SNADEN J:
50 I have had the privilege of reading a draft of the reasons for judgment of Flick and Kerr JJ. I agree with the orders that their Honours propose and with the reasons for which they propose them. There is only one other issue that I should address and it concerns the respondent's request, made in the lead up to the hearing, that I should have disqualified myself from hearing the application. As is likely apparent, that was a request to which I did not accede. The following reasons explain why.
51 The parties are at odds as to the proper interpretation of cl. 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012. That agreement (hereafter, the "EA") is an enterprise agreement that was made under - and that has statutory force by reason of - the Fair Work Act 2009 (Cth) (hereafter, the "FW Act"). It applied at material times to construction work undertaken by the applicant, Thiess Pty Ltd (hereafter, "Thiess"), in connection with what has apparently come to be known as the Wheatstone Project, a large liquefied natural gas processing and storage facility located near Onslow, Western Australia (hereafter, the "Project"). The respondent, Mr Sheehan, is a former employee of Thiess's, to whose employment the EA applied at relevant times. He brought the proceeding below in a representative capacity on behalf of 151 Thiess employees.
52 As the reasons for judgment of Flick and Kerr JJ make clear, the parties are in dispute as to whether the time that employees spent at the end of their shifts travelling between their work locations and the Project site's boundaries was time for which the EA required that they be paid.
53 By a judgment pronounced on 1 November 2019, the primary judge resolved the dispute about the proper construction of cl 16(9) of the EA in (or largely in) the respondent's favour: Sheehan v Thiess Pty Ltd [2019] FCA 1762 (Colvin J). The applicant now seeks leave to appeal from the orders that were consequently made. That application was heard on Thursday, 30 July 2020, along with the substantive appeal itself.
54 The EA was a "greenfields agreement" that Thiess made with the Australian Workers' Union. In order that it could commence to apply to the employment of Thiess personnel engaged in construction work at the Project site, it was first necessary to gain approval to that end from Fair Work Australia (as the Fair Work Commission was then known): FW Act, div 4 of pt 2-4. In the case of greenfields agreements, one of the requirements that conditioned that approval was that Fair Work Australia be satisfied that it was in the public interest: FW Act, s 187(5).
55 Prior to my appointment to this court in April 2019, I practiced as a barrister, predominantly in the field of industrial relations law. In mid-2012, I was briefed to appear on behalf of Thiess in the approval application that led to the EA's coming into effect (hereafter, the "Approval Proceeding"). I was also briefed to appear in similar (and related) proceedings concerning another enterprise agreement to which another construction contractor, John Holland Pty Ltd, was party. Both applications were supported by the Australian Workers' Union. Both succeeded over the objections of three other construction unions, all of which contended that the approval of the agreements in question (including the EA) was contrary to the public interest. It was my prior involvement in the Approval Proceeding that led to the issue to which these reasons pertain.
56 The present application and appeal was initially allocated to a differently-constituted bench. On Wednesday, 15 July 2020, the constitution of the bench was altered, in part such that I was added to it. The parties were informed of that reality later that day. On Monday, 20 July 2020, my chambers alerted the parties to my having appeared for Thiess in the Approval Proceeding and invited them to indicate whether that gave rise to any reason why I should decline to hear the present application or any resultant appeal.
57 On Wednesday, 22 July 2020, the respondent, via his solicitor, replied to that invitation and identified a number of reasons why I should recuse myself from further involvement in the matter on the grounds of apprehended bias. Both parties indicated that they were content for me to decide in chambers the issue of my potential disqualification (which appears, in any event, to be the appropriate course). I did so; and subsequently indicated that I did not consider it appropriate to disqualify myself as requested. I undertook to address in my written reasons for judgment why it was that I was drawn to that conclusion and it is by the reasons that follow that I discharge that promise.
58 At the outset, I should record my gratitude to the respondent's solicitor for the considerable courtesy with which his submissions were advanced. In considering the issue of my recusal, I inclined (and still incline) to the view that I should avoid what might otherwise be the temptation to serve as a witness in my own cause. As is unlikely to surprise, I have as good as no independent recollection of any of the matters in which I was briefed in 2012, including the Approval Proceeding. That, however, is not determinative of anything: the respondent could not fairly be (and was not) expected simply to take that as read.
