Federal Court of Australia
Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51
ORDERS
HOT WOK FOOD MAKERS PTY LTD (ACN 058 494 447) Applicant | ||
AND: | UNITED WORKERS UNION (ABN 52 728 088 684) First Respondent FAIR WORK COMMISSION Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s Originating Application be dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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THE COURT:
1 The applicant has applied for relief under s 39B of the Judiciary Act 1901 (Cth) in respect of two decisions of the Full Bench of the Fair Work Commission (the Commission).
2 The matter falls to be heard and determined by the Full Court pursuant to a direction made under s 20(1A) of the Federal Court of Australia Act 1976 (Cth).
3 Before the Full Bench of the Commission, the first respondent (the Union) sought an extension of time and permission to appeal against a decision of a Deputy President of the Commission to approve an enterprise agreement.
4 After reserving its decision, the Full Bench developed certain concerns about the applicant’s conduct in making the enterprise agreement. The Full Bench requested that the applicant provide further information and, when the requested information was not forthcoming, issued a statement expressing its concerns. The applicant then applied to the Full Bench for recusal of its members on the basis of apprehended bias, but that application was refused. The Full Bench subsequently ordered, on its own initiative, that the applicant produce particular documents and that five persons associated with the applicant attend the Commission to give evidence.
5 The Full Bench made a decision allowing the extension of time, granting permission to appeal and upholding the appeal on two of the grounds raised by the Union. The Full Bench later made a further decision upholding another two grounds of appeal, including a ground that reflected one of the concerns raised by the Full Bench.
6 The applicant alleges that the Full Bench’s conduct of the proceeding gave rise to an apprehension of bias. The applicant seeks orders quashing the Full Bench’s decisions and other relief.
7 It is necessary to discuss the procedural history of the matter in some detail to give context to the parties’ submissions.
The proceeding before the Full Bench
8 The applicant is a company in a group of companies known as the “Mantle Group”.
9 On 8 July 2021, the applicant lodged with the Commission an application for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (the Agreement). In a statutory declaration accompanying the application, the applicant’s Chief Human Resources Manager, Darren Latham, stated that five employees were covered by the Agreement at the time of the vote, four of them had cast a valid vote and all four had voted to approve the Agreement.
10 On 28 July 2021, a Deputy President of the Commission approved the Agreement under s 186 of the Fair Work Act 2009 (Cth) (the FW Act).
11 On 31 May 2022, the Union filed an application seeking permission to appeal under s 604 of the FW Act against the Deputy President’s decision. As the application was lodged approximately 10 months after the decision was made, an extension of time to appeal was also sought.
12 The Union proposed to bring its appeal on grounds that the Deputy President was, “not able to be satisfied” that:
(1) the Agreement passed the “better off overall test” (the BOOT test);
(2) the Agreement was genuinely agreed to by employees to be covered by the Agreement;
(3) the group of employees covered by the Agreement was fairly chosen;
(4) the undertakings given by the applicant could remedy its failures to comply with the requirements of the FW Act.
13 On 21 July 2022, the Full Bench reserved its decision upon the application for an extension of time, permission to appeal and the proposed appeal. The Full Bench reserved its decision.
The Full Bench’s email of 1 August 2022
14 On 1 August 2022, the following email was sent to the parties on behalf of the Full Bench:
In the event that permission to appeal is granted and the appeal is upheld, it will be necessary for the application made by the respondent to this appeal for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (Hot Wok Agreement) to be reconsidered, having regard to all the approval criteria in ss 186 and 197 [sic, 187] of the Fair Work Act 2009 (FW Act). The Full Bench would prefer to deal with all potential issues arising in this matter in a single decision. In this respect, the respondent is requested to provide further information as follows:
1. The respondent was requested at the hearing of this matter to provide advice as to whether, in the event that the Hot Wok Agreement was found not to pass the better off overall test, approval of the Hot Wok Agreement was nonetheless sought under s 189 of the FW Act (as indicated in the Form F17 declaration which accompanied the application for approval of the Hot Wok Agreement). Such advice has not yet been provided.
