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[2017] FWCFB 5839
Fair Work Commission (Full Bench)
2017-11-08
Original judgment source is linked above.
Appeal against decision [2017] FWC 4300 of Commissioner Hunt at Brisbane on 14 September 2017 in matter number C2017/2715.
[1] On 14 September 2017, Commissioner Hunt issued a Decision,[1] in which she found that the general dissatisfaction expressed by Mr Hunter (Appellant) with the Fair Work Commission (FWC) and herself specifically did not form a basis upon which the Commissioner would recuse herself from determining the matter. The Commissioner also found that the application made under s.365 of the Fair Work Act 2009 (Cth) (Act) was resolved and, therefore, declined to issue a certificate pursuant to s.368 of the Act.
[2] On 5 October 2017, the Appellant lodged a Notice of Appeal, appealing the Decision of Commissioner Hunt. We heard the appeal on 1 November 2017 and reserved our Decision. At the hearing, the Appellant appeared for himself and Mr A. Costello appeared for Anthony Costello Automotive (Respondent).
[3] The Commissioner summarised her account of the events that took place during the teleconference she convened between the Appellant and the Respondent on 20 July 2017. The Commissioner concluded by noting that the teleconference on 20 July 2017 had been settled and that the terms of settlements were drafted to be signed by the parties.
[4] The Commissioner's Associate sent correspondence to the parties after the teleconference stating, in particular:
'... The Canberra Registry have [sic] been provided with a copy of this deed, should either party require assistance with printing or scanning the document and forwarding it to the other party.'
[5] Following the teleconference, the Commissioner noted that the Respondent corresponded with her chambers, stating that he had immediately made payment to the Appellant's bank account reflecting the nine days' annual leave pursuant to the agreed terms of settlement. The Commissioner noted that the superannuation payment would be remitted to the Appellant's superannuation account in the next quarterly payment by the Respondent.
[6] On 24 July 2017, the Commissioner noted the Appellant sent correspondence to her chambers stating that 'this matter is not resolved'. As a result of this correspondence, the Commissioner issued directions to the parties requiring them to file submissions as to why a certificate should be issued. In response to these directions on 4 August 2017, the Appellant informed the Commissioner of a complaint he made against her and, in particular, he stated:
'Please refer to Melbourne as I believe it's unethical to communicate with this office, as I have complained about your conduct.'
[7] It is apparent that the Commissioner regarded the Appellant's complaints about her as a request to recuse herself from determining the matter on the basis of an allegation of apprehended bias.
[8] In considering the apprehended bias application, the Commissioner held that the general dissatisfaction expressed by the Appellant with the FWC and herself specifically did not form a basis upon which the Commissioner would recuse herself from determining the matter. The Commissioner also found that the application made under s.365 of the Act was resolved and, therefore, declined to issue a certificate pursuant to s.368 of the Act.
[10] The Appellant did not file an appeal book, nor lodge any written submissions.
[11] The Appellant contended in his Notice of Appeal that he was bullied by Commissioner Hunt; that he never attended the Canberra registry; and his 'F8 Application' was not heard.
[12] Further, the Appellant made further contentions at the hearing on 1 November 2017, which can be summarised by the following extract from transcript at PN40-42:
'MR HUNTER: But the F8 application hasn't been heard. I asked a number of times at the start of the conference, which is private and confidential, but I think - I've read her notes. She admits this - and I asked for the two matters to be heard separate.
I had legal advice explaining to me that they would be heard separate, then I found out the two matters would be tied together, then she showed bias towards Mr Costello and took control of the meeting, heard the F8C application, which the advice I got from everyone was I was not going to suffer in that. It was going to go a favourable decision to my way, and what I'm appealing is why the matter was rolled into one meeting for two matters then the F8 application wasn't heard. That's quite simple.
I'll just add one more thing. The thing that must be difficult for three people in Melbourne is that it's a private conversation, so can't be taped, can't be recorded. All I can do is state the facts that I was never given the opportunity to talk about - present anything with the F8 application, which is why I'm here today.'[2]
[14] The Respondent's submissions can be briefly summarised as follows.
