The attached document replaces the document previously issued with the above code on 16 December 2024.

The fifth line of paragraph [4] has been changed to read 'Mr Lyndon Albiston' instead of 'My Lyndon Albiston'.

[2024] FWC 3496 [Note: An appeal pursuant to s.604 (C2024/9387) was lodged against this decision.]

Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Application for member to no longer deal with matter for reason of apprehended bias - Application refused.

On 11 April 2024 the United Firefighters' Union of Australia (UFU) lodged an application in the Fair Work Commission alleging a dispute arising under the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020[1]. The Respondent to the application is Fire Rescue Victoria (FRV). The dispute as now before the Commission relates to the safety of FRV's heavy vehicles fleet. On 18 November 2024, after six conciliation conferences held on 1 May, 22 May, 29 July and 1, 12 and 15 November, the matter has been programmed for arbitration before me on Monday 10 and Tuesday 11, February 2025.

• [1] This decision deals with a application made by FRV that I recuse myself from dealing further with the UFU's 11 April application on the ground of apprehended bias. A hearing of FRV's recusal application was held on 3 December 2024.

• [2] FRV argue that during the 1 November 2024 conciliation conference I said, in the context of the proposal for KPMG to be the sole auditor of FRV's heavy vehicle fleet;

"(a) words to the effect that "you're not going to win this" or "this is not a winning argument" and

(b) words to the effect that "to put all eggs in the KPMG basket is not appropriate" or "don't put all your eggs in the KPMG basket"".[2]

• [3] There is though no agreement between the parties or the witnesses about what was said, or even if anything was said in relation to FRV's prospects of success or the appropriateness of engaging only KPMG for the conduct of an audit.

• [4] Evidence was drawn from the unsigned witness statements of four witnesses, (none of whom gave oral evidence);

• Mr Felman KC, who had, until the recusal application been appearing for FRV;
• Mr Lyndon Albiston, a Special Counsel employed by Lander & Rogers, acting for FRV;
• Mr Alexander Lanham, a lawyer also employed by Lander & Rogers;

• Mr Darcy Calaby, an Industrial/Legal Officer employed by the UFU.

• [5] The following pertains to discussions in the joint session of the conciliation conference, held on 1 November 2024 at the Fair Work Commission.

• [6] Mr Felman, who did not take his own notes of the conference, and was not cross-examined on his evidence, says I said to him ""you are not going to win this", or very similar words to that effect".[3]

• [7] Mr Albiston who took notes of the conference recollects me as having said "You're not going to win this" or "this is not a winning argument", but with him not specifically recalling which phrase was used,[4] with his notes attributing the following to me;

KPMG retained as internal auditor -never mentioned before - that is beyond me

Better way forward is to engage with the proposal put forward by the union

• [8] Mr Lanham, who also took notes of the conference put forward several formulations of statements attributed to me. His original notes, taken on 1 November 2024, include;

• [9] In his witness statement, Mr Lanham states that he does not recall me using the word 'lose' and does not recall the precise form of words that were spoken. Instead, he says he used the term, "as a quick shorthand while discussions continued, to mark my impression, from what was conveyed, that the KPMG audit was not considered an adequate or winning response".[7]

• [10] Mr Lanham's notes relevantly continue;

What is the best way to assess that and go forward.

Conferences have been put forward on basis that immediate and pressing safety issue

For FRV to come forward and say solution is not what was discussed at the last conference, but some other solution around for many years, is beyond me.

To put all eggs in the KPMG basket is not appropriate."[8]

• [11] These notes were taken on Friday, 1 November 2024. Mr Lanham then revised his notes twice on the following Monday, 4 November 2024 and forwarded them to his superiors. The first revision did not change the above extracts, however the second revision inserted parenthetical text for reasons that are unclear, including in two relevant lines;

"Why would it be perfect solution, [I don't see it as a winning argument].

Lose [This word was a placeholder comment made during the course of the conference in respect of the comment above]"[9]

• [12] Mr Calaby's evidence is that he has no recollection of me saying anything to the effect of "you're not going to win this" or "this is not a winning argument", or anything about winning or losing, and is confident that he would have recalled and recorded anything said by the Commission "about FRV losing, or made a statement to the effect that FRV would not win the arbitration or that the UFU would win".[10] His notes taken during the course of the conference include two relevant matters;

• • That Mr Borenstein, senior counsel for the UFU, in addressing his concerns first said "Disingenuous how FRV have gone ahead - Q of conduct of audit needs to be resolved."[11] and;

• He then records the following statements, using CW with reference to me and MF to Mr Felman;

"CW: FRV talking with KPMG pre dispute. Role was fleshed out. When did FRV start talking with FRV?

