Federal Court of Australia

Thiess Pty Ltd v Sheehan [2020] FCAFC 198

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be granted.

2.    The appeal be dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK AND KERR JJ:

1    The Wheatstone Project near Onslow in Western Australia occupies a geographical area of some size. The site itself occupies an area of some 10 square kilometres and is surrounded by a security fence. It is in a remote area of the north west of Western Australia.

2    Thiess Pty Ltd (“Thiess”) sub-contracted the relevant employees to undertake part of the construction work. Workers are employed by Thiess on a fly-in and fly-out basis. Whilst working at the site Thiess provides its workers with accommodation some distance away from the site and its security fence. They are bussed from their accommodation to a gate at the security fence and thereafter bussed from that gate to their place of work on site.

3    When employees commenced work at the start of each day is not in issue in the proceeding. In issue is whether the time for which they were to be paid ended once the employees arrived back at the crib hut located on site (as Thiess would have it), or ended at that point of time when the employees exited the security gate at the perimeter of the site having been picked up by bus at the crib hut (as the employees would have it). One such employee is Mr Sheehan. Although the duration of the bus journey in dispute varied depending upon where the relevant crib hut for work on a particular day was located, Mr Sheehan estimated that in his case it was about 20 minutes each day.

4    All relevant workers are employed under the Thiess Pty Ltd Wheatstone Project Agreement 2012 (the “Wheatstone Agreement”).

5    To facilitate the resolution of the dispute as to the entitlement to be paid to employees for this period of time, questions were posed for resolution by the primary Judge. In very summary form, his Honour concluded that these questions were to be answered such that the employees were entitled to be paid for the period of time in issue.

6    Thiess disagreed with that conclusion. It seeks leave to appeal and, if leave be granted, orders including an order allowing the appeal. Both the application for leave and the determination of the appeal were heard concurrently.

7    It is concluded that leave to appeal should be granted but that the appeal should be dismissed.

The requirement for leave

8    The proceeding before the primary Judge was commenced as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”). The group members were 151 named employees.

9    The decision given by the primary Judge answering the questions posed for resolution was characterised as an interlocutory decision, requiring the grant of leave to appeal: s 24(1A) of the Federal Court Act .

10    The two questions posed for resolution, which remain in contention, and the answers to those questions, were expressed as follows:

Pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) the issues of law and fact common to the claims of the applicant and the group members be answered as follows:

(a)    Does the reference to Employee’s Project Working Hours finishing ‘at the inside of the Site Employee access gates’ in cl 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012 (Agreement) refer to:

(i)    a point immediately inside the ‘Site Employee access gates’; or

(ii)    any point within the Wheatstone Project site?

Answer:    The reference to Employee’s Project Working Hours finishing ‘at the inside of the Site Employee access gates’ refers to a point immediately inside the ‘Site Employee access gates’.

(b)    Is the effect of the phrase ‘finish at the inside of the Site Employee access gates’ in cl 16(9) of the Agreement to:

(i)    define the place and the time at which employees finish their Project Working Hours under the Agreement; and

(ii)    require Thiess Pty Ltd to use such place and time for the purposes of calculating employees’ periods of work relevant to paid entitlements under:

(A)    cl 10 – Site Allowance; and

(B)    cl 20 – Overtime Payments;

of the Agreement?

Answer:    Yes, as to both (i) and (ii).

11    If leave be granted, the written Outline of Submissions as filed on behalf of Thiess identified the “governing error” in the reasons of the primary Judge as follows:

The governing error in the primary judgment

[10]    Thiess submits that Order 2(b) was the product of the primary judge’s misconstruction of clause 16(9), which in turn was the result of two anterior errors:

(a)    The first error was the view that clause 16(9) laid down ‘the time that must be included when scheduling and computing working hours, and that it stipulated the start and finish of scheduled working hours’.

(b)    The second error was the view that clause 16(9) was in part concerned with ‘identifying what will qualify as payment for work’, seemingly because the primary judge linked scheduled working hours with employees’ entitlement to remuneration, and found that the latter triggered the former.

[11]    The correct construction is that:

(a)    The purpose of the concept of Project Working Hours was not to state prescriptively when scheduled working hours must start and finish, but to identify when scheduled working hours could be scheduled.

(b)    Neither the concept of Project Working Hours, nor clause 16(9), had anything to do with identifying what would qualify as payment for work; indeed, clause 16(9) says nothing about employees’ entitlements to be paid. Those entitlements, and what triggers them, are to be found in other provisions – all of which explicitly link payment to the actual performance of work.