59 Instead, the issue of my recusal turned upon the application of the so-called "double might" test. At issue was whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question or questions that fell for determination in this matter: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of that test requires two things. First, there must be identified the matter or matters upon which arises or arise the relevant apprehension that a decision-maker might decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter or those matters (on the one hand) and the feared deviation from the course of deciding the matter on its merits (on the other).
60 The fact that a judge might once, as counsel, have been briefed by a party who appears before him or her is of no moment. No fair-minded person can have reasonable grounds for apprehending that, by that circumstance alone, a judge might be unable to bring a fair and unprejudiced mind to issues upon which he or she must rule: Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 87-88 (Brennan, Gaudron and McHugh JJ); R v Judge Russell; ex parte Reid (1984) 35 SASR 417, 422 (Walters J, with whom King CJ and Mohr J agreed). In Western Australia v Watson [1990] WAR 248, 264 (Malcolm CJ, Brinsden and Seaman JJ), the full court of the Supreme Court of Western Australia observed:
…the administration of justice is a practical business which relies to a very great extent upon the ability of judges to put aside whatever personal or professional associations they may have had and to do justice as they are sworn to do…
61 No doubt in light of that reality, the proverbially-reasonable lay observer is assumed to have at least "…some knowledge of the way in which solicitors and barristers and judges work": British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 ("BATA"), [85] (Brereton J). Plainly enough, it is - and the reasonable lay observer is presumed to understand that it is - the role of counsel to give "…strong expression to submissions which he felt entitled and professionally obliged to make…": Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & BHP Petroleum (NW Shelf) Pty Ltd [1997] 1 VR 332, 352-353 (Ormiston JA, with whom Brooking J (at 334) and Tadgell J (at 344) agreed). Counsel's advancement of a case on behalf of his or her client "…does not give rise to a reasonable apprehension that upon appointment to the bench that counsel will not be able impartially to determine the same issue": BATA, [79] (Brereton J). Similarly, the fact that a judge might once, as counsel, have advised a client on an issue that arises in a proceeding to which that client is party "…does not generally give rise to such an apprehension [of bias], because a judge can be expected to approach afresh with an open mind from the bench issues on which he or she has previously advised": BATA, [85] (Brereton J).
62 Those positions are altered in circumstances where the judge might be considered to have an interest in the outcome of a matter that he or she is to decide. If, for example, "…the appropriateness of [former] advice is in issue, or if it will be necessary to decide whether a course of conduct advised by the judge as counsel was legally effective or appropriate - a reasonable apprehension of bias will arise": BATA, [85] (Brereton J); see also Re Polites, 88 (Brennan, Gaudron and McHugh JJ). A relevant apprehension of bias might arise if the judge could reasonably be supposed to have gained, as counsel, special knowledge of relevant facts through prior involvement in a matter: S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255, [55]-[56] (Hasluck J).
63 A judge invited to disqualify him or herself from hearing a matter ought not lightly to do so. Just as it is important to avoid apprehensions of bias, "…it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour": Re JRL; ex parte CJL (1986) 161 CLR 342, 253 (Mason J, with whom Gibbs CJ and Brennan J agreed in the result). It would be "…an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court": Livesey v The New South Wales Bar Association (1983) 151 CLR 288, 294 (Mason, Murphy, Brennan, Deane and Dawson JJ).
64 Here, it is my former involvement in the Approval Proceeding that was said to give rise to the relevant apprehension that I might approach the issues in the present matter otherwise than on their legal or factual merits. In order to understand how that involvement was said to (or might) result in that outcome, it is necessary to explore the nature of that proceeding. Having only the barest recollection of it, I have been assisted to that end by reviewing the reasons that Fair Work Australia published in support of its decision to approve the EA: Re Thiess Pty Ltd [2012] FWAA 7466 (Commissioner Williams - hereafter, the "Approval Decision").