MF: KPMG are auditors in broad sense, always talking to KPMG about audit obligations. 2018 in general. Will identify get instructions when re Fleet when discussions

CW: First he hears about KPMG as a potential auditor is this morning. Not good enough that it came up 6 months after dispute. Potent takes dispute in a diff way. Matter to be taken into account if it's the best way forward. Never been mentioned before. Why is it a perfect solution at this stage? His answer is I doubt it

MF: At end of day, objective decision to be made. What is best way to assess that?

CW: Safety issues re fleet. For FRV to put forward that the solution is not what was at last conference, is beyond me, can't see how it makes sense. Needs FRV to get instructions. To put all eggs in KPMG basket is what HB said (disingenuous)"[12]

• [13] The following pertains to discussions in private session with FRV on 1 November.

• [14] Mr Felman's evidence is that, during a private session with FRV I "made a comment to the effect that FRV should not put all its eggs in the "KPMG basket"".[13] Mr Albiston however recollects this as a somewhat more nuanced statement, that "Eggs don't all have to go into KPMG basket".[14] Mr Lanham gives no evidence about the matters discussed in the private conference, despite his witness statement showing almost 10 pages of redacted entries after the heading "Private session with CW".[15]

• [15] Procedurally, it is incumbent on a Member of the Commission, on receiving an application such as the one made by the Appellant, to hear the application and consider whether there are grounds to recuse himself or herself from dealing with the matter.[16] The principles associated with determination of applications for a member to no longer deal with a matter for reason of apprehended bias are well-established and are summarised succinctly by the Full Bench in Woodside Energy Ltd v The Australian Workers' Union,

"[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[17] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[18] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[19] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[20]

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be "firmly established",[21] and a finding of apprehended bias is not to be reached lightly.[22] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[23] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the "logical connection" required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[24] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[25] apply:

"The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ... at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ... at 352 per Mason J."[26] (references in original)

• [16] The hypothetical fair-minded lay observer is not conceived of as a lawyer, but a member of the public served by the courts or, in this case, the Commission.[27] As much as there is a need to decide matters impartially there is a need to guard against acceding too readily to suggestions of appearance of bias so as to encourage forum shopping.[28]

• [17] FRV argued, with respect to the comments it believes were made, that the reasoning in CUR24 v Director of Public Prosecutions[29] (CUR24), a judgement of the NSW Court of Appeal, had application to this matter. In that matter it was claimed a judge had made prejudicial comments at a social function. In considering whether findings should be made as to the disputed conduct, the Court of Appeal held such was not necessary;

"Where there is a dispute as to the terms of an out of-court statement made by the judicial officer and plausible evidence as to the making of that statement, in my view the relevant principles do not require that the court first resolve that dispute by making findings of fact before applying the fair-minded bystander test. In a case such as the present, the objective assessment called for by that test should take account of the circumstance that there is a dispute concerning the conduct or statements relied upon. For that reason, evidence directed to enabling the court by a process of fact-finding to resolve that dispute was not relevant in this case."[30]

• [18] The Court of Appeal then found that, in the circumstance of a recusal application flowing from "out of-court" conduct, consideration of the conduct should proceed from the assumption that what was said to have occurred had occurred;

"If, as in this case, there is sworn direct evidence of an out-of-court statement or other conduct of the judicial officer, which is disputed by the officer, the fair-minded observer would approach the matter by considering whether, if what was deposed to had in fact occurred, the decisionmaker might not be open to persuasion. If that is the position and in the circumstances there remains a real possibility that the statement was made or other conduct occurred, the result would be that the fair-minded observer might reasonably apprehend that the decision-maker might not be open to persuasion."[31]

• [19] FRV argues that conduct in a conciliation conference facilitated by the Fair Work Commission is to be seen as "out of-court" conduct and that the basis from which the Commission should proceed with this recusal application is the same as that referred to in CUR24. That approach is not of assistance in these proceedings. What is in dispute here is not a conversation at social function[32], but a proceeding of the Commission under the FW Act, conducted for the purposes of conciliating an alleged dispute, invoking a power of private arbitration granted by an enterprise agreement. Further, there is a wide dispute between the witnesses as to what was said, or even if whether anything was said.

