Fair Work Act 2009

s.604 - Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union

Watpac Construction Pty Ltd T/A Watpac Construction

Appeals against decision [2019] FWC 405 of Commissioner Hunt at Brisbane on 15 February 2019 and decision in email on 28 February 2019 in matter number C2018/6736 - appellant's application for recusal - recusal application refused.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made two applications to appeal decisions by Commissioner Hunt.[1] The CFMMEU has applied for me to recuse myself from being on the Full Bench that is scheduled to consider those appeals.

[2] The CFMMEU's application that I recuse myself was heard on 13 March 2019. The CFMMEU was represented by L Doust of counsel.

[3] The decision under appeal concerns a dispute involving members of the Construction and General Division of the CFMMEU. The basis for the recusal application is that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of the issues in the appeals.

1. The matters relied upon by the CFMMEU in making the application have already been dealt with by a Full Bench of the Commission (the Full Bench decision).[2] The subject matter of the recusal application dealt with in the Full Bench decision was my retweet of a tweet that had originally been published by then-Minister for Employment, Senator Cash. I also note that the CFMMEU has applied to the Federal Court of Australia for a writ quashing the Full Bench decision.

2. The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated by Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner.[3] They involve a two-step process:

1. Identification of what is said might lead the decision-maker to decide a case other than on its legal and factual merits; and

2. An articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

[6] The Full Bench decision assumed (without deciding) that the act of retweeting Senator Cash's original tweet constituted an endorsement of the opinions in the original tweet. The Full Bench stated in relation to the original tweet:

'The headline ["CMEU notches up 100 members before the courts"] relates to the fact that a large number of the CFMMEU's officials and members had been subject of proceedings in the courts for contraventions of civil remedy provisions of the FW Act and other Commonwealth legislation.'

1. The Full Bench noted that in this context the reference to 'a Century of Shame' at the bottom of the tweet 'may be regarded as targeted in a subsidiary way at the CFMMEU' and possibly to those officials and members who constituted the '100 members before courts'.[4]

[8] The Full Bench rejected the claim that there was a 'logical connection' between the retweet and the matters to be determined in the substantive application before me at the time - being whether certain officials of the CFMMEU were fit and proper persons to be issued with entry permits.

1. The Full Bench did this partly on the basis that the 'fit and proper person test' is necessarily concerned with the personal characteristics of the person for whom the entry permit is sought.[5] However, it continued:

'[19] Our conclusion on that score is fortified by the fact that the Senior Deputy President has, since the "retweet" was taken down, decided a number of matters concerning the CFMMEU and/or its officials without any complaint about his impartiality. Although, as the CFMMEU submitted, many of these matters were not contentious and were merely administrative in nature, a number of them were not. The schedule of matters annexed to the CFMMEU's written submissions shows, for example, that the Senior Deputy President sat as a member of Full Benches in a number of significant and highly contentious appeals which were decided in favour of the CFMMEU. The Senior Deputy President has also sat alone on a number of contentious matters involving the termination of enterprise agreements... No recusal application was made by the CFMMEU in respect of any of these matters, nor did the CFMMEU appeal or seek judicial review in respect of any of these decisions which were decided adversely to its interests on the grounds that there was any actual or perceived lack of impartiality on the part of the Senior Deputy President. We consider that the fair-minded observer, who would be taken to be aware of the objective background history, would not reasonably apprehend that the Senior Deputy President might not impartially decide the current matters...'. [6] [references omitted]

[10] I am satisfied that even if one were to take the view that the retweet could have created a reasonable apprehension of bias, that apprehension would have been eradicated by my subsequent conduct, as observed by the Full Bench. I do not consider that, in the light of all the relevant circumstances, a fair-minded observer would have a reasonable basis to fear that I might not deal with the appeals against Commissioner Hunt's decision in an impartial manner.

[11] Accordingly, I refuse the CFMMEU's recusal application. I do not consider there are any other grounds on which I should decline to sit as a member of the Full Bench that will consider the CFMMEU's applications to appeal Commissioner Hunt's decision.

L Doust, counsel, with J Kennedy, solicitor, for the appellant.

[The respondent did not seek to be heard on the recusal application.]

1. [1] Watpac Construction Pty Ltd t/as Watpac Construction v CFMMEU; Mr Kurt Pauls [2019] FWC 405, and a decision given in email from the Commissioner's chambers on 28 February 2019.
2. [2] Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 214.
3. [3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
4. [4] [2019] FWCFB 214 [13].
5. [5] Ibid [17]-[18].
6. [6] Ibid [19].

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