65 The Approval Proceeding was opposed on the assertion that the EA's approval was contrary to the public interest. One of the bases upon which that submission proceeded fixed upon the hours of work for which the EA provided: the three unions that opposed the EA's approval submitted that the hours of work for which it provided were excessive, such that it would be contrary to the public interest for it to be approved. No dispute arose as to what those working hours did or did not cover: at issue was merely whether their quantum was excessive to a point that excited the public interest. There was no dispute as to the proper construction of any of the terms of the EA, including cl 16(9). The EA's approval did not call for consideration of whether the time that employees would spend travelling within the large Project site to or from work locations should qualify as time for which they should be paid.
66 In his correspondence of Wednesday, 22 July 2020, the respondent made the following observations:
One of the challenges advanced by the unions in the Approval Proceedings was to the "working hours" required to be completed under the Agreement, and whether the quantum of such hours was fair: Approval Decision at [40], [97]. It would be surprising if the parties and their Counsel did not normally turn their minds to and form a view as to what the expression "working hours" meant in the Agreement.
67 Respectfully, no such surprise arises. As I have already recorded, the Approval Proceeding did not involve any dispute about what the working hours under the EA were. The issue that arises in the present matter - namely, whether the time spent travelling to and from actual work locations was time for which the EA required that employees be paid - did not arise in the Approval Proceeding. Not only did it not arise, it was not an issue that warranted any attention. It would be, to employ the respondent's phraseology, surprising if the parties' counsel had turned their minds to, and formed a view about, an expression whose meaning was not in contest and had no bearing upon any of the issues that were. Even had I done so, the authorities make it clear that that is not a sufficient basis upon which to found a relevant apprehension (above, [61]).
68 The respondent's correspondence of Wednesday, 22 July 2020 continued (references omitted, emphasis original):
The Commission noted that "Coupled with the 4 weeks on/1 week off roster workers also face standard project working hours of 65 hours per week under the Agreement": Approval Decision at [40] (emphasis added); and that "Employees under the Agreement work "Project Working Hours…" averaging 65 per week": Approval Decision at [96].
The Commission also considered the expression 'Project Working Hours" when deciding whether the Agreement met the public interest in s.187(5)(b) of the Act: Approval Decision at [97].
The present Application principally concerns the interpretation of clause 16(9) of the Agreement which includes the expression "Project Working Hours".
The parties join issue over whether the expression "Project Working Hours" bears the same meaning when qualified by (eg) possessive pronouns in the Agreement…
Issue is also joined in respect of the expression "standard Project Working Hours", being an issue which was the subject of the very challenge in the Approval Proceedings: Approval Decision at [40]…
The matters in dispute on the Application also embrace "the construction of all of those provisions of the enterprise agreement that deal with hours of work and remuneration"…
The background and context in which the Agreement was made is also put in issue in this Application. The parties each agree that enterprise agreements are not to be interpreted in a vacuum divorced from "industrial realities".
69 There is (and was) no reason to question any of those observations. None, however, gives rise to any reasonable apprehension of the sort to which the respondent adverted. The fact that the present application "…principally concerns the interpretation of clause 16(9) of the [EA,] which includes the expression 'Project Working Hours'" is (and was) neither here nor there. As has already been noted, no issue arose in the Approval Proceeding as to what that phrase covered, nor specifically whether it incorporated the time that employees might spend travelling within the confines of the Project site. That is the issue that arises presently. Even were it otherwise, neither the advice that I might have given to Thiess nor the submissions that I might have advanced on its behalf in the Approval Proceeding would suffice to ground in the present matter a reasonable apprehension of a kind that might warrant my disqualification (see above, [61]).
70 Next, the respondent's correspondence of 22 July 2020 noted:
In the context of relevant "industrial realities", the Respondent submits on this Application that the construction arrived at by the Court was consistent with evidence at first instance to the effect that it was a common feature in resource project agreements that time involved in getting from employees' actual place of work to a nominated exit point on a project is treated as paid time: Respondent's Submissions at [26]. It would not be unexpected that this was the subject of the negotiations that were referred to in the Commission decisions.