• [20] In Travis Cairns v Oceaneering Australia Pty Ltd[33], Commissioner Johns summarised the particular and special statutory role of the Commission in resolving disputes, a summary with which I concur and consider has application here;

"[21] Having regard to the principles enunciated by the High Court, a fair-minded lay observer would be taken to be aware of the following basic features of the Commission's powers and procedures under the FW Act and general practices:

a) the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s.577(b)),

b) the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s.599),

c) it is common practice for a member of the Commission to express tentative views about questions of fact before them, including by explaining to parties (so that they know what matters they need to focus on) when the member does not understand something, or will need persuasion.

d) the quick resolution of a matter will necessitate the Commission member identifying the real issues and real problems in a particular case.

e) the exchange that happens between the bench and the bar, on the run, in an interlocutory hearing tends to lack the precision that might be expected in written and more well considered correspondence."[34]

• [21] As set out above, there are two sets of comments about which FRV complains. Neither is the subject of clear evidence.

• [22] The first comment, stated by FRV as being words to the effect that "you're not going to win this" or "this is not a winning argument" relates to the joint conciliation conference. Only the FRV witnesses heard the comment. Mr Felman says he heard ""you are not going to win this", or very similar words to that effect".[35] Mr Albiston noted the former phrase[36] but "cannot specifically recall which phrase was used".[37] Mr Lanham remembers something, but not the actual words; instead noting the word "lose", while conceding that word was never used.[38]

• [23] For the UFU's part, Mr Calaby did not hear any of these formulations "or anything about winning or losing".[39]

• [24] The second comment is put forward by FRV as being either words to the effect that "to put all eggs in the KPMG basket is not appropriate" or "don't put all your eggs in the KPMG basket"". FRV is unclear as to when the words were spoken. Mr Felman says it was during a private session,[40] as does Mr Albiston.[41] Mr Lanham's notes refer to the statement having been made in the joint session.[42] The UFU's Mr Calaby notes the comment was made in the joint session, but in the context of the relay of something originally said by Mr Borenstein, "To put all eggs in KPMG basket is what HB said (disingenuous)".[43]

• [25] The lack of precision about what was said, if anything, would likely be shared by the hypothetical observer. Not being clear about what was said, it is highly unlikely the fair minded lay observer would take the darkest construction of the attributed words. The observer would heed the caution expressed by the High Court in Johnson v Johnson that a preliminary impression created by what is said or done may be altered by a later statement, with the hypothetical observer being no more entitled to make snap judgements than the person under observation.[44]

• [26] The observer would also likely take into account the context of the events associated with the overall proceedings and their conduct. In this case, the application had been commenced on 11 April 2024 and had been the subject of numerous conciliations. The parties had routinely each been represented by senior counsel and instructing solicitors. The application before the Commission was one of many involving the parties in 2024 and one of several that had come before me. Some of these proceedings resulted in an impasse in conciliation and required arbitration. The representatives in this matter were, at the time of the 1 November conciliation, pressing for the matter to be arbitrated. Despite the very lengthy notes provided by the parties' representatives, none record FRV's representatives, or any representative querying what is complained about or challenging its propriety.

• [27] The observer would also take into account that the Dispute Resolution provision of the Agreement does not provide for an unconditioned right of either party to object to a Commission member presiding over both conciliation and arbitration. The observer would also note that the Dispute Resolution provision provides that the Commission, upon reference to it of a dispute arising under the Agreement, "may utilise all its powers in conciliation and arbitration to settle the dispute"[45] which extend to making a recommendation or expressing an opinion.

• [28] In all, and in relation to the first statement complained about, the hypothetical observer would be left with a high degree of ambiguity about what was said. At most they would be left with a question along the lines of "what was that?"; something may have been said, about which they cannot be sure. When no one moved to query the subject, the observer would likely have formed the view that nothing of a heightened sensitivity had been said.

• [29] As to the second statement complained about the hypothetical observer may have more precision about a reference having been made to eggs in a basket. They would likely note that Mr Felman and Mr Albiston thought the comment was made in a private session but that, since Mr Calaby recalls a statement in the joint session, as does Mr Lanham, the better view would be that it was mentioned in the open session. With that being the case, again the observer would have some uncertainty as to the words themselves: either as Mr Lanham heard them "To put all eggs in the KPMG basket is not appropriate"[46] or as Mr Calaby records the exchange "To put all eggs in KPMG basket is what HB said (disingenuous)".[47]

• [30] Beyond the words themselves, the hypothetical observer would see the context of the exchange: extended conciliation as a means to resolve the dispute and avoid the need for a hearing. They would likely observe that conciliation is not only about the exchange of views but also that a fundamental part of conciliation is the reality checking of each parties' position. They would likely observe that, in a discussion about appointment of an auditor, the identity of which was contested between the parties, the attributed words (of either formulation) are views expressed for the purposes of reality checking and aiming to have one or both parties move their position, and not an indication of bias.