2. The Form F17 declaration states at [7] that the Staff Services Pty Ltd Certified Agreement (Staff Services Agreement) currently (i.e. at the date of the declaration) applied to employees covered by the Hot Wok Agreement. As far as the Full Bench is aware, Hot Wok Food Makers Pty Ltd and its employees were never covered by the Staff Services Agreement. Accordingly, the respondent is requested to identify the corporate entity which employed each of the five employees who made the Hot Wok Agreement in the period from 2 June 2021 (when the notice of employee representational rights was issued) to 25 June 2021 (when the agreement was made).
3. Two of the employees who signed the Hot Wok Agreement were Ms Suet Ying Lu [sic, “Wu”], who is referred to elsewhere in the materials as Carol Wu with the email address Carol.Wu@mantlegroup.com, and Ms Shanshan Li, who is also referred to in the materials as Shirley Li with the email address Shirley.Li@mantlegroup.com. In material before the Commission in two other matters (AG2020/4180 and C2021/17) which involved an entity within Mantle Group Hospitality (of which Hot Wok Food Makers Pty Ltd forms a part):
a. Ms Wu identified herself in a witness statement dated 16 June 2021 as the “Venue Manager” for the Milano restaurant, with responsibility for managing the day-to-day operations of the venue, and the recruitment, management, rostering, disciplining and termination of staff; and
b. In an email dated 11 May 2021, Ms Li was identified by Mr Darren Latham, Chief HR Officer for Mantle Group Hospitality, as working with him as “the HR Co-ordinator, among other roles in the business”. Other material also identified her as having held the roles of Payroll Manager and International Business Manager.
The respondent is requested to confirm the positions held by Ms Wu and Ms Li in the period 2 June 2021 to 25 June 2021, and to explain how it is said that they fell within the coverage of the Hot Wok Agreement at the time it was made, including what classification in the Hot Wok Agreement (if any) is said to have applied to them. The respondent is requested to provide the same information concerning the other three employees who made the Hot Wok Agreement which, on the materials before the Full Bench, include Mr Jack Nicholson and Mr Ashmit Subedi.
The respondent is requested to provide the information requested in (2) and (3) above by way of a statutory declaration made by a person with the requisite authority and knowledge.
15 The applicant did not provide any information in response to the request. Instead, the applicant’s lawyers sent an email to the Commission on 8 August 2022 stating:
In the event that the extension of time and permission to appeal is granted and the appeal is upheld then we are instructed that Hot Wok intends to withdraw the application pursuant to Section 588.
16 On 9 August 2022, the Full Bench issued a statement (the Statement) expressing certain “concerns” it held:
[6] On the basis of matters (2) and (3) in the Commission’s email of 1 August 2022, we hold a concern that the Hot Wok Agreement may not have been made in accordance with s 182(1) of the FW Act, in that:
(1) some or all of the employees who purportedly voted to approve it may not have been employed by the respondent, being the employer under the agreement, at the time the agreement was purportedly made; and
(2) some or all of the employees who purportedly voted to approve the agreement would not be covered by the agreement because (whether or not they were employed by the respondent) their jobs did not fall within the classifications in the agreement.
[7] Consequently, we are concerned that:
(A) the Hot Wok Agreement may not have been genuinely agreed in accordance with the requirement in s 188(1)(b) of the FW Act and should therefore not have been approved by the Deputy President; and
(B) the Form F17 declaration made by Mr Darren Latham on 8 July 2021 in support of the application for approval of the Hot Wok Agreement may have contained a number of incorrect statements of fact, with the possibility that this was intentional.
[8] Our concerns in this respect have been amplified by the fact that, having been requested to provide information to address the identified matters of concern by 8 August 2022, the respondent extraordinarily and contumaciously failed to do so.