71 Whether the negotiations that took place as to the content of the EA addressed that issue is not something upon which I can comment. I was not (and am not understood to have been) involved in those negotiations, nor otherwise with the events that led to the making of the agreement. There is no suggestion that the content of those discussions informed - or, indeed, bore in any way upon - whether or not the approval of the EA was or was not in the public interest. There is no basis upon which reasonably to suspect that evidence of the content of those discussions might have featured in some way in the matter in which I was briefed. There is even less of a basis to suppose that I might have been provided with material disclosing that content given its wholesale irrelevance to the central question (namely, whether approval of the EA was or was not contrary to the public interest); much less to suppose that I might now, some eight years later, recall it if I had.
72 At [17] of his 22 July 2020 correspondence, the respondent noted (references omitted):
The Unions in the Approval Proceedings submitted that the "standard project working hours" compared unfavourably with other resource agreements. Accordingly, it is not inconceivable, and indeed likely on one view, that the content of other resource agreements were the subject of some consideration by Counsel for Thiess.
73 That final proposition must be accepted. Again, I have, in 2020, no independent recollection of having considered, in 2012, the content of other enterprise agreements applicable to the construction of large resources projects. Nonetheless, in its reasons for approving the EA, Fair Work Australia noted that the evidence before it was "…clear that the hours and roster in [the EA], 65 hours per week and 4 [weeks] on/1 [week] off, are common for engineering construction projects in Western Australia": Approval Decision, [99] (Commissioner Williams). Those reasons continued (at [100]-[101]):
In fact there have been twenty four greenfields agreements approved by Fair Work Australia in the last year relating to major engineering construction projects in Western Australia all with the same 4 on/1 off roster as in this Agreement. Indeed of the Objecting Unions over the last year, the CFMEU have entered into seven of those agreements, the CEPU five and the AMWU four of these agreements. Each of these agreements contain the same 4 on/1 off roster which these unions object to in this case and criticise the AWU for agreeing to.
For each of those agreements the respective union party had provided a declaration stating that the union believed that approval of that agreement was in the public interest. Specifically two of the witness[es who] gave evidence in support of the Objecting Unions' case, Mr McLaughlin from the CEPU and Mr Pallot from the CFMEU, have themselves in the recent past signed such statutory declarations for a number of these agreements which contain the 4 on/1 off roster saying approval of that agreement was in the public interest, and some of these agreements also expressly provide for standard project working hours of 65 per week.
74 Plainly, I must be understood to have had (or to have been likely to have had) at least some occasion to consider the content of other enterprise agreements against which the EA might have been compared. Specifically, consideration was likely to have been given to whether or not other such agreements made provision for the standard project working hours and rosters for which the EA provided. But how that should translate into even a potential apprehension of bias in the present case is not clear. There is no suggestion that there was occasion to consider other agreements inasmuch as they might have made provision for the issue that arises in the present case (namely, whether time spent travelling within the Project site was, in some circumstances, considered time for which employees should be paid). Given that that issue did not arise in the context of the Approval Proceeding, there does not appear to be any reasonable basis upon which to think that that was something to which any attention was given - much less a matter in respect of which any view might have been formed - such that a reasonable lay observer could have had cause to wonder whether I might approach any of the questions that arise in the present matter upon anything other than their legal and factual merits. Even if that were a matter in respect of which I might, in 2012, have had occasion to form and/or articulate a view, and even if I might be assumed to recall, some eight years later, what that view was, the authorities make clear that that is not a sufficient basis upon which a relevant apprehension might now arise (above, [61]).
75 The respondent's 22 July 2020 correspondence next noted as follows:
Counsel for Thiess submitted in the Approval Proceedings inter alia that "the approval of the Agreement will assist with completion of the project on time and within its financial targets": Approval Decision at [68(e)]. These are representative proceedings in which claims are made by the group members for 20 minutes journey time each day during the claim period. If ultimately successful, this will represent considerable amounts payable to the employees that Thiess did not otherwise factor into its consideration when it made that submission before the Commission. It is therefore conceivable that the claim itself will run counter to the position adopted by Thiess through its Counsel at first instance.