• [31] In this case, FRV has not sufficiently articulated the logical connection between its attributed statements and the feared deviation from the course of deciding the matter on its merits. In this respect, the second step in Ebner has not been established.

• [32] The context of the overall proceedings and the parties' relationship also speaks against the totality of all the relevant circumstances indicating apprehended bias. The length of the proceedings, the difficult relationship between the parties, the fact of representation by senior counsel and solicitors and the fact that movement by either party toward settlement was grudging and incremental would suggest that conciliation involved debate and testing of the instructions each put forward. The fact that, at the time of the conference, the likely positions of either party in the event of arbitration was abstruse would reinforce that reasonably no view of apprehended bias was present.

• [33] In the hearing, the UFU argued that delay on the part of FRV in bringing its recusal application forward was a matter that should be taken into account by me in forming my decision. It is unnecessary for me to consider the matter because of my primary reasoning about disposition of the application. Further, with respect to the UFU's submission that costs should be awarded to it for its defence of the application, I do not determine the subject at this time, however provide the UFU with leave to press the matter after determination of the remainder of the application.

• [34] For these reasons, I am not satisfied the ground of apprehended bias has been established and that I should recuse myself from further dealing with the matter. FRV's recusal application is dismissed.

Mr H. Borenstein KC and Mr J McKenna, counsel, for the Applicant

Mr M. Follett KC and Ms B Murphy, counsel, for the Respondent

[1] PR720617.

[2] Exhibit 4, FRV Outline of Submissions, [4]; Digital Hearing Book (DHB), p.4.

[3] Exhibit FRV - 1, Witness Statement of Marc Felman KC, [6]; DHB, p.25.

[4] Exhibit FRV - 2. Witness Statement of Lyndon Albiston, [28]; DHB, p.30.

[5] Exhibit FRV - 2, Attachment; DHB p.32.

[6] Exhibit FRV - 3 - Witness Statement of Alexander Lanham, Attachment ACL - 1; DHB, p.41.

[7] Exhibit FRV - 3, [9], Attachment ACL - 1; DHB, p.37-8.

[8] Exhibit FRV - 3, Attachment ACL - 1; DHB, p.41.

[9] Exhibit FRV - 3, [9], Attachment ACL - 3; DHB, pp.84 - 85.

[10] Exhibit UFU - 1, [10]; DHB, p.116.

[11] Exhibit UFU - 1, Attachment DC - 1; DHB, p.117.

[12] Exhibit UFU - 1, Attachment DC - 1; DHB, p.118

[13] Exhibit FRV - 1, Witness Statement of Marc Felman KC, [8]; DHB, p.25.

[14] Exhibit FRV - 2. Witness Statement of Lyndon Albiston, Attachment A; DHB, p.33.

[15] Exhibit FRV - 3 - Witness Statement of Alexander Lanham, Attachment ACL - 1; DHB, p.41-57.

[16] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2019] FWCFB 7311, [30].

[17] [2000] HCA 63, 205 CLR 337

[18] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[19] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[20] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J

[21] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J

[22] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ

[23] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

[24] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]

[25] [2010] FCAFC 111 at [25]

[26] [2022] FWCFB 192.

[27] Charisteas v Charisteas [2021] HCA 29, [21].

[28] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 66 ALR 239, p.248.

[29] [2012] NSWCA 65.

[30] CUR24 v Director of Public Prosecutions [2012] NSWCA 65, per Meagher JA, [41].

[33] [2024] FWC 1912.

[35] Exhibit FRV - 1, [6]; DHB, p.25.

[36] Exhibit FRV - 2; Attachment A; DHB, p.32.

[37] Exhibit FRV - 2, [29]; DHB, p.30.

[38] Exhibit FRV - 3, [9]; DHB, p.37.

[39] Exhibit UFU - 1, [9]; DHB, p.116.

[40] Exhibit FRV - 1, [8]; DHB, p.25.

[41] Exhibit FRV - 2, [33]; DHB p.30; Attachment A, DHB, p.33.

[43] Exhibit UFU 1, [7]; DHB, p.116, Attachment DC - 1, DHB, p.118.

[44] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, [14].

[45] Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020, Division A Clause 21.2.6, Division B, Clause 26.2.6.

[47] Exhibit UFU 1, [7]; DHB, p.116, Attachment DC - 1, DHB, p.118.

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