Fair Work Act 2009_

s.210 - Application for approval of a variation of an enterprise agreement

Application for variation of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798) - apprehension of bias.

[1] An application pursuant to s.210 of the Fair Work Act 2009 ("the Act") has been made by LCR Group Pty Ltd for the approval of a variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798) ("the Agreement").

[2] This decision follows the determination of a number of objections raised to the approval of the Agreement (as sought to be varied) by the CFMEU, which was covered by the Agreement as originally approved by the Commission. These matters are set out in [2015] FWC 7311 ("the prior decision"). Following the prior decision being published and the objections raised by the CFMEU having been dismissed, I turned to consider the approval of the Agreement variation against the wider requirements of the Act.

[3] However, in respect of this task, the CFMEU has asked that I recuse myself from consideration of the variation approval for two reasons.

[4] Firstly, the CFMEU argues that I should do so because my decision making in relation to the Agreement is tainted for reasons that I engaged in an ex parte conversation with the Applicant's legal representative without the knowledge of the CFMEU, which claimed that it was "a bargaining representative", about matters that went to the approval of the variation application.

[5] Secondly, the CFMEU also asked that I should recuse myself on the ground it had been informed that I was an acquaintance of a person by the name of Mr Len Gillespie, who appears to be the General Manager of LCR Group Pty Ltd.

[6] The CFMEU also subsequently suggested that Mr Gillespie was said to be "an old school acquaintance" of mine and led affidavit material to this end demonstrating how it came to form such a belief.

[7] The CFMEU's claims in this regard arise from statements provided by two CFMEU officials who contend that whilst waiting to give evidence they overheard comments to this effect from Mr Gillespie outside the Commission's hearing room on 3 August 2015.

[8] As it was, nothing about this matter was brought to my attention by the CFMEU until after such time as the hearings (of 3 August, 1 September and 19 October 2015) had been completed and the prior decision published - with the relevant affidavits being filed on 4 December 2015.

[9] Mr Gillespie for his part denied ever making any such comments or purporting to hold the relevant relationship.

[10] It was claimed by the CFMEU that such an undisclosed relationship, if made out, would give a fair minded and informed observer cause to consider that the Commission as presently constituted would not bring an impartial mind to the approval process.

[11] Having examined the materials put to me in relation to these matters I have determined that I do not need to convene hearing to determine the application. Whilst there may be contested facts in relation to what was said outside the hearing room on the first day of hearings on 3 August 2015, the resolution of those claims is irrelevant to the determination I must make. The argument more largely proceeds by way of submission. My reasoning in relation to the application is as follows.

[12] In respect of the claim that I should recuse myself for reasons of an improper communication with the legal representative of the Applicant, I disclosed on request of the CFMEU the totality of my interactions with the legal representative for LCR in the following terms:

"In order to expedite the further considerations in relation to the approval of the Agreement variation upon the CFMEU objections having been dismissed, the Senior Deputy President spoke directly with Ms McCartney by telephone on or about 16 November 2015 and advised that consideration should be given to the agreement signature requirements stipulated in the Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and another v Sustaining Works Pty Limited [2015] FWCFB 4422. At that time the Senior Deputy President advised that any changes would need to be copied to the CFMEU.

On or about 19 November chambers received a voice message from a colleague of Ms McCartney, asking whether, if the Applicant sought to amend the application (amend the signature page), such an application to amend needed to be 'formal'/on a specific form or would a letter or similar be sufficient. A brief response to this query, as well as a copy of the signature page approved by the Full Bench in the above decision was directed to Ms McCartney from chambers on 20 November 2015.

A copy of that email, which again noted that if any amendment was sought it must be copied to the CFMEU, is attached."

Ms McCartney's response was received on 26 November, and was copied to the CFMEU for its consideration as required.

There have been no other communications with the representative of LCR […]"

[13] The email response referred to above (and as has been provided to the CFMEU) included the following words (from my Associate):

I refer to a message from Claire Duffield yesterday afternoon - if the employer seeks to amend the signature page/s, an explanatory 'cover letter' accompanying the amended page/s will be sufficient. The document/correspondence should be copied to the CFMEU at the time of filing with the Commission.