(footnotes omitted).

12    The discretion to grant or refuse leave to appeal, it has been said, is “a wide discretion” and one “not constrained by rigid rules”, but one “ordinarily guided by well-recognised principles”: Seven Network Limited v News Limited [2005] FCAFC 125 at [5], (2005) 144 FCR 379 per Branson J (Allsop and Edmonds JJ agreeing). Her Honour there went on to cite Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and continued on to state that “[c]onsideration is usually given to whether the judgment is attended with sufficient doubt to warrant its being reconsidered and to whether substantial injustice would result if leave were refused supposing the judgment to be wrong”. Leave is more readily granted, her Honour recognised, “where the judgment, if allowed to stand, will have the practical effect of determining the claim of a party to relief”.

13    Although the present proceeding centres upon the interpretation of particular wording in an enterprise agreement, it is concluded that leave to appeal should be granted but that the appeal should be dismissed. Leave should be granted primarily because the answers given by the primary Judge to the questions posed have “the practical effect of determining” the entitlements of a large number of employees.

14    But neither of the two limbs to the “governing error” have been made out.

The Wheatstone Agreement

15    The Wheatstone Agreement was approved by Fair Work Australia on 29 August 2012: Thiess Pty Ltd Wheatstone Project Agreement 2012 [2012] FWAA 7466.

16    The Wheatstone Agreement is expressed in cl 2 to bind Thiess, those employees in the classifications set out in cl 9 of the Agreement and the Australian Workers’ Union. The reach of the Agreement and its application was expressed as follows:

3. APPLICATION OF AGREEMENT

(1)    This Agreement shall apply to the on-site construction work for the Wheatstone Project (the Project) at Ashburton North near Onslow.

(2)    Provided that the Agreement shall not apply to:

(a)    Maintenance, upgrades, preparatory works, minor works, shut down and associated work undertaken to Chevron Australia Pty Ltd;

(b)    The transport of personnel to and from the Project;

(c)    Deliveries of materials and equipment to and from the Project;

(d)    The construction, maintenance or upgrades of off-site infrastructure (for example roads, power and communication systems which service the Site);

(e)    Off-site manufacture and off-site fabrication associated with the Project;

…

17    The construction work being undertaken by Thiess at the site was summarised by Fair Work Australia as follows:

[14]    In general terms, the four contracts relate to the work described below with the contract value to Thiess included in brackets:

•    the construction of a micro-tunnel ($60 million);

•    the design and construction of the breakwater and materials offloading facility ($130 million);

•    the design and construction of LNG storage and condensate tanks ($300 million); and

•    site preparation works for the downstream portion of the Wheatstone Project ($450 million)

The application for approval was opposed by a number of Unions which contended that “the AWU has not appropriately represented the interests of the employees who are to be employed under the Agreement”: [2012] FWAA 7466 at [30]. In nevertheless granting approval, the reasons provided by Fair Work Australia recite that the Wheatstone Project involves the construction of two liquefied natural gas trains and a domestic gas plant linked to four gas fields off the coastal town of Onslow: [2012] FWAA 7466 at [10]-[11]. At that time it was expected that the project would generate 6,500 new jobs and would generate a government revenue scheme of around $20 billion over the first 30 years of the two-train foundation development. Fair Work Australia also stated that the project provided Thiess with a “major opportunity to play a significant role in supporting the LNG sector in Western Australia”: [2012] FWAA 7466 at [15]. It was also stated that collectively the contracts were expected to generate “around $940 million for Thiess’s business over the course of four years and [would] involve the employment of in total an estimated 1030 employees under the terms of the Agreement”: [2012] FWAA 7466 at [16].

18    As approved, the Wheatstone Agreement is divided into 6 sections, being:

    Section 1: Preliminary, including cl 6 being a definition provision;

    Section 2: Income;

    Section 3: Project Working Hours, including cl 16;

    Section 4: Leave Provisions;

    Section 5: Contract of Service; and

    Section 6: Signatures.

19    Within Section 3, it is cl 16 which assumes central importance. That clause provides as follows:

16. HOURS OF WORK

(1)    Ordinary Hours for an Employee comprise thirty-six (36) hours per week averaged over a defined work cycle and, except in the case of shift Employees, are to be worked Monday to Friday between 6.00am and 6.00pm as required by the Company. Such Ordinary Hours are the specified hours under each Employee’s terms of employment by reference to which annual leave and personal/carer’s leave accrue.