[9] In our email of 1 August 2022, we indicated that the matters of concern arose in the context of the need to redetermine the application for approval of the Hot Wok Agreement in the event that the UWU’s appeal was upheld. However, we consider that the matters are equally relevant to the antecedent issues of whether an extension of time to file the appeal should be allowed, whether permission to appeal should be granted and whether the appeal should be upheld. The respondent’s foreshadowed intention to “withdraw” the application for approval of the Hot Wok Agreement should the appeal be upheld does not, therefore, dispose of our concerns for the purpose of this proceeding.
[10] It has also come to our attention that, on 24 May 2021 in matter AG2021/5292, the respondent filed an earlier application for approval of an agreement entitled “Hot Wok Food Makers Pty Ltd Workplace Agreement 2021”. This agreement, which was purportedly made on 12 May 2021, appears to be in terms that are relevantly identical to the Hot Wok Agreement, and was likewise signed by Mr Latham on behalf of the respondent, and by Ms Shirley Li (and witnessed by Ms Suet Ying Wu) on behalf of employees of the respondent. This application was, without any explanation, discontinued on 2 June 2021 - the same day as the respondent is said to have issued a notice of employee representational rights in respect of bargaining for the Hot Wok Agreement. These matters have given rise to a further concern on our part that there may be reasonable grounds for believing that the Hot Wok Agreement was not genuinely agreed to by employees and, accordingly, that the agreement was not genuinely agreed in accordance with the requirement in s 188(1)(c) of the FW Act.
[11] In light of the respondent’s failure to comply with the request for further information contained in our email of 1 August 2022, our provisional view is that we should:
(1) make an order under s 590(2)(a) and (d) of the FW Act requiring the following persons to attend a further hearing in the Commission for the purpose of giving evidence:
Mr Darren Latham
Ms Shanshan (Shirley) Li
Ms Suet Ying (Carol) Wu
Mr Jack Nicholson
Mr Ashmit Subedi;
(2) make an order under s 590(2)(c) of the FW Act for the respondent, and any relevant related entity of the respondent, to produce documents evidencing the employment (including the job responsibilities and duties) of Ms Shanshan (Shirley) Li, Ms Suet Ying (Carol) Wu, Mr Jack Nicholson and Mr Ashmit Subedi in the period 14 May 2021 to 28 July 2021.
[12] We propose to give the parties an opportunity to respond to the provisional view above. For this purpose, we will list the matter for a short hearing (not exceeding one hour) on Friday 12 August 2022 at 1:00pm (AEST). If both parties advise the chambers of the presiding member beforehand that they do not oppose the provisional view, the hearing will be vacated and the foreshadowed orders will be issued.
17 In written submissions dated 12 August 2022, the applicant opposed the making of the provisional orders and also sought that the members of the Full Bench disqualify themselves from hearing the matter on the basis of apprehended bias. The matters giving rise to an apprehension of bias were contended to be:
(1) the assertion in the Statement that the applicant had acted, “extraordinarily and contumaciously”;
(2) the concern expressed in the Statement that the conduct of Mr Latham may have involved him intentionally making a false statement;
(3) that the issues identified in the Statement as to the conduct of the applicant did not arise from the grounds of appeal; and
(4) that the Full Bench had determined the relevance of the material sought and the request for information without first having heard from the applicant.
18 On 18 August 2022, the Full Bench rejected the recusal application. As to the first ground, the Full Bench indicated that since the applicant had not complied with the request for additional information and its answer was non-responsive, it was appropriate to describe the answer as “extraordinary” (in the sense of being unusual) and “contumacious” (that is, intentionally non-compliant). The Full Bench considered that even if the applicant’s submission that the language was not appropriate were accepted, a fair-minded lay observer would not apprehend that this might cause the Full Bench to decide the case other than impartially, as the issues to be determined on the appeal were entirely separate.
19 As to the second ground, the Full Bench indicated that it had expressed no finding or concluded view about Mr Latham’s credit, but in effect gave notice of potential adverse findings should its identified concerns not be satisfactorily addressed. The Full Bench also expressed its view that an apprehension that it may decide the credit issue adversely to the applicant did not constitute an apprehension that it might not decide the appeal impartially.
