Woodside Energy Limited v Australian Workers' Union

Introduction 1 Woodside Energy Limited (Woodside) operates in the Australian oil and gas industry, undertaking exploration, development and production activities relating to liquid natural gas and other products, mainly in Western Australia. Its employees engaged on the "North West Shelf Project" are not covered by an enterprise agreement. A number of those employees are members of the Australian Workers' Union (AWU). Woodside is not interested in bargaining for such an agreement and has evidently refused to do so. 2 On 3 June 2022 the AWU applied to the Fair Work Commission for a majority support determination which, if made, would require Woodside to commence bargaining for a proposed enterprise agreement with some of its employees. The application was allocated to Deputy President Binet. It has not yet been heard, let alone determined. Woodside claims that aspects of the Deputy President's conduct of that proceeding thus far give rise to a reasonable apprehension of bias in that they suggest that the Deputy President has pre-judged certain issues in the proceeding. On 14 September 2022 the Deputy President refused Woodside's application to recuse herself and on 25 October 2022 a Full Bench of the Commission dismissed Woodside's appeal from that decision. A week later, Woodside filed an originating application in this Court purportedly under s 39B of the Judiciary Act 1903 (Cth) and ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), seeking writs of certiorari to quash those decisions and an earlier decision of the Deputy President; declaratory and injunctive relief, and has foreshadowed making an amendment to add a claim for writs of prohibition. 3 Section 39B of the Judiciary Act relevantly confers jurisdiction on this Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (s 39B(1)) and in any civil matter arising under any laws made by the Australian Parliament (s 39B(1A(c)). Section 21 of the FCA Act gives the Court power in civil proceedings in relation to matters in which it has original jurisdiction to make binding declarations of right, whether or not consequential relief is or could be claimed. Section 23 gives the Court power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 4 The AWU's application is listed for hearing on 28 and 29 November and 1 December 2022. At this stage, Woodside seeks an interlocutory injunction to restrain the Commission from hearing or otherwise dealing with that proceeding (B2022/530) other than by referring it to the President for allocation to a different member. It relies on two affidavits of Anthony Barry Longland and one of Georgia Kate Manuel, respectively a partner in the law firm acting for Woodside and its Human Resources Manager.

The legislative context 5 Before going any further it is appropriate to say something about the legislative context. 6 The making of a majority support determination is governed by Division 8 of Pt 2-4 of the Fair Work Act 2009 (Cth) (FW Act). Part 2-4 is concerned with enterprise agreements. Its objects are set out in s 171, which provides: The objects of this Part are: (a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and (b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through: (i) making bargaining orders; and (ii) dealing with disputes where the bargaining representatives request assistance; and (iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay. 7 Division 8 of Pt 2-4 is concerned with the role of the Commission in facilitating good faith bargaining. 8 Section 228 (in Subdivision A) imposes obligations on bargaining representatives to engage in good faith bargaining. It provides: Bargaining representatives must meet the good faith bargaining requirements (1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet: (a) attending, and participating in, meetings at reasonable times; (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner; (c) responding to proposals made by other bargaining representatives for the agreement in a timely manner; (d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals; (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; (f) recognising and bargaining with the other bargaining representatives for the agreement. (2) The good faith bargaining requirements do not require: (a) a bargaining representative to make concessions during bargaining for the agreement; or (b) a bargaining representative to reach agreement on the terms that are to be included in the agreement. 9 Majority support determinations are the subject of Subdivision C. 10 Section 236 provides: Majority support determinations (1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement. (2) The application must specify: (a) the employer, or employers, that will be covered by the agreement; and (b) the employees who will be covered by the agreement. (Emphasis in original.) 11 The Commission is obliged to make a majority support determination if the conditions in s 237 are established. Section 237 relevantly provides: When the FWC must make a majority support determination Majority support determination (1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement. Matters of which the FWC must be satisfied before making a majority support determination (2) The FWC must be satisfied that: (a) a majority of the employees: (i) who are employed by the employer or employers at a time determined by the FWC; and (ii) who will be covered by the agreement; want to bargain; and (b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and (c) that the group of employees who will be covered by the agreement was fairly chosen; and (d) it is reasonable in all the circumstances to make the determination. (3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate. (3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. … 12 As Perry J observed in ResMed Ltd v Australian Manufacturing Workers' Union (2015) 243 FCR 332 at [54], the purpose of these provisions is to create a mechanism whereby an unwilling employer may be brought to the bargaining table without industrial action and subjected to a requirement to bargain in good faith. 13 Noting that the method the Commission considers appropriate for working out whether a majority of employees want to bargain is at the discretion of the Commission, the Explanatory Memorandum to the Fair Work Bill 2008 stated at [979] that methods might include a secret ballot, survey, written statements or a petition.

