Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia

Introduction 1 Glen Cameron Nominees Pty Ltd ('Glen Cameron') is a transport and logistics company. It is party to an enterprise agreement known as the Glen Cameron Nominees Pty Ltd NSW EBA 2015-2019 ('Agreement'). That Agreement covers employees of Glen Cameron who are represented by the Transport Workers' Union of Australia ('TWU'). A dispute has arisen between Glen Cameron and the TWU as to whether employees working the afternoon and/or evening shifts are entitled to a paid meal break. 2 Under cl 21 of the Agreement, which deals with dispute resolution, a party may seek the assistance of the Fair Work Commission ('Commission') in resolving the dispute by conciliation or arbitration (if earlier attempts to resolve the dispute have failed). The terms of this provision are of some importance and it is useful to set the relevant parts of it out: 'The parties shall attempt to resolve the matter by conciliation at the first instance. Where conciliation as [sic] failed to resolve the dispute either party may choose to seek the assistance of the FWC in resolving the dispute by further conciliation of [sic] arbitration of the dispute. The parties agree that the decision of the FWC is binding subject to a right of appeal to a Full Bench of the FWC. The decision of the Full Bench shall be final. At any stage of the procedure set out in this clause, either party reserves its right to seek declaratory relief in a Court of competent jurisdiction.' 3 On 5 September 2016, the TWU filed an application with the Commission to deal with the dispute. That application was heard by a Deputy President on 16 December 2016. The terms of the Agreement relating to the issue of whether shift workers should have paid meal breaks were not especially clear or consistent and their interpretation was not free from difficulty. On 28 February 2017, the Deputy President published his reasons for concluding that the shift workers were entitled to a paid meal break: Transport Workers' Union of Australia v Glen Cameron Nominees Pty Ltd [2017] FWC 911. 4 Decisions of this Court such as Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 ('AMWU') at 322-328 [36]-[58] and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 ('Endeavour Energy') establish that, subject to the terms of the particular industrial instrument in question, the Commission may conduct a private arbitration where an industrial agreement confers such an authority upon it. The Fair Work Act 2009 (Cth) ('the Act') says as much in ss 738 and 739. Section 738 relevantly has the effect that s 739 applies to a term of an enterprise bargaining agreement 'that provides a procedure for dealing with disputes'. Clause 21 is such a term. Subsections 739(3)-(5) then provide: '739 Disputes dealt with by the FWC … (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. …' 5 The Deputy President's decision was an exercise of this arbitral power. It will be seen that cl 21 also authorised an appeal to the Full Bench although it did not expressly state the nature of that appeal. However, given the function conferred on the Commission, I interpret cl 21 to mean that the appeal was also by way of arbitration. 6 On 17 March 2017, Glen Cameron filed what purported to be a notice of appeal under s 604 of the Act. Section 604 provides: '604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or (b) made under the Registered Organisations Act by: (i) the General Manager (including a delegate of the General Manager); or (ii) the Registered Organisations Commissioner (including a delegate of the Commissioner); may appeal the decision, with the permission of the FWC. (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (3) A person may appeal the decision by applying to the FWC.' 7 Although s 604(1) says that permission to appeal is necessary before an appeal may be brought, the combined effect of s 739(5) together with cl 21 of the Agreement is that permission to appeal was not necessary. Glen Cameron's appeal was heard by a Full Bench of the Commission on 19 May 2017. At that hearing both parties informed the Full Bench that permission to appeal was not necessary and this also appeared in their written submissions. However, when it decided the case it appears that the Full Bench overlooked this important matter. It issued its decision on 8 June 2017 and at [43] held that 'permission to appeal is refused': Glen Cameron Nominees Pty Ltd t/a Glen Cameron Trucking v Transport Workers' Union of Australia [2017] FWCFB 2907. It did this on the basis that it could detect no error in the approach taken by the Deputy President. A corollary of that is that the Full Bench expressed no disagreement with the Deputy President's interpretation of the Agreement as requiring shift workers to be given a paid meal break. 8 This proceeding was then commenced in the Court by Glen Cameron seeking to set aside the Full Bench's decision on the basis of a jurisdictional error said to consist of its purporting to decide a leave application which it had no authority to decide. Whilst that proceeding was pending, the Full Bench held a directions hearing at which it indicated that it was minded, in light of the erroneous imposition of a leave requirement, to revoke its earlier decision but would receive submissions on this topic if this were desired. The transcript suggests that the directions hearing may perhaps have been a little tense and, indeed, that forms part of an argument I consider below that the Full Bench is now disqualified from dealing further with the appeal. In any event, written submissions were scheduled on the issue of whether the Full Bench could, or should, revoke its first decision. 