(2)    Employees shall work standard Project Working Hours averaging sixty five (65) hours per week, Monday to Sunday inclusive, over a four (4) week cycle.

(3)    Project Working Hours consists of Ordinary Hours, RDO accrual hours and Regular Scheduled Overtime. An Employee may be required to work reasonable Additional Overtime as required by the Company and as set out in clause 18 — Working Additional Overtime of this Agreement.

(4)    Except as provided in clause 19 — Withdrawal of Overtime of this Agreement, an Employee’s Regular Scheduled Overtime shall be paid to them provided they are ready, willing and available to work the Regular Scheduled Overtime.

(5)    The meal break and rest period shall be scheduled each day so that Project Working Hours for each day are divided into three (3) approximately equal work periods.

(6)    The Company may stagger the time of taking meal and rest breaks to meet operational requirements.

(7)    The Company will determine the actual method of working Project Working Hours which best suits the operational requirements.

(8)    Where the Company wishes to vary the method of working Project Working Hours, they shall seek the agreement of the Employees involved. Failing agreement, the Company shall give those Employees one (1) week’s notice of the change.

(9)    An Employee’s Project Working Hours shall start at the Employee’s prestart and finish at the inside of the Site Employee access gates.

MEAL BREAK – DAY WORK

(10)    The Ordinary Hours of work shall be consecutive except for an unpaid meal break which shall not exceed half an hour.

(11)    When an Employee is required for duty during their usual meal break and the meal break is thereby postponed for more than half an hour, the Employee shall be paid at overtime rates in accordance with clause 20 — Overtime Payments until the meal break is taken.

(12)    An Employee, employed as a maintenance person, shall work during meal breaks at Ordinary Wages whenever instructed to do so for the purpose of making good breakdown of plant or upon routine maintenance of plant which can only be done while such plant is idle.

REST PERIODS – DAY WORK

(13)    The Company shall structure the Project Working Hours to include one (1) half-hour rest break to be taken without deduction of pay by Employees working the Project Working Hours on any day, Monday to Friday.

20    The phrase “Ordinary Hours” as employed in cl 16 is defined in cl 6 of the Wheatstone Agreement as follows:

An average thirty-six (36) hours per week, worked between the hours of 6.00am and 6.00pm, Monday to Friday each week or worked at other times outside of these hours in the case of shift Employees. Ordinary Hours plus RDO accrual hours are worked by Employees each day prior to qualifying for payment of overtime penalties.

The expression “RDO” as also employed in cl 16 is also defined in cl 6 as follows:

Rostered Day Off.

Clause 6 also provides the following definition of the phrase “Project Working Hours”:

Working hours averaging 65 hours per week structured in accordance with subclause (2) of clause 16. – Hours of Work of this Agreement and including the Ordinary Hours, RDO accrual hours and Regular Scheduled Overtime.

Clause 6 defines “Regular Scheduled Overtime” as meaning:

The overtime worked by Employees each day as part of the Project Working Hours.

The component parts of the Project Working Hours are thus:

    Ordinary Hours;

    RDO accrual hours; and

    Regular Scheduled Overtime.

Not included within the Project Working Hours are:

    Additional Overtime – distinctions between Regular Scheduled Overtime and Additional Overtime including the fact that an employee was required to work Regular Scheduled Overtime (cl 16(3)) but not Additional Overtime (cl 18(2)) and there being an absence of any requirement to work Regular Scheduled Overtime being subject to any requirement of “reasonableness” but there being such a requirement in the case of Additional Overtime; and

    Standby (cl 22).

21    Within section 2 to the Wheatstone Agreement, cl 9 sets out “Wage Rates”. That clause provides, in part, as follows:

9. WAGE RATES

WAGES AND CLASSIFICATION STRUCTURE

(1)    The classification structure in this Agreement is set out below. Indicative tasks undertaken by various levels within the classification structure is described in detail in Appendix 1 – Classification Structure of this Agreement.

Employees must be prepared to perform all tasks as required of their classification level or any lower level for which they have the required skills and competence provided that the intention of this provision is not to promote the de-skilling of classifications, but to recognise and make use of the full range of skills and competence held by the workforce.