Also for reference, attached is an amended signature page, received by a recent Full Bench where the initial signature page was found to be not in accordance with the Regulations.

[14] The Commission will ordinarily bring to the attention of an applicant in relation to the approval of an agreement (be it an employer or a union) where it has potential concerns about a procedural or technical requirement such as the satisfaction of the signature requirements required under the regulations for an agreement, the absence of requisite forms, or incomplete documentation, or where applications and declarations are incomplete or missing.

[15] The Commission will do so where an applicant is not itself cognisant of the omission or deficiency, and with the intention of enabling an applicant to rectify a procedural omission or technical defect of a relevant kind prior to formal consideration. The Commission does not knowingly allow agreement applications, or other applications, to fail for reason of procedural omissions or technical deficiencies. The Commission conducts itself so not solely in relation to agreement approval applications but also in respect of all manner of other applications made under the Act; it does so to assist the parties in their engagement in the jurisdiction and to ensure delay is not incurred by technical omissions.

[16] In the current case, for example, the approval signatures included an abbreviated given name ("Rick" instead of "Richard"), which on the authority of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers' Union v Sustaining Works Pty Limited [2015] FWCFB 4422 may not meet the requirements of Regulation 2.06A(2) of the Fair Work Regulations 2009 (see PN 29-30).

[17] The applicant in this case filed an amended signature block (inclusive of the varied agreement in its totality) and copied the same to the CFMEU. The CFMEU was thereafter provided a period of time in which to make any further submission it wished to make in regards to the amended application for variation of the relevant agreement.

Conclusion in relation to ex parte communications

[18] Upon consideration of the authorities in the field as were put to me in relation to apprehended bias, and the circumstances in which a member of the court might interact in private with a party in adversarial litigation, it is not evident to me that the CFMEU, irrespective of its status in these proceedings, in any material manner has been denied procedural fairness, or that a fair minded observer considering the conduct of the Commission as disclosed in the particular context would form a view the Commission would not impartially assess the outstanding largely procedural issues in relation to the agreement approval process.

[19] In respect of the further claims as to my purported relationship with the General Manager of LCR, I responded to the CFMEU in the following terms upon the matter being first raised:

"The Senior Deputy President indicates that he has no recollection of having ever made the acquaintance of any person by the name of Mr Len Gillespie, let alone any person associated with the business of LCR Group Pty Ltd generally […]"

[20] In respect of the further claim (or how otherwise described) that a Mr Len Gillespie was said have been an "old school acquaintance", I indicate also that I have no recollection of any acquaintance having been made let alone relationship formed whatsoever with the person as identified by the CFMEU. The individual in question - Mr Len Gillespie - therefore is wholly unknown to me.

[21] Again, as I have indicated above, Mr Gillespie, for his part, filed an affidavit claiming that he had made no such claims but had spoken in different terms altogether.

Conclusion in relation to prior relationships

[22] I therefore dismiss the further application, as it is, that I recuse myself for reason of an undisclosed relationship with a person with a direct interest in the application before me.

[23] The argument from LCR is that I should proceed to determine the matter without further recourse to the CFMEU. It contends that the CFMEU's interest was discharged upon the publication of the prior decision, which dealt with matters in which it may have had an interest. But those matters having been discharged, the CFMEU had no standing to further seek a role in the variation approval process. There is some arguable merit to this argument in the context of the decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at PNS 66-67 and 70. However, as the same Full Bench observed, the Commission must provide an opportunity for an employee organisation to be heard separately from the substantive matter in relation in relation to any such prospective action on the Commission's part. The Full Bench also observed (at PN76) that the Commission has a discretion to inform itself broadly under s.590 about matters before it and in any form it seeks.

[24] In my view, given the advanced state of the proceedings and that I had originally intended that the CFMEU be provided a copy of the amended application (referred to above), my final deliberation would be best served by hearing through written submission from the CFMEU at this time.

[25] Whilst I will rely upon what is before me for that purpose any further submission in relation to other matters such as the adequacy of the amended signatures to the application should be filed no later than 12 midday on 8 January 2016.

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