20 As to the third ground, the Full Bench stated that a fair-minded lay observer could not form a reasonable apprehension that it might decide this appeal other than impartially merely because it undertook inquiries in the Commission’s own files relevant to the question of whether the Agreement was genuinely agreed in accordance with its powers under the FW Act. That was said to be particularly so when, having formed concerns arising from the information so obtained, it had advised the applicant of these concerns and invited it to respond by way of the provision of further information.
21 As to the fourth ground, the Full Bench stated that the statements in the 1 August 2022 email were not statements of any concluded view about the import of the matters identified, and a fair-minded lay observer would understand that the applicant had the opportunity to dissuade the Full Bench from making the provisional orders.
22 The Full Bench went on to determine that if the applicant did not respond by way of statutory declaration to the Full Bench’s concerns expressed in the email of 1 August 2022, the provisional orders that it had identified in its Statement would be made.
23 On 25 August 2022, the Full Bench made the foreshadowed orders. It ordered that four persons who had been identified as the employees who voted in favour of the Agreement and Mr Latham attend before the Commission at a hearing on 9 September 2022 and that the applicant produce certain documents.
The injunction and adjournment applications
24 On 30 August 2022, the applicant lodged proceedings in the Federal Court seeking injunctive relief on the ground that the Full Bench had fallen into jurisdictional error by taking steps to formulate and inquire into the matter other than in relation to the grounds of appeal raised by the Union.
25 On 31 August 2022, the applicant, relying on the proceedings in the Federal Court, applied to the Full Bench for an adjournment of the hearing listed for 9 September 2022. In a decision given on 2 September 2022, the Full Bench dismissed the adjournment application.
26 On 5 September 2022, the applicant applied to the Federal Court for an interlocutory injunction restraining the Full Bench from proceeding with any further hearing in the matter. On 7 September 2022, the Federal Court adjourned the application to a date to be fixed.
27 On the same day, the applicant, again applied to the Full Bench for an adjournment of the appeal proceeding in its entirety pending the determination of its application to the Federal Court. The adjournment application was heard on 8 September 2022. The Full Bench granted an adjournment of the hearing listed for 9 September 2022 and excused Mr Latham and the employees who had voted upon the Agreement (Ms Wu, Ms Li, Mr Nicholson and Mr Subedi) from attendance at the Commission until further order. However, the Full Bench considered that the application to the Federal Court did not create any impediment to the Full Bench determining those aspects of the appeal arising directly from the Union’s notice of appeal as filed, which had been the subject of full argument at the hearing on 21 July 2022.
28 On 13 September 2022, the Union filed an application for permission to amend its notice of appeal to add a further ground. The additional ground asserted that the Agreement could not be approved because it had not been made pursuant to s 182(1) and, further or alternatively, had not been genuinely agreed to pursuant to s 186(2)(a) of the FW Act. The applicant asserted that at least some of the employees who voted to approve the Agreement were not entitled to vote because their jobs did not fall within the classifications in the Agreement and they were not employed by the applicant. This ground reflected the concerns that had initially been raised by the Full Bench. The Union also sought orders that the applicant produce documents relating to the employment of the four voting employees and other documents.
29 On 29 September 2022, by consent, the Federal Court vacated its orders of 21 September 2022 which varied its orders of 7 September 2022 in respect of timeframes for filing and serving submissions. Apparently this was done to allow the Full Bench time to make a decision in relation to the Union’s amendment application and for the parties to consider the potential impact of that decision on the Federal Court application.
30 The Full Bench determined to deal with the questions of an extension of time to file its appeal, permission to appeal, the Union’s first ground (concerning the BOOT test) and the related fourth ground (concerning undertakings given to the Commission), and the amendment application and associated applications for orders for production. The Tribunal did so in a decision made on 21 October 2022.
The 21 October 2022 decision of the Full Bench
31 The Full Bench allowed the amendment of the notice of appeal, granted an extension of time to appeal, granted permission to appeal and upheld the appeal on the Union’s first and fourth grounds.