Employees covered by this Agreement shall be classified at a level as specified by this clause and Appendix 1 based on their skills, qualifications, experience, competency and training provided that the Company has the need for such skill and competence. Each Employee’s classification level will be specified in their letter of appointment. Employees may be required to carry out work either individually or as part of a work group. Employees are responsible for carrying out work in a safe manner and for the quality of their work. Employees at all levels shall carry out all duties which are:

(a)    incidental or peripheral or ancillary to their main tasks or functions, and/or

(b)    within their skill, competence and training, and/or

(c)    routine functions.

An Employee, engaged in writing, for more than two hours, during one day on duties carrying a higher rate than the Employee’s Ordinary Classification, shall be paid the higher rate for the whole day. Otherwise the employee shall be paid the higher rate for the time so worked

The following are the minimum hourly wage rates payable to Employees for working Ordinary Hours under the classifications described. Civil/Structural classifications are described in Appendix 1 – Classification Structure of this Agreement:

…

That clause, it will be noted, provides for “the minimum hourly wage rates payable to Employees for working Ordinary Hours” and does so by reference to a table setting out the different classifications of employees and their level of employment, together with the hourly rates for different periods of time.

22    Clause 20, within section 3 of the Wheatstone Agreement, addresses “Overtime Payments”. Clause 20(1) provides as follows:

Subject to the provisions of this subclause, all work performed outside of the Ordinary Hours and time worked to accrue an RDO on any day, Monday to Friday, inclusive, shall be paid for at the rate of time and one half for the first two hours and double time thereafter.

23    Clause 36, within section 5, is headed “Payment of Wages”. Clause 36(2) which addresses “Time of Payment” provides that “Wages shall be paid weekly in arrears and no later than Thursday in each week”. Clause 36(3) and (4) deal with the provision of payslips and for payment on the preceding day in the event that “a holiday falls on the normal pay day…”.

24    From this brief overview of the Wheatstone Agreement it follows that:

    clause 16(1) sets out the “Ordinary Hours” for an employee, namely 36 “hours per week averaged over a defined work cycle”;

    clause 9 sets out “the minimum hourly wage rates payable to Employees for working Ordinary Hours”, namely the 36 “hours per week averaged over a defined work cycle” per cl 16(1);

    clause 16(2) provides that an employee “shall work standard Project Working Hours averaging sixty five (65) hours per week”; and

    clause 20 sets out the quantum of “payments’ to employees for “all work performed outside of the Ordinary Hours and time worked to accrue an RDO on any day…”, namely time and a half and for the first two hours and thereafter double time.

25    An employee is thus required to work 260 hours over a four week cycle, being the Project Working Hours which average at 65 hours per week: i.e., 65 x 4 = 260. That total of 260 hours comprises:

Clause 16(9) – the start & finish of project working hours

26    There was no issue in the present proceeding as to when an employee’s Project Working Hours started – cl 16(9) provides that those hours were to “start at the Employee’s prestart…”. The issue in need of resolution was when those hours finished.

27    In raising this issue, the two proposed Grounds of Appeal sought to challenge the primary Judge’s conclusion that:

    an employee’s Project Working Hours finished “at the inside of the Site Employee access gates” being a point immediately inside those gates (Ground 1); and

    Thiess was required to use such a place and time for the purposes of calculating an employee’s period of work relevant to paid entitlements (Ground 2).

Albeit expressed as separate Grounds of Appeal, each of the Grounds considerably overlapped necessarily because of the manner in which cl 16(9) – and the Agreement in its entirety – was to be construed and applied.

28    The first proposed Ground contended that the primary Judge had erred in reasoning that cl 16.9 laid down “the time that must be included when scheduling and computing working hours, and that it stipulated the start and finish of scheduled working hours”. Clause 16, the primary Judge separately concluded, was “concerned with matters that have consequences for payment” and that an employee’s “Project Working Hours [continue] up until when the employee reaches the inside of the access gate” and that an employee “is entitled to be paid up until that point”: [2019] FCA 1762 at [37] and [46]. The argument rejected by the primary Judge was that cl 16(9) was not a clause directed to remuneration but was simply a “scheduling” provision which enabled Thiess to schedule with certainty the hours to be worked.

29    These errors were said to be most clearly exposed in the following reasons as provided by the primary Judge:

[37]    It is the case that cl 16 included other provisions where the language of payment was used explicitly: see cl 16(4), cl 16(11) and cl 16(13). However, those provisions do not deal only with the time that must be included when scheduling and computing working hours. They are dealing with the effect upon payment of events that mean there is no work to do when hours have been scheduled or there is work to do when breaks should have been scheduled. Further, what those provisions do manifest is an intention that cl 16 is concerned with matters that have consequences for payment. However, there is no consistency in the language used. They do not indicate a structure that forecloses the possibility that cl 16(9) is requiring certain periods of time to be included in the working hours for which payment must be made.