9 Before those submissions were prepared, however, Glen Cameron brought an application for an urgent interlocutory injunction in this proceeding to restrain the Full Bench from revoking the first decision. That application was refused: Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia [2017] FCA 1026. The submissions which the Full Bench had scheduled on the revocation issue were then prepared by the parties and filed with the Commission. No oral hearing was required or scheduled. 10 On 14 September 2017, the Full Bench concluded that it would revoke its earlier decision: Glen Cameron Nominees Pty Ltd t/a Glen Cameron Trucking v Transport Workers' Union of Australia [2017] FWCFB 4636. At [50] of that decision it made this order: '[50] The Decision ([2017] FWCFB 2907) is hereby revoked pursuant to section 603 of the Act.' 11 Section 603(1) of the Act relevantly provides: '603 Varying and revoking the FWC's decisions (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)). …' 12 Glen Cameron then amended its originating process in this Court to challenge the revocation decision on the basis, inter alia, of an absence of power. In this Court, Glen Cameron now seeks to have both of the Full Bench's decisions quashed by certiorari and an order made remitting the matter to a differently constituted Full Bench. Alternatively, Glen Cameron seeks declarations to the same effect in an attempt to avoid a series of recent cases where the Court has determined that constitutional writs cannot be issued against the Full Bench when acting as a private arbitrator: see AMWU (at 338 [85]); see also Endeavour Energy (at 183 [12]-[13] and 189 [35]. The TWU did not contest that this Court has the power to declare that a decision of the Full Bench is of no legal effect. Instead it argued that it should not do so because it would be inutile to declare the first decision invalid in light of the subsequent revocation decision. In relation to the revocation decision itself, it submitted this was a valid exercise of the power contained in s 603(1) of the Act. 13 Glen Cameron's submissions in this Court raised for consideration three sets of issues: (a) Was the first decision of the Full Bench invalid? (b) Was its second revocation decision invalid? (c) If the matter was to be heard again by the Full Bench should this Court order the Commission to reconstitute the Full Bench?

Reconstitution of Full Bench 'on remitter' 20 That brings one to the real debate between the parties which is whether this Court should order the Full Bench to be reconstituted on the appeal from the Deputy President. This was put on two separate bases. First, it was said that there was an apprehension of bias on the Full Bench's part. Secondly, it was submitted that there was authority for the proposition that a court should generally order an administrative tribunal to which a matter was to be remitted to be differently constituted. In considering these two submissions, I will assume in favour of Glen Cameron that when the Court has merely declared the status of the first decision as invalid (rather than quashing it by certiorari) that it is open to the Court to say something about the constitution of the Full Bench. 21 Glen Cameron's apprehension of bias case worked as follows: first, it was said that the Full Bench had made significant errors in the way in which it had dealt with both the first decision and the second decision. I accept that the first decision did involve a reasonably serious, if procedural, error. But I would not accept that this was so in relation to the second decision. For reasons which I have given above, I have not found it necessary to resolve the debate about the validity of the second decision to revoke the first. But regardless of the outcome of the various subtleties arising from cases such as Bhardwaj, I do not think the Full Bench can be fairly criticised for simply seeking to undo a decision which was obviously legally flawed. 22 By themselves, I do not think that either of the Full Bench's decisions provides any basis for thinking that a fair-minded lay observer might reasonably apprehend that it might not bring an impartial and unprejudiced mind to the resolution of the question it will be required to decide: Michael Wilson and Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at 437 [31]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner') at 344 [6]. 23 Secondly, it was submitted that both decisions were liable to be set aside in toto. That is certainly true in relation to the first decision and I am prepared to assume it to be true for the second decision as well, at least for the purposes of the present argument. However, I do not think that this proposition is capable of advancing an argument about apprehended bias. In the language of Ebner, I can see no connection between those matters and the proposition that the Full Bench might not bring an impartial mind to bear upon the disposition of the appeal. 