Apprehended Bias
This appeal before the Full Bench of the Australian Industrial Relations Commission comprising the President, Justice Giudice, a Deputy President, Mr Hamilton and Commissioner Spencer handed down in Melbourne on 11 February 2009 deals with the often difficult and touchy subject of an application that a member of a Tribunal withdraw on account of “apprehended bias”. This case involved Australia Post introducing a new delivery operations program known as Future Delivery Design (FDD). Australia Post had invited the Union, the CEPU, by letter to a briefing it proposed to give to Commissioner Foggo. Commissioner Foggo, no doubt pursuant to the Panel System used by the Commission, was a Commissioner who regularly dealt with applications affecting both Australia Post and the CEPU. The CEPU, despite being invited to nominate three representatives to participate in the briefing, did not attend. The briefing proceeded. Thereafter, the CEPU wrote to the Commissioner seeking to have her recuse herself from any matter dealing with Australia Post’s new system called FDD and the CEPU.
The Commission set out the principles of making a successful apprehended bias application and it was based upon this test: “Whether the parties or the public, might, in the circumstances, entertain a reasonable apprehension that the Commission might not bring an impartial or unprejudiced mind to the proceedings.” (at [10]). The Full Bench noted the statutory injunction together with authority to the effect that Commission members shall keep themselves acquainted with industrial affairs and conditions (see s 78 of the Workplace Relations Act 1996 (Cth)). Reference is also made to the decision of Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (No 1) (1992) 107 ALR 581; 42 IR 352 at 582-583 (ALR). The Commissioner, in her judgment upon which the appeal was based, referred to the fact that a CEPU representative did attend the inspection of the FDD system at Australia Post’s Acacia Ridge premises in Queensland. No problem regarding the attendance of the Commission was raised by that representative of the Union. This subsequent visit to the Acacia Ridge premises had taken place on 3 April 2008; the earlier briefing which the CEPU did not attend was on 7 March 2008. The Commission identified the force of s 78 of the Act when they said:
“Members of the Commission are expected to be in touch with developments which might be relevant to their work. So much is clear from s 78 of the Act. The panel system, the prevailing method of organising dispute resolution with the Commission, is designed to give individual members a degree of specialised knowledge of the industries in their panel. Even so, briefing by an employer in the absence of the relevant Union should be approached with caution. It is not desirable, however, to generalise about that matter. The circumstances alter cases and each application must be considered in the context of particular facts and circumstances.” (at [22])
The case for the Union failed because it was invited to the 7 March briefing and did not attend, nor did it communicate its concern about the briefing on that day to the Commissioner. Subsequently, and most importantly, when the matter was back before the Commissioner on 3 April 2008, and the Union was represented, it made no objection to what took place, and it was only much later that any objection to the Commissioner having attended the premises of Australia Post at Acacia Ridge was raised. The Commission found that the Union case failed because it was incumbent upon the CEPU to object to the briefing as soon as practicable. As a consequence, the CEPU has waived any right it had to object to the Commissioner dealing with the application on the ground of apprehended bias.
The Bench, however, does sound a warning to members of the Commission and parties that if such matters are to take place, everybody is made aware of them, that any objections which could be made are made at the earliest opportunity, and that any private inspections of new equipment or processes are only held with the knowledge and/or presence of the Union. This puts a gloss upon s 78 so as to make sure that the Commission is seen to follow the principles of procedural fairness and natural justice.