Background facts 14 The background facts were uncontroversial. The following summary is largely drawn from Woodside's written submissions and the Directions and decisions of the Commission. 15 In its application in the Commission, the AWU asserted that it had "collected signed individual petitions from a majority of employees who will be covered by the proposed [a]greement" and undertook to provide those petitions to the Commission "on a confidential basis". According to the AWU, the Petitions were gathered in the period from 22 April 2022 to 2 June 2022. Employees who signed the petitions were asked to verify their identities by signing the petition using an identity verification platform called DocuSign. According to Woodside, once a person signs a document using DocuSign, a "Certificate of Completion" is issued to the DocuSign account holder. 16 In its written submissions Woodside noted that since at least the decision in National Union of Workers v Lovisa Pty Ltd (No2) [2019] FWC 285, the Commission has sometimes determined whether there is majority support for bargaining by privately comparing petitions provided by an applicant on a confidential basis (that is, with only redacted copies of the petitions required to be served on the employer) with a list of employees provided by the employer. 17 Woodside filed a response to the application on 6 June 2022 in which it expressed its opposition to the making of the majority support determination. Among other things, it noted that the AWU relied on the petitions to establish that a majority of employees in the relevant cohort want to bargain. It informed the Commission that it had not seen the petitions and said that when it does it would assess them. It expressed its concern that "they may have been unfairly procured from employees by reason of a campaign involving fundamental and material misrepresentations". Consequently, it advised the Commission that it did not admit that the petitions "evidence an informed choice about majority support". Woodside also indicated that it disputed that the employees to whom the application relates were fairly chosen. 18 In its response, Woodside indicated that it intended to apply to the Commission "within a reasonable timeframe" for orders for the production of documents, including original and unredacted copies of the petitions identified by the AWU in its application. It also mentioned its intention to do so in an email sent by Mr Longland on 30 June 2022 to the Deputy President's chambers. 19 On 12 July 2022 the Deputy President issued directions in relation to the conduct of the proceeding (Directions). The Directions included the following paragraphs: [6] It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows: • the AWU files with the FWC and serves on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022; • the AWU files the Petitions with the FWC on a confidential basis and serves a redacted version on Woodside by 4pm, Thursday 21 July 2022; • Woodside files with the FWC on a confidential basis a list of Employees employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the Employee's employment by 4pm, Thursday 21 July 2022 (List of Employees); and • the FWC compares the Petition signatures to the List of Employee in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement. … [8] In order to determine this matter or ascertain if there is a necessity for a hearing, the FWC DIRECTS Woodside to file with the FWC and serve on the AWU by 4pm, Thursday 21 July 2022: a. An outline of submissions in response to the Application, including but not limited to: • the relevant 'time' for the purposes of section 237(2)(a)(i); • whether it opposes the process for determining Employee support for the Application proposed in paragraph [6] above and, if so, what alternative method Woodside proposes; • whether the group of Employees was fairly chosen; • whether it is reasonable in all the circumstances for the FWC to make the majority support determination sought by the AWU; and b. A signed and dated witness statement for any witness upon whose evidence Woodside relies. c. A copy of any document on which Woodside relies. d. A copy of any authority on which Woodside relies. (Original emphasis.) 20 On 15 July 2022 Woodside's lawyers, Corrs Chambers Westgarth, emailed to the Deputy President's chambers and the AWU an application for an order seeking the production of the following documents: (a) unredacted copies of the petitions; (b) each certificate of completion issued by DocuSign in respect of the petitions; and (c) every communication sent to each of the employees between 1 February 2022 and 1 July 2022, including to their private email addresses, from: (i) Mr Doug Heath (MUA WA Branch Deputy Secretary/Offshore Alliance Organiser); (ii) any person on behalf of the AWU; (iii) any person on behalf of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); and (iv) any person on behalf of the "Offshore Alliance". 21 Woodside asserted that the petitions were "… unfairly and improperly procured on account of fundamental and material representations …" contained in correspondence from Mr Heath to the employees and on posts on the Offshore Alliance Facebook Page. It submitted that, if the petitions were not produced, it would be denied the opportunity to test their integrity. 22 In their email Corrs provided an explanation for the delay in filing the application, said it looked forward to hearing from chambers "with directions as to the determination of [the] application", and indicated that they could be available at short notice "should the Deputy President wish to hear from the parties as to any impact the determination of [the] application may have upon the [Directions]". They did not, however, seek a variation of the Directions. 