32 In its reasons, the Full Bench said that it was, “necessary to make findings concerning the broader context of this matter in order to deal properly with the issues in contest”. The basic features of that broader context were said to include that:
Mantle Group Hospitality has, over a long period of time, used the legislative mechanisms for enterprises bargaining in the FW Act and in the predecessor Workplace Relations Act 1996 (WR Act) to make agreements which remove or reduce the incidents of penalty rates which would otherwise be payable to its hospitality workers under the awards that cover its business.
33 The Full Bench stated that the facts which established the context were derived from a number of sources including an earlier decision of the Commission in another matter, material that was before the Commissioner in that matter and previous decisions of the Commission concerning agreements applying to entities within the Mantle Group.
34 The Full Bench embarked on a historic analysis of proceedings about agreements involving entities within the Mantle Group. The analysis was principally concerned with the history of an agreement described as the “Staff Services Agreement”. That agreement was first entered into in 1999 and continued in operation under various transitional provisions and as a result of orders made by the Commission, then known as, “Fair Work Australia”. The analysis detailed various proceedings brought by employees seeking the termination of that agreement; an application by the applicant for approval of another agreement which the Full Bench said had been discontinued by the applicant “without explanation”; applications by the applicant that would enable other employees within the Mantle Group to be covered by the Agreement (the subject of the present proceedings) rather than the Staff Services Agreement; and proceedings that ultimately resulted in the termination of the Staff Services Agreement without the applicant’s opposition. The Full Bench found that the evidence in those latter proceedings indicated that no penalty rates were paid for overtime, weekends or public holidays under the Staff Services Agreement. It referred to the support of some employees of the Mantle Group for the termination of that agreement and a complaint of one employee that the employees had not received an email directed by the Commission to be sent seeking their views on the termination of the agreement.
35 The Full Bench then dealt with the history of the proceedings and explained why it had sought further information from the applicant. It stated that in the course of conducting research for its decision, it had discovered matters relevant to the basis upon which Mr Latham’s statutory declaration said the Agreement had been made. The material before the Deputy President indicated that the employees who voted to approve the Agreement included Ms Wu and Ms Li. In proceedings before the Commission against a company in the Mantle Group in 2021, Ms Wu had been described as a “venue manager” and Ms Li as a “HR Co-ordinator”, and there was no indication that either was employed by the applicant. The Full Bench also stated that the nature of Ms Wu’s and Ms Li’s positions had raised questions as to whether they were covered by the Agreement and entitled to vote upon the Agreement, whether their agreement was genuine and whether the coverage was fairly chosen. The Full Bench stated that, given that Mr Latham had averred in a statutory declaration that the Agreement covered all the employees of the applicant and that there had been five employees covered by the Agreement, the veracity of that declaration was called into question.
36 The Full Bench considered that these matters related to the Union’s second and third grounds, although it acknowledged that they did not strictly arise from the way in which those grounds were particularised in the notice of appeal or the Union’s submissions. Nevertheless, the Full Bench had considered that the FW Act permitted it to seek the further information it had requested on 1 August 2022. The Full Bench stated that the applicant’s response (that if the appeal were upheld, the applicant intended to withdraw the application) was not fully responsive to the Full Bench’s concerns, leading it to issue the Statement.
37 The Full Bench stated that it would proceed to decide whether the Union should be granted an extension of time to file its appeal; whether permission to appeal should be granted; the Union’s first ground (concerning the BOOT test); and the related fourth appeal ground (concerning the undertakings given); and the amendment application (including the associated applications for orders for production).
38 The Full Bench indicated that it would not proceed to determine the Union’s second appeal ground (concerning whether the Agreement was genuinely agreed), or the third appeal ground (concerning the fairly chosen approval requirement).