…

[46]    By the terms of cl 16, Thiess is required to schedule Project Working Hours averaging 65 hours per week and employees are required to work those hours. The hours were to be scheduled with the requisite breaks and as three equal work periods. The terms of cl 16(9) must be read within that context. The subject matter of the provision identifies the start of the scheduled hours that must be offered by Thiess and then worked by the employees with the requisite breaks and periods. It also identifies what will be scheduled as the finish time. A schedule which does not begin with the actual time of prestart and end with the actual time that an employee is at the inside of the access gates does not conform to the requirements concerning the Project Working Hours. What occurs between those points is addressed by other provisions. An employee must present at prestart and stay until the time the employee reaches the inside of the access gates and in between must work and is entitled to take the breaks provided for by cl 16. Likewise Thiess must arrange the work on that basis. By reason that the end of the Project Working Hours continues up until when the employee reaches the inside of the access gate, the employee is entitled to be paid up until that point. If there are hours in between when the employee refuses to work (other than when on a break) then for that period there is no entitlement to pay.

30    Expressed differently, in its Outline of Submissions Thiess maintains that the “[e]mployees are paid for actually working Ordinary Hours, RDO accrual hours, Regular Scheduled Overtime, and Additional Overtime”, and that the “performance of work is the trigger for the entitlement to be paid”. Employees, it is further submitted, “are not paid for any hours that are scheduled or computed in which work is not actually performed, because scheduling and computation are not the trigger for the entitlement to be paid”.

31    The Thiess position is simple: unless an employee is actually performing work, they are not entitled to remuneration. Clause 16(9) on this approach is not the source of any entitlement to be paid. The entitlement to be paid finishes when the employee arrives at the crib hut. The time taken thereafter to reach the security gate, namely a period of time when no actual work is being undertaken but when employees may (for example) be talking among themselves on the bus, or sleeping, or occupying their time with mobile phones and the like, does not attract any entitlement to remuneration. To determine the manner in which the 260 Project Working Hours are to be calculated, there needs to be, according to Thiess, certainty as to the manner in which it can calculate Ordinary Working Hours, Rostered Days Off and Regular Scheduled Overtime. The uncertainty that may be generated by an employee not taking (for example) the first available bus after they arrive at the crib hut to exit the site denies the certainty needed to schedule the hours when employees are actually undertaking physical work.

32    A considerable difficulty confronting Thiess are the terms of cl 16(9). That clause operates according to its terms. It simply provides when “[a]n [e]mployees’ Project Working Hours shall start … and finish …”. They start “at the Employee’s prestart and finish at the inside of the Site Employee access gates”. The “start … and finish” of the 260 hours which constitute the Project Working Hours is thus fixed by cl 16(9). And the rate at which an employee is paid for the individual components of those Project Working Hours is, in the case of:

    Ordinary Hours, fixed by cl 9; and

    RDO accrual hours and Regular Scheduled Overtime, fixed by cl 20.

In the absence of any real reason to depart from such a simple approach, an employee’s entitlement to be paid thus “finishes” at that point of time when the employee reaches “the inside of the Site Employee access gates” – and not when the employee arrives at the crib hut some 20 minutes or so prior to that time. That approximate 20 minutes to get from the gate to that actual place at which an employee may exit the site is thus included within the hours which attract payment.

33    Nor is there anything wrong, as a matter of general principle, with reaching such a conclusion. The Wheatstone Agreement is expressed to “apply to the on-site construction work” (cl 3(1)), namely the Agreement sets forth the obligations of employees and their entitlement to be paid whilst “on site”. Left unexplained, with respect, was why such emphasis should be given to the need for “certainty” on the part of Thiess as to how it was to “schedule” or regulate “Project Working Hours”, such that that need overrode the comparatively simple terms of cl 16(9). Also unexplained was why any need for “certainty” could not be satisfactorily addressed by Thiess taking into account the time taken for an employee to exit the crib hut and arrive at the security or exit gate. On the Thiess approach, an employee’s long working hours were only to be increased by – but employees were not to be remunerated for – the 20 minutes or so taken each day to reach the exit gate.