23 By return email the Deputy President, through her associate, directed the AWU to provide to Woodside by 4 pm on 18 July 2022 (later extended at the AWU's request to the following day) any documents it was prepared to give them and, to the extent that it opposed production of any of them, reasons for its opposition. 24 The AWU opposed the production of the petitions on the ground that they were provided to the Commission on a confidential basis so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining. 25 The Commissioner denied Woodside's application in a decision published on 20 July 2022: Australian Workers' Union v Woodside Energy Ltd [2022] FWC 1892 (the Production Decision). Woodside complains that it had no notice that the decision would be made and was given no opportunity to respond to the AWU's submission. The next day Woodside filed a notice of appeal from the Production Decision and on 25 July 2022 it filed an application seeking an order that the Deputy President recuse herself from further hearing or otherwise dealing with the matter. 26 A Full Bench of the Commission heard Woodside's appeal from the Production Decision on 26 August 2022. Woodside's recusal application was heard by the Deputy President on 30 August 2022. On 2 September 2022 the Full Bench refused permission to appeal from the Production Decision: Woodside Energy Ltd v The Australian Workers Union [2022] FWCFB 168 (Production Appeal Decision). On 14 September 2022 the Deputy President published her decision on the recusal application: Australian Workers' Union v Woodside Energy Ltd [2022] FWC 2236 (the Primary Recusal Decision). Woodside lodged its appeal from that decision on 16 September 2022. A Full Bench of the Commission heard the appeal on 21 October 2022 and on 25 October 2022 it granted Woodside permission to appeal but dismissed the appeal: Woodside Energy Ltd v Australian Workers' Union [2022] FWCFB 192 (the Appeal Recusal Decision). 27 As I mentioned earlier, the AWU's application is listed for hearing before the Deputy President commencing on 28 November 2022. Opening submissions are to be filed by 23 November 2022 and closing submissions between 8 and 22 December 2022. Woodside notified the Deputy President of its application to this Court and asked for the directions for hearing to be vacated, pending the hearing and determination of that application, but its request was declined. Woodside was advised that "unless otherwise ordered by the Federal Court, the Deputy President intends to complete the hearing of the merit of the Application prior to 16 December 2022".

The relevant test 28 Woodside submitted that the interlocutory relief it seeks is both "appropriate and available". It contended that the test to be applied is that laid down by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (ABC v O'Neill) at [65]-[72]. That test requires an applicant to satisfy the Court of two matters. The first is that there is a serious question to be tried or, put another way, that it has a prima facie case for the relief it seeks in the sense that, if the evidence remains as it is, there is a probability that at trial it will be entitled to relief. The second is that the balance of convenience favours the grant of the injunction. 29 The ABC v O'Neill test has been applied in similar cases. Woodside referred to Bellia v Commissioner of Fair Work Australia (2010) 201 IR 111 at [17]-[18]; Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 at [39]; and One Tree Community Services Inc v United Voice [2019] FCA 1309 at [24]. As the AWU pointed out, however, and despite what the Court was led to believe in those cases, that test is inapplicable. 30 Despite the way in which Woodside's application is couched, it was common ground that the order Woodside is seeking is a stay of the proceeding before the Commission. In Technical and Further Education Commission v Pykett (No 1) [2014] FCA 727 at [9], Perram J explained that, where the application is for orders under s 39B of the Judiciary Act, the power to grant a stay is found in the Court's "inherent" jurisdiction to protect the subject matter of the litigation before it. His Honour went on to say at [10]: Neither the Federal Court of Australia Act 1976 (Cth) nor the Federal Court Rules confer any express power to grant a stay of proceedings before an administrative tribunal such as the Commission. Authority establishes that this Court will only grant a stay of proceedings before the Commission, when its supervisory jurisdiction is involved, where there are shown to be exceptional circumstances: see Re Australian Industrial Relations Commission and CFMEU; ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322 at [2] per Lee, Goldberg and Weinberg JJ; EnergyAustralia Yallourn Pty Ltd v CFMEU [2013] FCA 360 at [33]-[38] per Murphy J. 31 His Honour rejected a submission by TAFE that this principle did not apply because the stay was sought under s 23 of the FCA Act, not the inherent jurisdiction, on the basis that the inherent jurisdiction is an aspect of the power conferred by s 23. 32 EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360 concerned an interlocutory application to the Court to stay an order of the Commission extending the 30-day period in which the union could commence industrial action under s 459(1)(d) of the FW Act until the hearing and determination of the substantive application. Murphy J acknowledged at [31] that a stay or an order of the Commission or the grant of an interlocutory injunction against a party to that order may be appropriate in some circumstances to preserve the subject matter of a proceeding pending its hearing. His Honour observed that "[t]he Court has an inherent or implied jurisdiction to enable it to discharge its duties as a Court by preserving the subject matter so as to preserve its processes and prevent a proceeding being rendered nugatory". In rejecting a submission from the company that exceptional circumstances are not required before a stay can be granted, his Honour said (at [34]): This is an application to the Court in its original jurisdiction seeking the issue of prerogative writs, and seeking orders under s 23 of the Federal Court of Australia Act 1976 (Cth) … I am bound to have regard to the principles set out by McHugh J in Re Australian Nursing Federation; Ex parte State of Victoria and Anor (1993) 112 ALR 177 ("Re ANF"). As his Honour explained where a stay is sought in respect of an order of the Commission the applicant must show some particular detriment if the order were to be allowed to stand while the judicial review application is pending - such that exceptional circumstances exist which warrant the grant of a stay. At 185 his Honour also made it clear that a strong case will need to be shown before a stay will be granted. 