39 In the course of deciding to allow an extension of time and grant permission to appeal, the Full Bench described the Union’s first and fourth grounds as having “overwhelming merit”. The Full Bench considered that there were public interest considerations at stake, concluding:
The background history of this matter discloses a decades-long history of restaurant and hospitality employees of Mantle Group Hospitality being deprived of penalty rates for overtime, evening, weekend and public holiday work through the use of enterprise bargaining mechanisms. On one view the Hot Wok Agreement represents an attempted continuation of this notwithstanding the prospect of the termination of the Staff Services Agreement entered into in 1999. The events which have occurred since the approval of the Hot Wok Agreement…tends to confirm this. The appeal therefore calls into question whether this situation can be allowed to continue. Also, as we have explained, this appeal gives rise to extremely serious issues of concern as to how the Hot Wok agreement was (purportedly) made. Accordingly, we allow the UWU an extension of time until 31 May 2022 to lodge its appeal.
40 The Full Bench then upheld grounds one and four. In doing so, the Full Bench held that the agreement was incapable of passing the BOOT test. The Full Bench upheld the fourth ground on the basis that the undertakings accepted by the Deputy President did not address the issue of non-compliance of several clauses with the BOOT test.
41 The Full Bench granted the amendment application made by the Union. In doing so, it rejected a further application made by the applicant for recusal of the members of the Full Bench on the basis that, in effect, they had already determined those applications. The Full Bench said that, contrary to the applicant’s submissions, it had not expressed any view concerning the amendment of the Union’s notice of appeal. The Full Bench added that the fact that it may have expressed a view about the relevance and significance of the matters underlying the proposed additional ground of appeal did not relate to any issue actually in contention in relation to the amendment application. The applicant had not contended that the proposed additional ground of appeal did not raise a matter of relevance and significance, nor that it would not, if substantiated, provide a proper basis for upholding the appeal. The Full Bench also said that the applicant had not explained why anything it had said might reasonably be perceived as causing the Full Bench to determine the amendment application other than impartially.
42 The Full Bench rejected the Union's application for production of documents on the basis that it lacked utility in light of the previous orders made and was otherwise misconceived. The Full Bench proposed to conduct a directions hearing to establish an expedited program for the hearing and determination of the grounds of appeal not determined in this decision (including the new ground of appeal). The parties were invited at the directions hearing to advance any submissions they wished to make as to why the Full Bench should not re-issue the orders issued on 25 August 2022 requiring Mr Latham, Ms Wu, Ms Li, Mr Nicholson and Mr Subedi to attend the Commission for the purpose of giving evidence.
43 The Full Bench made the following orders:
(1) Time is extended for the UWU to file its appeal in this matter up to and including 31 May 2022.
(2) Permission to appeal is granted.
(3) Appeal grounds 1 and 4 are upheld.
(4) The UWU is granted access to the Commission’s files in matters AG2021/9127, AG2021/5335 and AG2016/7753.
(5) The appeal is listed for a further directions hearing at 12:30 pm (AEDT) /11:30 am (AEST) on Friday, 28 October 2022.
44 On 28 October 2022, the applicant submitted that further hearing of the appeal was unnecessary because on the findings of the Full Bench made on 21 October 2022, the Agreement was incapable of approval. This submission was not accepted. The Vice President observed that, “the outstanding issues in the appeal raise issues of real concern and perhaps public interest”.
45 Another hearing was listed for 25 November 2022 and orders were made for Mr Latham and the four employees to attend the Commission on that day.
46 On 15 November 2022, Logan J dismissed the applicant’s application for interim injunctive relief. In doing so, his Honour acknowledged that there may be merit in a claim of apprehended bias, but that it did not of itself follow that the Full Bench would do other than what it had done at each stage of the proceeding, which was to offer an opportunity to the parties to be heard and only after hearing, or at least offering the opportunity for hearing, reaching a conclusion. His Honour held that there was not a serious question to be tried whilst acknowledging that a different view might be formed at the final hearing of the matter.
The 12 January 2023 decision of the Full Bench
47 The hearing in respect of the Union’s additional ground of appeal proceeded on 25 November 2022. On 12 January 2023, the Full Bench made its decision concerning that ground. The additional ground was to the effect that the Agreement could not be approved because it had not been made pursuant to s 182(1) of the FW Act or had not been genuinely agreed pursuant to s 186(2)(a) because the persons who voted to approve the Agreement were not in fact employed by the applicant and their jobs did not fall within the classifications in the Agreement.