76 Respectfully, the respondent makes more of the submission that Thiess advanced than can fairly be made. Given that it was Thiess that applied for the EA's approval by Fair Work Australia, it can plainly be accepted that Thiess considered that its interests would be served by the EA's being approved, including inasmuch as concerned the Project's completion in a timely and cost-effective way. It does not follow from the formation and pursuit of that view that a reasonable lay observer might thereafter impute any potential for improper prejudgment in relation to disputes to which the EA might give rise. There is no basis upon which to suppose that the view expressed in 2012 (that the EA would assist in the timely and cost-effective completion of the Project) should or might mandate, or even incline one way or the other, in favour of a particular outcome presently. Even if there were, the authorities make clear that that would not suffice (above, [61]).
77 The 22 July 2020 correspondence then made the following observations:
It would be expected that some or all of the issues identified above were the subject of instructions to Counsel for Thiess and of advice to Thiess in the course of the Approval Proceedings. Indeed, it would be surprising if they were not.
No actual bias is suggested. The test for reasonable apprehension of bias outlined in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ):
"[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".
78 A similar point was made a few paragraphs later (references omitted):
Moreover, his Honour may have gained knowledge of matters relevant to the interpretation of the Agreement, including through privileged material in his brief relating to the Approval Proceedings that cannot be known to the Respondent in the Appeal. A lay observer might reasonably think that such material might subconsciously shape or influence his Honour's attitude to the interpretation of the Agreement, such that he might be influenced by matters extraneous to the proceedings the subject of the Appeal.
79 Respectfully, I do not (and did not) accept that suggestion. Had the Approval Proceeding involved a dispute about the construction of the EA, it would be easier to see how I might have had occasion to receive, consider or advance instructions of the kind to which those passages refer. Given, however, that no issue arose in the Approval Proceeding as to the construction of any term of the EA (much less any term whose construction falls for consideration presently), there is no basis upon which a reasonable lay observer might suppose that I had occasion to consider or form a view about any matters such that I might now be led or tempted to approach the questions that arise for present determination otherwise than on their merits. Of precisely what matters I might reasonably be thought to have gained special knowledge is, with respect, not sufficiently apparent.
80 This is not a matter in the outcome of which I might reasonably be thought to have an interest. It is not, for example, a matter in which the outcome might serve as commentary upon the appropriateness (or even the correctness) of advice that I once gave, or submissions that I once advanced. There is nothing about the submissions that Thiess advanced in the Approval Proceeding that is sought here to be impugned (cf BATA, where one of the parties sought to impugn as improper a scheme about which the judge had once given advice precisely to the contrary). At the core of the respondent's contention was the concern that I might, as counsel, have formed views about the EA that are inimical to his interests. As I should hope has been made clear, that cannot reasonably be thought to have occurred; but even if it had, it would still fall short of grounding a relevant apprehension sufficient to warrant my disqualification.
81 For those reasons, I declined to disqualify myself from hearing the application. From an admittedly brief perusal of the authorities, there appears to be some confusion as to how my decision not to disqualify myself from the hearing should manifest. There is authority that suggests that an application that a judge disqualify him or herself from sitting in a matter should be made informally (as occurred here - I think quite properly) and that its rejection in this case should not have required anything other than that I opt, as I did, to participate in the application and the appeal: Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264, 275 [36]-[37] (Branson, Kiefel and Finkelstein JJ). That said, the practice of this court does not appear to preclude the making of formal applications, nor the making of orders in respect of them: Brooks v The Upjohn Company (1998) 85 FCR 469, 474-476 (Beaumont, Carr and Branson JJ); Kirby v Centro Properties Limited (No 2) (2008) 172 FCR 376, 384 [22]-[23] (Finkelstein J). The weight of authority seems to acknowledge that a judge's decision to disqualify or not disqualify him or herself from hearing a matter may be reviewed on appeal before the determination of the substantive matter (see Brooks); even if, however confusingly, such a decision itself might not be appellable (see Parramatta Design).
82 As events transpired, both parties stated that they were content for me to decide the issue of my recusal in chambers and to indicate prior to the hearing the position at which I had arrived. Neither sought to take the issue further. That being so, I do not consider it necessary (if indeed it might be appropriate) to make any order formally dismissing the respondent's recusal invitation.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.