33 The same position was taken in Shop, Distributive and Allied Employees v National Retail Association [2011] FCA 1167 at [6] (Tracey J) (SDA v NRA) and National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56 at [15]-[18] (Jessup, Buchanan and Rangiah JJ) (NRTA v RSRT). In SDA v NRA at [7] Tracey J said that it was necessary for an applicant to show "some particular detriment or untoward result" if the impugned order were allowed to continue in operation while the judicial review application is pending. In NRTA v RSRT at [16] the Full Court distinguished an application where "the act of a public regulatory official" was sought to be stayed from the usual case where an interlocutory injunction is sought to restrain civil proceedings and proceeded to apply the principles in Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 and Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 rather than those in ABC v O'Neill. 34 Strictly speaking, I interpolate, this Court does not have an inherent jurisdiction. What is sometimes called the inherent jurisdiction is more accurately an implied jurisdiction: Cabal v United Mexican States [2001] HCA 42; 180 ALR 593 at [15]. In DJL v The Central Authority (2000) 201 CLR 226 at 241, the High Court counselled against the use of the term as an identification of "the incidental and necessary power of a statutory court". This Court is in no different position in this respect than the High Court. Both are "statutory courts". And in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 618 Wilson and Dawson JJ observed that the Federal Court's power to grant a Mareva injunction "may … be found in an inherent or, more correctly, implied power …", the power being implied because of the statutory nature of the court. Their Honours went on to say at 619 that: [T]he vesting of judicial power in the specific matters permitted by the Constitution (see ss.75, 76, 77) carries with it such implied power as is necessarily inherent in the nature of the judicial power itself. Having regard to the declaration of the Federal Court as a superior court and a court of law and equity, the implied power should be construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction. 35 The judgments to which I referred in [30]-[33] above drew on a line of authority in the High Court: see, for example, Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Building Labourers' Foundation (1981) 34 ALR 208 at 211-212 (Mason J); Re Griffin at 42 (Brennan J); Re Moore; Ex parte Pillar (1991) 103 ALR 11 at 14 (Dawson J); and Australian Nursing Federation at 184-5 (McHugh J). 36 In Re Marks at 212, Mason J observed that the grant of a stay of an order in the exercise of the inherent jurisdiction of the court was an exceptional course. In Re Moore at 14, after noting the observation by Mason J in Re Marks at 212, Dawson J observed that the power to grant a stay is to be found only where it is necessary to preserve the subject matter of the litigation or, perhaps, where the refusal would make it difficult to grant the final relief sought. 37 In Re Griffin at 42 Brennan J explained: There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations. 38 None of the judgments of this Court upon which Woodside relied (mentioned in [29] above) referred to any of these authorities. It is reasonable to infer that the attention of the judges in those cases was not drawn to them. 39 Woodside did not dispute that it was seeking a stay of proceedings but claimed that the authorities to which I have referred, and upon which the AWU relied, are distinguishable because they were concerned with applications to stay orders rather than proceedings. 40 While it is true that those cases involved applications to stay orders, that is insufficient to distinguish them. That is clear from the reasons of McHugh J in Australian Nursing Federation. While his Honour there drew a distinction between a stay of further proceedings in litigation and a suspension of a judgment or order, he did so because there was a High Court rule dealing with a stay of proceedings (High Court Rules 2004, O 55 r 10) and a stay of an order could only be made in the Court's inherent jurisdiction. In this Court, however, the Court's sole source of power to stay the proceedings in the Commission is its inherent (or implied) jurisdiction. Certainly, Woodside did not point to any other power. In any case, in Australian Nursing Federation at 185 McHugh J also said: Although it may be easier to obtain a stay under O 55, r 10 than the inherent jurisdiction, the jurisdiction under O 55, r 10 is also one that is to be used sparingly and with caution. Ordinarily a strong case will need to be shown before a stay will be granted under that rule. 41 Moreover, in Newcrest Mining Limited v Industrial Relations Commission (NSW) [2005] NSWCA 85; 139 IR 72, upon which the AWU also relied, Bryson JA held that the approach taken in the cases discussed above applies to the determination of an application for an interlocutory order to stay proceedings in the NSW Industrial Relations