48 The Full Bench accepted that on 16 March 2021, the day before the notice of employee representation rights was sent in respect of the first version of the Agreement, Mr Latham had sent a letter to each of the four employees who voted offering to transfer their employment to the applicant and that the offers had subsequently been accepted. The Full Bench rejected the argument that the four persons who voted to approve the Agreement were not employees of the applicant when the Agreement was made.
49 In the course of determining whether the employees who voted to approve the Agreement were covered by the Agreement, the Full Bench made findings adverse to the credibility of the evidence of Ms Li, Mr Nicholson and Mr Subedi, but described Ms Wu’s evidence as a “possible exception”. The Full Bench went so far as to find that parts of the declaration signed by Mr Latham for the purpose of the approval by the Commission of the Agreement were knowingly false and supported by fabricated documents. The Full Bench also found that Mr Latham had been involved in the deliberate misleading of the Commission in a separate matter. The Full Bench considered that the representation he made in his declaration that the four employees who voted to approve the Agreement were covered by that Agreement could not be accepted as accurate and truthful in the absence of corroboration. The Full Bench found that none of the employees who voted to approve the Agreement were covered by it and, consequently, the Agreement was not made in accordance with s 182(1) of the FW Act, and the element of genuine agreement in s 188(1)(b) was incapable of satisfaction.
50 The Full Bench accordingly upheld the ground of appeal that had been added by the amendment permitted by the Full Bench on 21 October 2022, which in substance had been raised by the Full Bench.
51 The second ground of appeal was also upheld by the Commission because of what it described as, “a deliberate manipulation of the statutory process for making enterprise agreements” involving the selection of four relatively high-paid managers to make the Agreement which was subsequently applied to a host of employees who were not given the opportunity to bargain or vote and was thereby entirely lacking in authenticity and moral authority.
52 The Full Bench requested that the General Manager of the Commission consider whether Mr Latham’s conduct in respect of his declaration should be the subject of a referral to the Australian Federal Police.
53 The Full Bench made the following further orders:
(1) Appeal grounds 2 and 5 are upheld.
(2) The decision of Deputy President Mansini of 28 July 2021 ([2021] FWCA 4524) is quashed.
(3) The application for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (matter number AG2021/6101) is dismissed.
(4) The UWU is directed to file its submissions on the question of costs within 21 days of the date of this decision, and Hot Wok is directed to file its submissions in response within a further 21 days.
Making an enterprise agreement
54 Part 2-4 of the FW Act deals with enterprise agreements. Section 172(2)(a) provides that an employer may make an enterprise agreement with employees who are employed at the time the agreement is made and who will be covered by the agreement. Section 182(1) provides, relevantly, that an enterprise agreement is made when the majority of the employees who cast a valid vote approve the agreement.
55 Under ss 51(1) and (2), an enterprise agreement does not impose obligations or give entitlements unless the agreement applies to the person. Section 52(1) provides that an enterprise agreement “applies” to a person if, relevantly, it is “in operation”. Under s 54(1), an enterprise agreement must be approved by the Commission in order to operate.
Approval of an enterprise agreement
56 Under s 185(1), a bargaining representative must apply to the Commission for approval of the agreement. Section 185(2) requires the application to be accompanied by any declarations required by the procedural rules to accompany the application.
57 Section 186(1) provides that the Commission must approve the agreement if the requirements set out in ss 186 and 187 are met. The corollary is that the Commission must not approve an agreement if those requirements are not met, subject to exceptions under ss 189 and 190.
58 The requirements set out in s 186(2) include that: (a) the agreement has been genuinely agreed to by the employees covered by the agreement; and, (d) the agreement passes the BOOT test. In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527, the Full Court observed that whether an agreement has been genuinely agreed to involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.
59 Section 189(2) provides that the Commission may approve an agreement if it is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.
60 Sections 190(1) and (2) provide that the Commission may approve an agreement where the Commission has a concern that the agreement does not meet any requirements set out in ss 186 and 187 if the Commission is satisfied that an undertaking from an employer covered by the agreement meets that concern.