[15] The Respondent contended that the Commissioner determined that both the s.365 and s.372 application should be heard together, and that no concern was expressed by either party in relation to this course prior to the teleconference on 20 July 2017.
[16] Further, the Respondent submitted that at [25] of the Decision, Commissioner Hunt outlined that payment by the Respondent to the Appellant would resolve all of the Appellant's claims. The Respondent asserted that the Decision indicates that both parties had agreed on the terms of settlement and that it was clear that the Appellant had agreed to the settlement as described by the Commissioner.
[17] The Respondent elected not to make any submissions in relation to the application for apprehended bias.[3]
[18] The Commission will grant permission to appeal if it is in the public interest to do so.[4] The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.[5] In GlaxoSmithKline Australia Pty Ltd v Colin Makin,[6] the Full Bench summarised the test for determining the public interest as follows:
"[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O'Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case."
[19] Alternately, other grounds on which permission to appeal may be granted include the decision being attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused.[7] It will rarely, if ever, be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as an appeal cannot succeed in the absence of such error.[8] However, the mere identification of some error in the decision under appeal may not by itself constitute a sufficient basis for the grant of permission to appeal.[9]
[20] In determining whether permission to appeal should be granted, we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[21] We find that permission to appeal should be granted in this matter. We are of the view that the appeal raises important questions concerning whether the Commissioner should have recused herself on grounds of apprehended bias, and whether she correctly applied s.365 and s.368 of the Act. We consider these to be important matters and, therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.
[22] On 4 August 2017, the Appellant sent the following correspondence to Commissioner Hunt's chambers:
'I was bullied by Commissioner Hunt the whole conference.
It's my constitutional right to have my time before the Fair Work Commissioner.
I have filed a complaint against Commissioner Hunt.
I WANT MY TIME IN FRONT OF THE FAIR WORK COMMISSIONER TO HEAR THE F8 application.
Please refer to Melbourne as I believe it's unethical to communicate with this office, as I have complained about your conduct.'
[23] In relation to this correspondence, the Commissioner noted at [47] of her Decision that:
[24] At [78] and [79] of her Decision, the Commissioner found that the Appellant had not made out his arguments in relation to the application for apprehended bias and refused to recuse herself from determining the matter. The Commissioner then determined the substantive matter before her by finding that the application made under s.365 of the Act was resolved and declined to issue a certificate pursuant to s.368 of the Act at [106] of her Decision.
[25] In Concrete Pty Limited v Parramatta Design and Developments Pty Ltd[11] ('Parramatta Design'), the High Court held that:
'An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues.'[12]
[26] Therefore, any hearing of an application for apprehended bias in relation to a decision-maker should be heard at the earliest opportunity, and importantly, before any hearing of the substantive matter is to take place. The Commissioner's conclusion that the dispute had been resolved and her decision to decline the issuance of certificate pursuant to s.368 are substantive matters.
[27] However, as outlined above, the Commissioner determined the Appellant's application for apprehended bias and the substantive merits of the case before her concurrently. In our view and in accordance with Parramatta Design, the Commissioner should have heard the bias application separately and prior to the substantive matter. In failing to do so, the Commissioner erred.
[28] Additionally, the Commissioner's decision not to recuse herself from determining the matter was discretionary in nature. As such, this finding can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view on the matters that fell for determination before the Commissioner in the absence of error of an appellable nature in the Commissioner's original Decision. As the High Court said in House v The King:[13]
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'
[29] The Commissioner correctly stated the test for apprehended bias at [59] of her Decision, which was outlined in Ebner v Official Trustee in Bankruptcy:[14]
'... 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.'[15]
[30] However, we outline the Commissioner's findings at [62], [72], [73] and [77] of her Decision as follows:
'[62] In determining the application for apprehended bias, in order for me to recuse myself, Mr Hunter would need to demonstrate that a fair minded and informed observer might conclude that there was a real possibility that I, as the decision maker, was not impartial.
[72] In determining whether I should recuse myself from making a decision to issue a certificate or not, I would need to be satisfied that a fair minded and informed observer might concede that there was a real possibility that I was not impartial.