Commission pending determination of a claim for an order in the nature of prohibition. His Honour stated at [5] that, "in principle the inherent power of the Court re-conferred by s 23 of the Supreme Court Act 1970 (NSW) extends to stay of proceedings in those circumstances". He went on to explain that this power to stay proceedings exists because it is necessary for the administration of justice and it is to be exercised only in such a situation. His Honour continued: The power to order a stay is discretionary and such an intervention should not take place lightly; the outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be clearly shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue, and that the outcome will be so difficult to remedy or otherwise so adverse and severe in its impact that interlocutory intervention … should take place notwithstanding that there has not been an opportunity for full consideration. Questions of convenience are relevant, but not, in my view, simply as the balance of convenience: the test is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other … (Emphasis added.) 42 There is no apparent reason why the same approach is not applicable here. All Woodside could say in response was that Newcrest has never been followed in this Court. That was scarcely an answer to the AWU's argument. 43 The correctness of the approach taken in Newcrest has not been doubted. And it was followed by Hodgson JA in Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369 at [12] and cited with approval by Leeming JA in Thomson v Young [2013] NSWCA 300 at [8]-[9]. In Rockdale Beef at [12] Hodgson JA said that the power of the court to order a stay of proceedings in the Industrial Relations Commission should generally only be exercised if the likely outcome but for a stay is "so adverse and severe that justice requires interlocutory intervention". 44 In any event, an order staying the proceeding would also stay the orders the Deputy President has made for the matter to proceed to a hearing.

Does Woodside have a strong case? 45 In its originating application Woodside alleges that both the Deputy President and the Full Bench committed numerous jurisdictional errors. For the purposes of its interlocutory application, however, it rested its case on two matters only. The first was that the Deputy President's Directions and the Production Decision demonstrate that there is a reasonable apprehension that she has prejudged the issues Woodside has raised concerning the AWU's application. The second was that the effect of the Production Decision caused Woodside (another kind of) procedural unfairness. 46 It is trite that a decision of a tribunal may be vitiated for either actual or apprehended bias, although a court has a residual discretion to refuse relief (Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at [67] per Kiefel CJ, Bell, Gageler and Keane JJ; Edelman J at [99]). As Nettle and Gordon JJ put it in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [54]: The rule against bias is one aspect of the requirements of procedural fairness. Breach of the rules of procedural fairness, including where apprehended bias is demonstrated, constitutes jurisdictional error, attracting relief under s 75(v) of the Constitution. 47 Ordinarily, for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error, an applicant for relief is required to show that the breach was material, that is to say, that if the breach did not occur, there is a realistic possibility that the outcome could have been different: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ). But there is no such requirement here. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441; 390 ALR 590 at [33] Kiefel CJ, Gageler, Keane and Gleeson JJ explained that: The qualification "ordinarily", and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another. (Footnotes omitted.) 48 The test for a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made": Isbester v Knox City Council (2015) 255 CLR 135 at [20] (Kiefel, Bell, Keane and Nettle JJ). The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it: Isbester at [23]. A two-step process is involved. The first requires the identification of what it is said might lead the decision-maker to decide the case other than on its merits. The second requires the articulation of the logical connection between the suggested reason and the feared deviation from that course. See Ebner at [8]. 49 A finding of apprehended bias is not to be reached lightly. To the contrary, it must be "firmly established". See Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); at 364 (Wilson J); 371 (Dawson J). There must be "strong grounds" for inferring the existence of a reasonable suspicion: Re JRL; Ex parte CJL at 359-360 (Wilson J). As the AWU put it in submissions, "the reasonable apprehension that might be formed by a fair-minded lay observer must be that the decision-maker is 'so committed to a conclusion as to be incapable of persuasion to a different view' (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 per Kenny, Tracey and Middleton JJ at [25] and [28])". 50 Where the alleged apprehension is one of pre-judgment, three additional points should be made. 51 First, an impartial and unprejudiced mind is "not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it": R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 554. As Gleeson CJ and Gummow J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72]: Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias… The 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. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. … 52 Second. the bare assertion of an apprehension of bias through pre-judgment "would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making": Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63] (Gummow A-CJ, Hayne, Crennan and Bell JJ). 