34    Mr Sheehan, it may be noted, was a crane operator working on the construction of a breakwater and materials off-loading facility. There were, in addition, some other 150 employees in the group he represented – those employees, presumably, being variously employed in the diverse and extensive construction contracts outlined by Fair Work Australia: [2012] FWAA 7466 at [14]. All workers were employed in a very remote part of Western Australia and all were totally dependent on Thiess to provide transport, not only from their accommodation to the construction site, but also (and more relevantly) transport to and from the crib hut to the perimeter gate at the start and end of each day.

35    There is nothing, with respect, in the balance of the Wheatstone Agreement itself which precludes such a simple method of calculating when an employee’s entitlement to be paid starts and finishes. Clause 3(2)(b), for example, and the fact that the Wheatstone Agreement is expressed as not applying to the “transport of personnel to and from the Project” – and not “to and from the Project Site”, the boundaries of that Project Site including the access gates – provides insufficient reason to otherwise read down the wide terms in which cl 3(1) is otherwise expressed.

36    Specifically rejected are two further submissions advanced on behalf of Thiess, namely that:

    clause 16(9) simply “confine[s] Project Working Hours to the time when employees are physically on the site, and thereby [excludes] the possibility that time spent travelling to and from the access gates to the accommodation village might count towards making up Project Working Hours – that is, scheduled working time”; and

    clause 16(9) “says nothing about, and has nothing [to] do with, employees’ entitlement to remuneration”.

The former submission mischievously refers to a period of time that is not the subject of dispute, namely the time taken to travel from the accommodation village to the access gates. Clause 16(9), it is correct to say, says nothing about this period of time. But cl 16(9) says everything about Project Working Hours finishing by reference to the time when an employee arrives at “the inside of the Site Employee access gates” – being a time including the time taken to get from the crib hut to those gates. And, although it is correct to say that cl 16(9) says nothing about an employee’s rate of remuneration – that hourly rate being fixed by cll 9 and 20 – cl 16(9) says everything about the calculation of those hours which attract those rates of pay.

37    With a construction site the size of that now in issue, there is – with respect – nothing surprising in a conclusion that an employee should be paid for the time taken to get to an access gate at the end of the day.

38    The remaining terms of the Wheatstone Agreement provide no foundation for drawing any contrary implication, nor any reason to read down the unequivocal terms in which cl 16 (and cl 16(9) in particular) is expressed.

39    Contrary to the submission advanced on behalf of Thiess, its construction of cl 16 as simply a “scheduling” provision is not “confirmed” by (for example) cl 34(13). That sub-clause provides as follows:

Employees shall have no right to be paid for any time that they are not ready, willing and available to follow lawful directions of the Company or to carry out all duties that they are capable of performing.

Not surprisingly, an employee (inter alia) “must be prepared to perform all tasks as required of their classification…” (cl 9(1)); employees who are not willing to undertake the tasks for which they are employed cannot be expected to be nevertheless entitled to payment. Clause 34(13) thus says nothing as to the manner in which the actual Project Working Hours are to be calculated and any entitlement to be paid for those hours where the employee is “ready, willing and available” to carry out their contractual obligations.

40    Nor can any implication be drawn from such other provisions relied upon by Thiess as indicating those “explicit and confined circumstances” in which an employee is entitled “to be paid even if they do not perform work”. Three of those provisions relied upon by Thiess are the following:

20. OVERTIME PAYMENTS

…

OVERTIME CRIB BREAKS

…

(9)    The crib break shall be taken at the completion of 10 working hours and shall be paid for at Ordinary Time Wages.

…

OVERTIME BREAKS – SATURDAY, SUNDAY AND PUBLIC HOLIDAYS

…

(13)    If the overtime on a Saturday, Sunday or Public Holiday continues beyond six (6) hours and up to ten (10) hours an Employee shall be entitled to a half-hour crib break which shall be paid for at Ordinary Time Wages.

…

21. RECALLS

(1)    When an Employee is recalled to work after leaving the job:

(a)    The Employee shall be paid for at least three (3) hours at overtime rates;

(b)    Time reasonably spent in getting to and from work shall be counted as time worked; and

(c)    The Company may require the recalled Employee to carry out additional duties beyond the initial reason for the recall.

