20 December 2018 that a number of jurisdictional questions needed to be dealt with. In addition, the CFMMEU suggested the following questions concerning apprehension of bias:

‘Might a fair-minded lay observer reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions she is required to arbitrate in circumstances where:

a. The Commissioner has been privy to without prejudice discussions during a conference hearing; and in which

b. The Commissioner described work health and safety issues raised by the Respondent as a “smokebomb”; and where

c. The Commissioner proposes to issue a recommendation?’ 6

[11] The Commissioner attended the site on 21 December 2018 with representatives of the parties. In the Decision, she said:

‘I observed a banner that referenced the Fair Work Commission, safety, and I recall it stated something to the effect that the Commission did not have jurisdiction on safety. Another banner read, “FAIR WORK COMMISSION STAY OUT OF SAFETY!!” It is Mr Borg’s cover photo on his Facebook page, posted on 21 December 2018.’ 7

[12] The Commissioner said that towards the end of the site visit, she advised those present that she would not be prepared to make a recommendation until such time as the third gate was complete and it provided a further evacuation point in addition to the gate, turnstile and northern route. 8

[13] The Commissioner subsequently held a hearing concerning the CFMMEU’s recusal application. In the Decision, the Commissioner said that only one utterance formed the basis of the recusal application, namely her alleged description of work and health and safety issues raised by the CFMMEU as a ‘smokebomb’.

[14] During the hearing before the Commissioner, Mr Borg, on behalf the CFMMEU, said that while she was perfectly entitled to make the comment she did,

‘… The consequence however of you saying that at that juncture is that you ought to recuse yourself from arbitrating the matter because you had made an utterance about … the matter which is in issue and which goes to the issues that are set down to be determined in arbitration.’ 9

[15] In the Decision, the Commissioner rejected the proposition that there was any general rule that a Member of the Commission should not arbitrate a matter if the Member had conciliated the matter. 10

[16] The Commissioner then turned to apply the well-known test concerning reasonable apprehension of bias in Ebner. 11 She first discussed what she said during the conciliation conference. She did not make a clear finding, though she said her ‘best recollection’ is that she said:

‘You’ve told me about the safety concerns. But the substantive issue in this matter that the applicant wants determined is whether it can enforce the swipe cards being used. Isn’t the safety issues you raise a smokebomb against the substantive matter?’ 12

[17] However, the Commissioner also referred to the notes made by Watpac representative (Mr Giles), which reported her as saying:

‘Think you’re bringing a smoke bomb in. Not dealing with the swipe card issue at all.’ 13

[18] Somewhat confusingly, the Commissioner also said in the Decision:

‘I consider my recollection of the words used by me during the conference, together with Mr Giles’ notes to be the closest accounts of what was actually said by me.’ 14

[19] We observe that there is in fact quite some difference between the Commissioner’s own account of what she said and that recorded in Mr Giles’s notes. In particular, the Commissioner’s own recollection was that she had posed a question as to whether the health and safety issues the CFMMEU had raised were a ‘smokebomb’ (that is, a diversionary tactic), whereas the notes made by the Watpac representative suggest that she had positively expressed the view that the issues were a ‘smokebomb’.

[20] The Commissioner noted that:

‘With the passing of time, all parties, including the Commission have had to do their best to recollect what was said.’ 15

[21] The Commissioner said that the reason she undertook the subsequent site visit was to understand the safety issues raised by the CFMMEU. 16

[22] The Commissioner concluded:

‘In some circumstances, participation in a conciliation conference, and then arbitration of the matter by the same Member may give rise to relevant concerns of apprehended bias, but not necessarily so. Whether concerns of apprehended bias arise will depend upon the nature of the conciliation process and statements made by the Commission in the course of those processes.

In this case, the manner in which the conciliation was conducted, the context of the statement made by me, and the ongoing conciliation and consideration of a recommendation does not support any such concerns. There is no basis that a fair-minded observer would form the view that I had a fixed view of the jurisdictional or substantive issue to which it may be expected that I would adhere, regardless of the evidence or the submissions made by the CFMMEU.

There can be no basis for concern that the feared deviation from the course of deciding the case on the merits is that I won’t have proper regard to safety concerns raised by the CFMMEU in determining the lawfulness or otherwise of the direction by Watpac for employees to use the swipe passes.

The factors leading to that conclusion include:

(a) The word “smokebomb” was used as a question by the Commission to elicit redirection of submissions as the Commission had already heard substantive submissions on safety concerns;

(b) Against the wishes of Watpac, no recommendation was made by the Commission;

(c) At the Commission’s initiative a site visit was organised;

(d) The CFMMEU, its organisers and members present knew that the Commission was in attendance relevant to safety concerns of the CFMMEU and its members;

(e) Safety concerns were raised by the Commission during the site visit;

(f) No recommendation has been issued following the site visit as the Commission has not been informed of the progress of the third gate or satisfied as to its effective use as an alternative point of egress;

(g) Relevant changes have been made to the questions for arbitration, including framing the substantive issues around safety and privacy concerns.

There is no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of questions that the Commission is required to decide.

I determine that it is not necessary or appropriate to recuse myself from continuing to deal with the application.’ 17

[23] On 21 February 2019, the CFMMEU’s representative wrote to the Commissioner, noting that at paragraph 36 of the Decision, she had stated:

‘I observed a banner that referenced the Fair Work Commission, safety, and I recall it stated something to the effect that the Commission did not have jurisdiction on safety. Another banner read, “FAIR WORK COMMISSION STAY OUT OF SAFETY!!” It is Mr Borg’s cover photo on his Facebook page, posted on 21 December 2018.’