53 Third, all the circumstances must be considered and they include what the decision-maker does afterwards because that "may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures". An initial failure to hear a party or to allow it to put its case may be cured by subsequently giving it the opportunity to be heard or to put its case. See Re JRL; Ex parte CJL at 372 (Dawson J). 54 I am far from satisfied that Woodside has a strong case for final relief. Indeed, Woodside made no attempt to persuade the Court that it does. 55 Most of the argument was directed to the apprehended bias point. In its written submissions Woodside merely contended that it has "an arguable case that the conduct of the Deputy President … gives rise to a reasonable apprehension of bias" and that the three decisions are "each affected by material jurisdictional error". The arguments it mounted appear to be the same as those which were rejected by the Commission. It made no reference to the particular errors it pleaded in its originating application in either its written submissions or oral argument. In oral submissions it contended that there was "at least a strongly arguable case" that the Deputy President might have prejudged the following issues: (a) the reliability of the petitions; (b) whether the AWU had demonstrated a reasonable hypothesis that a majority of employees wanted to bargain, which Woodside argued (relying on INPEX Australia Pty Ltd v Australian Workers' Union [2020] FWCFB 5321; 301 IR 424); and (c) the appropriateness of the petition method for the purposes of s 237(3) of the FW Act. 56 In its written submissions Woodside contended that [6] and [8] of the Directions were "predicated on an assumption that some method for determining majority support would be adopted" and might cause a fair-minded lay observer to reasonably apprehend that the Deputy President might have formed a view, or prejudged, that the petitions were "a reliable indicator of petitioners' wishes" and that "the reasonable hypothesis requirement had been satisfied". 57 I have considerable difficulty understanding how anything said by the Deputy President in her Directions might conceivably cause the hypothetical lay observer to think that she might not decide any of these questions impartially. After all, [6] was a mere proposal, indeed the AWU's proposal, and [8] required Woodside to file submissions on, among other things, whether it opposed the proposal and, if so, what alternative it proposed. 58 In oral argument, Woodside submitted that a fair-minded lay observer would consider "significant" what was said in [6] and [8] of the Directions together with what was said in the Production Decision. It pointed to the following matters: that the Directions required Woodside's submissions to be filed by 21 July; that when it lodged its application, Woodside informed the Deputy President that it could be available at short notice if she wanted to hear from the parties about the impact the determination of its application on the directions; and that the Deputy President reminded Woodside of the directions. 59 Woodside relied on the following paragraphs of the Production Decision: [19] The AWU submit that they oppose the Application for Production basis of relevance and individual privacy and freedom of association concerns. [20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining. [21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations. [22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining. [23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application. … [25] Employer concerns as to the framing of the petition questions, the type of data gathered or the timing of data gathering are typically addressed by the provision of a blank or redacted petition as contemplated by the Directions. … [27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities. 60 In the originating application itself, Woodside only relied on [21]-[23] and [28]. I fail to see how [28] assists its case. Presumably, neither did senior counsel. 61 I accept that the impugned paragraphs suggest a predisposition towards the petition method. But that is not enough, for the reasons given at [51] above. And I am prepared to assume for present purposes that it is arguable that, reading the impugned paragraphs in isolation, a fair-minded lay observer might come to the view that the Deputy President might have pre-judged the appropriateness of the petition method. But the fair-minded lay observer would not read these paragraphs in isolation. Among other things, the fair-minded lay observer would know, and take into account, that at this stage the petition method was merely a proposal, that the Deputy President had invited Woodside to make submissions on its suitability, and that she was yet to receive those submissions. The fair-minded lay observer would also know, and take into account, the fact that the Directions required the AWU to provide a statutory declaration as to the circumstances in which the petitions were collected, as the Deputy President noted at [28]. The fair-minded lay observer would also have regard to the Deputy President's observation, also at [28] that "[i]f this evidence is contested by Woodside when it is filed by the AWU, Woodside have the opportunity to cross-examine the declarant as to the contents of the statutory declaration at the hearing of the [AWU's] Application". The fair-minded lay observer would also have read all of the reasons. 