24 Thirdly, attention was drawn to a passage in the Full Bench's revocation decision at [1]: '[1] On 8 June 2017, we issued a Decision in relation to appeal against Deputy President Bull. At the outset of the hearing on 19 May 2017, the parties made it known to us that permission to appeal was not required. However, due to an oversight on the Full Bench's behalf, the issue of permission to appeal was dealt with in the Decision and, ultimately, permission to appeal was refused.' (footnotes omitted) (emphasis added) 25 It was submitted by Glen Cameron that the use of the word 'oversight' carried with it the connotation that the first decision was thought by its authors to be correct and that the procedural problem which had arisen was unlikely to affect the substantive result; that is to say, it suggested that the fresh hearing would be a foregone conclusion. I do not agree. The use of the word 'oversight' was an accurate description of what the Full Bench had done. It does not carry the connotation that any subsequent hearing would be a foregone conclusion. It is true that the process of reasoning which led the Full Bench to refuse permission to appeal would appear likely to lead it to reject any future appeal. It is also true that this may well engender a degree of pessimism on Glen Cameron's part about how the Full Bench might ultimately dispose of its appeal. But an apprehension that a party might lose a case does not logically imply an apprehension of bias on a tribunal's part. As Mason J said in Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352: 'It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.' 26 Thus, even if one accepted that the word 'oversight' was capable of suggesting that Glen Cameron would be likely to lose at any second hearing, I do not accept that this would generate a reasonable apprehension of bias. 27 Fourthly, it was submitted that a member of the Full Bench had used intemperate language during the directions hearing on 21 August 2017 at which timetabling orders were made in respect of the revocation issue. The particular passage upon which reliance is placed occurred during discussion about the appropriate timetable: 'The Vice President: All right. Do you want the matter determined on the papers or do you want an oral hearing, Mr Baroni? Mr Baroni: I'm content with it to be on the papers, your Honour. The Vice President: How long would you take with those written submissions, Mr Baroni? Mr Baroni: If I could have two weeks. The Vice President: No, Mr Baroni. You're not getting two weeks. Mr Baroni: Then I'm in your hands, your Honour. The Vice President: This is not a game about trying to outplay. It's a simple point. Mr Gibian, how long do you think you would be to reply to sort of submissions? Mr Gibian: I don't think I would be more than a day or so. The Vice President: Yes, okay. Mr Baroni, we will give you three days to put in submissions on the issue of revocation. Mr Baroni: If it please.' (emphasis added) 28 It is said that the sentence 'This is not a game about trying to outplay' was intemperate and, implicitly, revealed an animus against Glen Cameron. I would certainly accept that the exchange was, to a degree, terse. But in the context of what was a discussion about the timing of written submissions, I do not think it bespeaks an apprehension of bias. It was well within the range of acceptable behaviour at a directions hearing. 29 The other passage relied upon appeared in the second decision itself. At [43], when dealing with an argument about apprehended bias, the Full Bench said this: '[43] We note that the assertion there is a reasonable apprehension of bias in relation to the presently constituted Full Bench is a very serious allegation. The relevant test is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the relevant adjudication and determination. In this regard, an allegation of apprehended bias must be "firmly established". (footnotes omitted) 30 It was submitted that the reference to 'a very serious allegation' gave rise to a reasonable apprehension of bias. However, there is authority for the proposition that an allegation of bias against a judge does indeed involve the making of an allegation of serious misconduct: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36(b)]. It is the professional obligation of judges not only to be neutral and unbiased but also to comport themselves in such a way so as not to give rise to a reasonable apprehension of bias. An allegation that such an apprehension arises is an allegation that a judge has failed in the performance of their professional duty. That is why it is a serious allegation. These same principles apply, mutatis mutandis, to members of the Commission whose statutory duty is to resolve industrial disputes between parties impartially and conformably with the Act. I do not think, therefore, that what the Full Bench said was at all legally inaccurate. That being so, I find it difficult to conclude that by correctly stating that proposition that this could, in itself, have created a reasonable apprehension of bias. It was a serious allegation to make; the Full Bench was entitled to recognise that fact. 31 Fifthly, it was submitted that after the Full Bench's second decision, the Full Bench had arranged for further preparatory steps to be taken for the appeal and the fixing of a date for its hearing. Both parties had prepared for the appeal and were ready to appear when, at the last moment and without notice, the Full Bench declined to hear the appeal because of the pendency of this case. I was not directed to any evidence about this nor could I find any. Nevertheless, the basic position did not seem to be contested. 