[24] The CFMMEU’s letter noted that Mr Borg’s Facebook page cover photo was not in evidence before the Commission and was not raised with the parties either during or following the hearing of the recusal application. It continued:

‘The respondents are, therefore, at a loss to understand how Mr Borg’s Facebook page could have come to the attention of the commission in the current proceeding.’

[25] The letter asked for the matter to be listed to address this.

[26] On 26 February 2019, the Commissioner’s associate sent an email to the parties indicating that the Commissioner declined the request to have the matter listed. However, the email included the Commissioner’s advice that:

•  no other party or person brought the picture on Mr Borg’s Facebook page to her attention;

•  the Commissioner discovered the picture;

•  the Commissioner did so on 28 January 2019;

•  Mr Borg’s Facebook profile allows the viewing of his profile picture and cover picture to any person on Facebook and therefore it is a publicly viewable document;

•  upon seeing the cover picture, posted 21 December 2018, the Commissioner concluded that the picture was of the same banner she observed during the site visit of 21 December 2018;

•  the Commissioner concluded that the picture assisted in aiding what was on the two banners that she observed during the site visit – one said something in reference to the jurisdiction of the Commission, and this second banner said the words, ‘FAIR WORK COMMISSION STAY OUT OF SAFETY!!’;

•  the Commissioner considered the banners displayed to have some relevance to the recusal application, given the submissions made at the hearing and the references to the ‘chanting’ during the site visit referenced by the Commissioner during the hearing;

•  the Commissioner did not consider it necessary to request Mr Borg verify, post-hearing, that it was the same banner at the site, given she expected that if he posted it on 21 December 2018, the day of the site visit, he would be highly unlikely to advise the Commission that it was not the banner displayed at the site visit;

•  the Commissioner included the sentence, “It is Mr Borg’s cover photo on his Facebook page, posted on 21 December 2018” for reference only.

[27] On 28 February 2019, the CFMMEU made a further application for Commissioner Hunt to recuse herself on the grounds that a fair-minded observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the hearing of the matter in circumstances where:

•  the Commissioner accessed Mr Borg’s personal Facebook page following the hearing of the previous recusal application of her own motion and without prior notice to the parties;

•  after accessing the Facebook page, the Commissioner did not notify the parties or provide them the opportunity to be heard in that regard before issuing the Decision; and

•  it is not apparent from the email of 26 February 2019 how the Commissioner ‘discovered’ the picture or why she accessed Mr Borg’s personal Facebook page at all.

[28] The Commissioner declined to deal with this second recusal application, and indicated this was a matter for the Full Bench hearing the appeal.

Consideration

[29] The principles relating to disqualification on the ground of apprehended bias are not seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy 18 and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2)19 as follows:

‘The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.

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

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

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

In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).

The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].

However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:

“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature” (at [139]). (Emphasis in original.)

The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]

These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.

To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.

Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.

A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).

As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.

In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:

“The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.”

In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.

However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.” 20

[30] We are not satisfied that the Commissioner’s reference to a ‘smokebomb’, seen in context, constitutes grounds for finding that there is a reasonable apprehension of bias. It is clear that the Commissioner was raising the notion that the CFMMEU’s submissions about safety could be seen as a diversion from the real issue at stake in the dispute. However it also clear that the Commissioner did in fact take those submissions seriously – most obviously by undertaking the site visit and not making the recommendation sought by Watpac. In all the circumstances, we are not satisfied that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question the Commissioner was required to decide.

[31] We consider the Commissioner’s reference to Mr Borg’s personal Facebook page in the Decision, at least without giving the parties an opportunity to consider the matter and make submissions about it, was inappropriate and constituted a denial of natural justice. However we are not satisfied that in itself it provides a ground for finding a reasonable apprehension of bias. At most it seems a passing reference of little consequence. In all the circumstances, we are not satisfied that the denial of natural justice could have had any bearing on the outcome of the recusal applications. 21

[32] In summary we are not satisfied that the Commissioner made any appealable error in refusing to recuse herself on the grounds of a reasonable apprehension of bias. For that reason the appeals must be dismissed.

[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.’ 22

[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.

SENIOR DEPUTY PRESIDENT

Appearances:

R Reitano, counsel, with J Kennedy, solicitor, for the Construction, Forestry, Maritime, Mining and Energy Union.

T Spence, counsel, with M Giles, solicitor, for Watpac Construction Pty Ltd.

Hearing details:

Sydney with video link to Brisbane.

2019.

April 15.

Printed by authority of the Commonwealth Government Printer

<PR708991>

 1   [2019] FWC 405.

 2   Ibid [14].

 3   Ibid [21]-[24].

 4   Ibid [27]-[28].

 5   Ibid [29].

 6   Ibid [32].

 7   Ibid [36].

 8   Ibid [39].

 9   Ibid [60].

 10   Ibid [120].

 11   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

 12   [2019] FWC 405 [128].

 13   Ibid [130].

 14   Ibid [133].

 15   Ibid [143].

 16   Ibid [156].

 17   Ibid [160]-[165].

 18   [2000] HCA 63, (2000) 205 CLR 337.

 19   (2011) 202 FCR 439.

 20   Ibid at [441] – [443], [8] – [23].

 21   City of Stirling v Mr Kevin Emery [2018] FWCFB 2279 at [37]-[38].

 22   Commonwealth, Australian Industrial Relations Law and Systems: Report of the Committee of Review, Parl Paper No 236 (1985) 583.