62 I note, too, what the Full Bench had to say about the impugned paragraphs at [52] of the Appeal Recusal Decision (about which no specific complaint is made in the originating application): Woodside's submissions concerning the production decision seek to wrench it out of its context. The parts of this decision upon which Woodside relies do not have as their purpose the advocacy or defence of the petition method of assessing majority support, as Woodside contends. Rather, they constitute the Deputy President's reasons for refusing Woodside's application to seek the production of documents which would disclose the identity of the employees who signed the AWU's petition, and they would be understood by the fair-minded lay observer in this way. Thus, paragraphs [21]-[23] and [27] may only reasonably be read as explaining that the "Petition Method" (a defined term explained in paragraph [3] as referring to where the Commission "compare[s] the information contained in the Petitions with Employee identification information provided by Woodside") is the most common mechanism used by the Commission in relation to applications for majority support determinations. The import of this is, clearly, that the production of the documents sought by Woodside would be contrary to this usual practice, which preserves the confidentiality of the employees' identities. The citation of the decision in NUW v Lovisa Pty Limited in paragraph [24] would make this pellucidly clear to the fair-minded lay observer, who would therefore not read these paragraphs as indicative of the possibility of prejudgment on the issue of the appropriate method for assessing majority support under s 237(2)(a). It might be added that the fair-minded lay observer would also be taken to be aware, from the directions, that the Deputy President was open to consider submissions in opposition to the petition method, and would read the production decision in this light. (Footnote omitted). 63 When the Production Decision is read as a whole and in the light of the Directions, it seems to me that any case Woodside may have that the Decision is affected by apprehended bias is, at best, a weak one. 64 The ground relating to the Production Decision is pleaded in the following way: The effect of the Production Decision was to exclude the Applicant from accessing and inspecting unredacted copies of the petitions and other relevant documents, giving rise to procedural unfairness, as the Applicant was not given an opportunity to see for itself the evidence as given to the Commission, unredacted and unedited, and was consequently not given a fair opportunity to correct or contradict the evidence. 65 No written submissions were directed to this matter. 66 As the AWU submitted, the challenge to the Production Decision involves a challenge to the exercise by the Deputy President of a procedural discretion conferred on the Commission by s 590(1) of the FW Act to "inform itself in relation to any matter before it in such manner as it considers appropriate". The Full Bench denied permission to appeal from the Production Decision, finding that there were insufficient prospects of success. In refusing permission to appeal, a differently constituted Full Bench to that which made the Appeal Recusal Decision observed in the Production Appeal Decision at [26] that Woodside's complaint was premature: Insofar as Woodside alleges jurisdictional error based on a denial of procedural fairness, that is entirely premature. The Deputy President has not yet made a majority support determination, nor has she taken the prerequisite step of making a finding pursuant to s 237(2)(a) that a majority of employees want to bargain nor even decided upon the method by which the existence or otherwise of majority support may be determined. In these circumstances, it is impossible to say that any denial of procedural fairness has yet occurred or that the decision under appeal has irreversibly prejudiced Woodside's interests in the matter. 67 There is force in these remarks. 68 In oral argument Woodside pointed out that it had informed the Commission in its response to the AWU's application that it would offer "appropriate confidentiality undertakings" in relation to the access and use of the material produced in answer to its foreshadowed application for production of documents. The same point was made to the Full Bench in the appeal from the Production Decision. But no undertakings were evidently proposed, let alone offered. As the Full Bench said in the Production Appeal Decision at [24]: The order sought would have required disclosure to Woodside of the names of employees who indicated, in what was intended to be a confidential petition process, that they supported bargaining for an enterprise agreement, as well as the disclosure of communications sent to all employees' private email addresses, regardless of whether they had signed a petition. Further, it was unaccompanied by any proposal for a regime to protect employees' confidentiality. 69 In these circumstances the Full Bench did not consider that the Deputy President erred in taking into account and giving weight to privacy considerations. As presently advised, nor do I. 70 Furthermore, I was informed that the only redactions made to the petitions were to conceal from Woodside the names of the individual employees "for the reasons of confidentiality and concern, apprehension at the Commission, being the specialist tribunal in this area, [which] has long recognised that employees may have about sticking their neck out in that way and potentially being disadvantaged in their employment". Having regard to the other measures proposed by the Deputy Commissioner to protect Woodside's interests in the event that the petition method were to be adopted, I find it hard to see what impact this has on Woodside's ability to be heard on any of the relevant issues. As Mr Gibian SC for the AWU explained, what the Deputy President proposed was comparing the names and signatures on the petition to the names on a list of relevant employees (which Woodside was to file with the Commission on a confidential basis) and then satisfy herself that the number of signatures exceeds 50%. If misrepresentations were made to employees in any documents, surely the documents will speak for themselves.