32 No doubt, it is unfortunate that the parties were not notified earlier of the Full Bench's decision not to proceed (assuming that is what happened). However, I do not think it can rationally be said that it gave rise to a reasonable apprehension of bias. This is particularly so where it was an inconvenience foisted on both parties. 33 I do not think, in those circumstances, that any of the five matters said to give rise to the reasonable apprehension of bias do so. It is convenient then to consider the combined effect of the five matters and to gauge whether they are more than the sum of their parts. I do not think they are. Accordingly, I reject the submission that I should require the reconstitution of the Full Bench because of a reasonable apprehended bias. No such apprehension arises. 34 Glen Cameron next pursued a variant of its bias argument. It was now said that the very same five matters also gave rise to a perception that it might not get a fair hearing in the sense at least that having the same bench hear the same case a second time might make some people think the result a foregone conclusion. The interests of justice therefore required a 'fresh start'. 35 There is some support for this approach. For example, in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 ('Northern NSW FM') at 42 Davies and Foster JJ said: 'If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appels Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, "…subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted".' 36 However, that statement, although not overruled, was in practical terms heavily qualified by the Full Court's decision in Comcare v Broadhurst [2011] FCAFC 39. There Tracey and Flick JJ cited Northern NSW FM as authority for the much weaker proposition that '[t]here may be circumstances in which it is appropriate for the Tribunal to be differently constituted if justice is to be seen to be done': 515 [90]. Their Honours then proceeded to set out circumstances where it would be appropriate to order the tribunal to be reconstituted which included: '● where there was an apprehension of bias; and ● where findings of fact have been made which need to be revisited.' 37 In a different context involving a court, Mason P thought the power to order reconstitution of the trial court was a power sparingly to be used: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [12]. His Honour said: 'Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation.' 38 At [13], his Honour accepted that the appearance of the interests of justice may require reconstitution, echoing the Full Court's views in Northern NSW FM. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 Kirby J summarised the authorities in this area by describing the discretion to order reconstitution this way: '123 Seventhly, it was conceded by the Minister (correctly in my view) that it was competent for the Federal Court, in making an order under s 481(1)(b), upon returning a judicially reviewable decision to the Tribunal, to give directions to the effect that the application should be reheard before a differently constituted Tribunal. Such a direction is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where a decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice) (128). In the exercise of its appellate and review jurisdiction under the Constitution, this Court does not hesitate to so provide (129).' (emphasis added) 39 To my mind, that is probably the most useful synthesis of the principles. What must be shown is that reconstitution is necessary because a further hearing without it would either be unlawful or otherwise undesirable. 40 For reasons I have already given there is no question of apprehended bias and hence no question of unlawfulness. The real question then is one of desirability. 41 Here the argument must be that it will be something of a charade to put the parties through a second hearing when it is already known with a reasonable degree of certainty what the Full Bench's decision is likely to be. That state of affairs, however, is a function of the fact that the error which was made was an error about the Full Bench's procedures and not about the substance of what it was examining, i.e., the meaning of the Agreement. 42 Once it is grasped that all that is happening in this case is the correction of an, admittedly significant, procedural error unrelated to that substantive construction question, then it becomes difficult to identify reasons for requiring a fresh bench to consider the same question. 43 Accordingly, I do not consider it desirable to order the Full Bench to be reconstituted. That being so, I do not need to consider Mr Gibian's further arguments that, even if I were minded to order the Full Bench to be reconstituted, this Court lacks the power to do so or that Glen Cameron's suit in this Court is not properly constituted to permit the grant of such relief even if the power is available Although it is not necessary to decide the former question, for my part I would doubt that the Court lacks the power to make such a direction. I express no view on the latter question.

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