Clause 20(9) and (13), it must be recognised, are self-evidently provisions which contemplate an entitlement to payment even when employees are not actually “perform[ing] all tasks required of their classification…”: (cl 9(1)). Each is a provision which confers a contractual entitlement – being an entitlement to a “crib break” for which payment is to be made. But no implication can be drawn from these provisions such that the employee who is travelling from a crib hut to an access gate is also not entitled to have that time included within the computation of Project Working Hours. Clause 20(9) and (13), with respect, provide too uncertain a basis from which any such implication can be drawn which limits the otherwise unequivocal terms in which cl 16(9) is expressed. Nor can any such implication be drawn from cl 21(1). That is a provision not directed to the amount of time taken to get from arrival on site to the physical location at which work is to be undertaken, but a provision directed to “getting to and from work”. In the absence of such an express provision, it would at least remain very uncertain whether an employee could claim that part of the time taken to get from a place of accommodation to the actual construction site. Clause 21(1), it may be noted, permits of some uncertainty as to when an employee “get[s] to … work”, be that at arrival on site or arrival at that place on site where physical work is undertaken. However that clause be construed, it is again a provision conferring a contractual entitlement.

41    The primary Judge was correct in rejecting like arguments. In particular, no error is exposed in paras [37] and [46] of his Honour’s reasons for decision.

Clause 16(9) – the identification of what will qualify as payment for work

42    The second contention advanced by Thiess was that the primary Judge erred in reasoning that cl 16.9 “was in part concerned with ‘identifying what will qualify as payment for work’, seemingly because the primary judge linked scheduled working hours with employees’ entitlement to remuneration, and found that the latter triggered the former”.

43    This error was said to emerge from the following passage in the reasons as provided by the primary Judge:

[11]    Therefore, it can be seen that cl 16 was only concerned with the scheduling of work and with identifying what will qualify for payment as work.

The error was said to emerge from that part of this passage which identified cl 16 as “in part concerned with ‘identifying what will qualify as payment for work’”. Reservation may be expressed with an unqualified conclusion that “cl 16 was only concerned with the scheduling of work…”. That clause, it has been concluded, serves a purpose in addition to that of simply “scheduling”. But, for obvious reasons, no separate challenge is made by Thiess to that part of para [11]; and, more importantly, that part of para [11] is not unqualified.

44    Given the conclusion, however, that cl 16(9) is not a mere “scheduling” provision but a provision which assumes relevance by fixing the point of time at which an employee’s Project Working Hours are to “finish”, it necessarily follows that cl 16(9) also assumes relevance as attracting remuneration for the payment of those hours.

45    The clear terms of cl 16(9), it has been concluded, characterise that provision as going beyond a mere “scheduling” provision and extending to a provision which fixes when Project Working Hours are to “finish”. The contrary construction advanced on behalf of Thiess has been rejected.

46    The underlying proposition consistently being advanced by Thiess is that an employee is not entitled to be paid unless they are actually undertaking physical work. Leaving aside entitlements to be paid allowances, Thiess contends that the remaining provisions of the Wheatstone Agreement support an implication that remuneration is only to be paid for work performed. Clause 16(2), for example, provides that “Employees shall work”; similarly cl 20 dealing with “Overtime Payments” also refers to for payment for “work performed…”. As put in written submissions to the primary Judge, the entitlement to payment of wages “is always dependent on employees either performing work or being deemed to have performed work”. Another provision relied upon by Thiess was cl 34(13) providing that an employee was required to remain “ready, willing and available … to carry out all duties….”. Mr Sheehan, it was posited, was not “ready, willing and available” after he got on the bus and was being taken to the exit gate at the end of each working day.

47    The answer to these submissions advanced both before the primary Judge and this Court on appeal remains the same: cl 16(9) expressly provides when Project Working Hours are to “finish” and those hours attract the entitlement to payment of wages. Whatever may be the position at common law as to it being “the service that earns the remuneration” (cf. Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465 per Dixon J, see also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427 to 428 per Brennan CJ, Dawson and Toohey JJ), the provisions of the Wheatstone Agreement in the present case provide for the payment of wages for the Project Working Hours in respect to which an employee is employed.

CONCLUSIONS

48    No error has been made out in respect to the manner in which the primary Judge answered the questions posed for resolution.

49    It is thus concluded that the appropriate orders to be made are as follows:

(1)    The application for leave to appeal be granted.

(2)    The appeal be dismissed.

(3)    There be no order as to costs.

Associate:    

Dated:    16 November 2020

REASONS FOR JUDGMENT

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.

Associate:

Dated:    16 November 2020