Has Woodside shown exceptional circumstances? 71 The short answer to this question is no. 72 There are no exceptional circumstances which would warrant the making of the order Woodside seeks. It is not necessary to preserve the Court's jurisdiction to deal with its application for final relief. Nor would the refusal of a stay have other consequences "so adverse and severe that the attainment of justice requires interlocutory intervention". The public interest favours permitting the Commission to undertake its statutory functions consistent with the FW Act. 73 There is no significant prejudice to Woodside if a stay is refused. The subject matter of the litigation is preserved. Should Woodside fail to persuade the Commission of the merits of any of its arguments in the AWU's application for a majority support determination, it may still pursue its rights to the final relief it seeks. The refusal of a stay would create no difficulty in the determination of the proceeding in this Court. 74 Woodside argued that the very fact that its case is that the Commission is about to embark on a proceeding which it contends is vitiated by jurisdictional error makes the circumstances exceptional. But that circumstance could hardly be exceptional, not least because there is no right of appeal from the Commission to the Court and, absent error of law on the face of the record which is difficult to establish since the record does not include the reasons of the Commission (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [87]-[97] per Dowsett, Tracey and Katzmann JJ), this Court may only interfere with a decision of the Commission if it is affected by jurisdictional error. 75 Woodside also argued that the circumstances were exceptional because it could not await the outcome of the proceeding in the Commission as it would risk losing its right to complain, citing Vakauta v Kelly (1989) 167 CLR 568 at 572. That argument is baseless. 76 In Vakauta v Kelly at 572 Brennan, Deane and Gaudron JJ said that: Where [a judge makes] comments [in the course of a trial] which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. 77 But here Woodside did not stand by and wait. To the contrary, it asked the Deputy President to recuse herself, appealed the Deputy President's decision and, when it lost the appeal, it filed its application in this Court for judicial review. The principle referred to in Vakauta v Kelly has no bearing on this case. 78 In support of its argument that the balance of convenience was in its favour, Woodside pointed to three matters it claimed would cause it serious prejudice. The first was the time, expense and effort that would be wasted in preparing for, and appearing at, the hearing. The second was that, if a majority support determination were made, Woodside would be required "forthwith" to distribute a "notice of employee representational rights" and therefore commence bargaining and adhere to good faith bargaining requirements. It also raised the possibility that it might be subjected to applications for bargaining orders. These consequences, it submitted, are "onerous" and will be difficult to undo if the Court were ultimately to find that the Deputy President exceeded her jurisdiction. The third was that, if the Deputy President did make a majority support determination, "the pendency of the final hearing in this court will create uncertainty as to the rights of the parties, as well as Woodside's employees the subject of the proposed enterprise agreement". 79 I found this argument unpersuasive, in substance for the reasons advanced by the AWU. 80 First, the inconvenience of preparing for, and participating in, the proceeding before the Commission is obviously not an exceptional circumstance and was not said to be. 81 In any case, as the AWU pointed out, most of the time, expense and effort has already been incurred. The inconvenience of participating in the proceeding, estimated to last between one and four days, could not be regarded as serious prejudice particularly to a litigant like Woodside. 82 As for the other two matters, if the Deputy President makes a majority support determination, all the complaints Woodside has about each of the decisions the subject of the present application can be prosecuted on appeal to the Full Bench and/or in an application for judicial review. It could seek a stay of the Deputy President's order pending an appeal to the Full Bench. Section 606 of the FW Act gives the Commission an express power to grant a stay of a decision the subject of an appeal. 83 In any event, the consequences of a majority support determination for Woodside could hardly be said to be extreme. While Woodside would have to issue a notice to relevant employees (FW Act, s 173(2)(b)) and then engage in bargaining, including meeting at reasonable times, responding to and giving genuine consideration to proposals, and sharing relevant information, it is not required to make any concessions or to reach agreement (FW Act, s 228(1)). Moreover, there is no penalty for contravening a majority support determination.

Conclusion 84 For all the above reasons, Woodside's interlocutory application should be dismissed. No application for costs was made or foreshadowed. In those circumstances, there will be no order as to costs. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.