[73] I do not consider that a fair minded and informed observer might conclude that there was a real possibility that I was not impartial. In reaching what I considered to be in-principle agreement during the telephone conference, the parties were provided with every opportunity to convince each other of their strengths of their respective cases.
[77] The relevant test, however, is whether I can make an impartial decision relevant to what is to be decided in the case at hand, which is the question of whether to issue to the certificate or not.'
[31] As is evident from the above extracts, the Commissioner consistently misstated the correct test for apprehended bias. We note that the purpose of the test is to have regard to whether a fair-minded lay observer might reasonably apprehend that a judge (or FWC member in this instance) might not bring an impartial mind to resolving the dispute before them. Therefore, despite initially stipulating the correct test at [59], in our view, the consistency of acting upon a wrong principle is a sufficient basis for us to form the view that the Commissioner erred in accordance with House v The King.
[32] Section 368 of the Act deals with a dismissal dispute (other than by arbitration). Subsections 368(2) and (3) set out the only functions able to be exercised by the Commission under s.368, namely:
(a) Convene a private conference with the parties;
(b) Issue a certificate if the Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful; and
(c) Advise all parties if the Commission considers that arbitration in relation to the dispute would not have a reasonable prospect of success.
[33] Section 369 of the Act deals with a dismissal dispute by consent arbitration, which is not relevant in the present circumstances.
[34] In holding a conference and subsequently issuing a decision in relation to the substantive matter, we are of the view that the Commissioner erred on jurisdictional grounds.
[35] In Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital[16] ('Hewitt'), the Full Bench made the following findings:
'[35] A third contextual consideration is also relevant. Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact. The decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel (Hetherington-Gregory), is relevant in this regard. In that matter the Commission considered whether an order for the production of documents in connection with a conference under s.776 of the Act should be made. Section 776 is part of the legislative scheme concerning unlawful termination of employment, in Part 6-4 Division 2 of the Act. That scheme, in ss.773-778, contains a procedure for the Commission to conduct a dispute resolution process in respect of any alleged unlawful termination of employment which is in all relevant respects identical to that for general protections matters in ss. 365-370. In refusing to make an order for the production of documents the Full Bench said:
"[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.
[9] The statutory requirements upon a Member in relation to a s.776 conference are:
[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties."
[36] The above characterisation of the Commission's functions would apply with equal force to a s.368 conference and is inconsistent with the proposition that the Act imposes jurisdictional preconditions on the making of a s.365 application of such a nature as might require the Commission to engage in a process of determination involving the making of findings of fact based on the receipt of contested evidence.
[37] Given the similarity between the scheme in ss.773-778 and those in ss.365-370, the analysis in Hetherington-Gregory strongly suggests that s.365(1) is not to be interpreted as imposing jurisdictional prerequisites such that the Commission might be required to hold a separate hearing, receive contested evidence and make a determination going to the merits of the application and potentially affecting the applicant's right to have his or her rights under Part 3-1 determined by a relevant court.'
[36] Therefore, in accordance with Hewitt, as the Commissioner conducted a conference pursuant to s.368 of the Act, she was not empowered to determine the application or otherwise impose an outcome on the parties. Consequently, by exercising her discretion not to issue a certificate, the Commissioner erred as she did not have the requisite jurisdiction to make findings in relation to the substantive matter.
[37] For the above reasons, the appeal must be upheld and the Decision of Commissioner Hunt must be quashed.
[38] Permission to appeal is granted.
[39] The appeal is upheld.
[40] The Decision of Commissioner Hunt is quashed.
[41] The matter is referred to Deputy President Kovacic to determine the matter in accordance with this Decision.
[4] Fair Work Act 2009 (Cth) s 604(2).
[5] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].
[6] [2010] FWAFB 5343, [27].
[7] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].
[8] Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538.
[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26] - [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
[10] [2017] FWC 4300, [47].
Printed by authority of the Commonwealth Government Printer
Geoffery Hunter
Anthony Costello Automotive [2017] FWCFB 5839
(2006) 229 CLR 577
(1989) 168 CLR 210
(2001) 116 FCR 481
(2011) 192 FCR 78