The functions and powers of the Commission
61 The Commission is established under s 575(1) of the FW Act. Under s 576(1), the Commission has the functions conferred by the FW Act in relation to specified subject matters, including enterprise agreements under Part 2-4.
62 Section 577(1) provides:
577 Performance of functions etc. by the FWC
(1) The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
…
63 Section 578 provides that in performing functions or exercising powers in relation to a matter, the Commission must take into account matters including, “equity, good conscience and the merits of the matter”.
64 Section 590 provides:
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
65 Section 591 provides:
591 FWC not bound by rules of evidence and procedure
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).
66 Section 604 provides, relevantly:
604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
…
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
…
67 Under s 400(1), the Commission must not grant permission to appeal unless the Commission considers that it is in the public interest to do so.
68 Section 607 provides, relevantly:
607 Process for appealing or reviewing decisions
…
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.
69 Under s 613(1), it is generally a Full Bench which must decide whether to grant permission to appeal, and a Full Bench must hear any appeal.
70 The sole ground relied on by the applicant asserts that the decisions of the Full Bench of 21 October 2022 and 12 November 2022, as well as various procedural orders, are affected by apprehended bias. It may be noted that although the applicant submitted that it was unnecessary for the Full Bench to make its decision of 12 November 2022, it made no submission that the Full Bench was functus officio in respect of that decision.
71 The Full Bench’s function was to determine the Union’s application for an extension of time and permission to appeal and any consequent appeal. The Full Bench was bound to act “judicially” in the sense that it was obliged to respect and apply traditional notions of procedural fairness and impartiality: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [25]; [2011] FCAFC 54.
72 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), the plurality identified at [6] the “governing principle” by which apprehended bias is demonstrated:
…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.
(Citations omitted.)
73 Their Honours added at [7]:
The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.
74 Their Honours went on to observe at [8] that application of the governing principle requires the following steps:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
75 In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 (QYFM), Kiefel CJ and Gageler J at [38] indicated that there are really three steps discernible from the analysis in Ebner, the third being to assess the reasonableness of the asserted apprehension of bias from the perspective of a fair-minded lay observer. Their Honours added at [45] that, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”: see also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [21].
76 Although the governing principle stated in Ebner applies a test of possibility at two levels, a conclusion that apprehended bias has been established must not be too lightly drawn. The reasonable suspicion must be “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553. The possibility must be, “real and not remote”: Ebner at [7]. It is important not to accede “too readily” to suggestions of appearance of bias: see Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 (Mason J).
77 In Ebner, the plurality observed that in Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four distinct, though overlapping, categories of cases involving appearance of bias: interest; conduct; association; and extraneous information. The applicant’s case appears to rely on a combination of the “interest” and “conduct” categories.
78 The applicant submits that a reasonable person would perceive that the Full Bench became a “protagonist” through identifying and investigating a theory that the applicant had engaged in an elaborate sham to deprive employees of penalty rates. It argues that the Full Bench developed an “interest” in the proceeding, namely vindication of that theory, developed when conducting its own investigation into the applicant’s conduct. It submits that the Full Bench assuming the role of an investigator was incompatible with its role as a decision-maker.
79 The applicant points to particular aspects of the Full Bench’s conduct which it asserts support a reasonable apprehension that the Full Bench so involved itself in the proceeding as to become a protagonist. It relies upon the extent of the enquiries made by the Full Bench, said to amount to, “quite a substantial investigation”. It submits that the Full Bench carried out its investigation even though it was unnecessary for the determination of the controversy, given the applicant’s solicitors had indicated that the application would be withdrawn if the appeal were upheld. The applicant submits that the Full Bench went so far as to suggest to or encourage the Union to amend its grounds to take up the issues that had been raised by the Full Bench. The applicant points to the Full Bench’s, “gratuitously antagonistic language” in accusing the applicant of, “extraordinarily and contumaciously” failing to address its concerns. The Full Bench is said to have developed a theory that Mr Latham had engaged in serious dishonesty. The applicant points to the Full Bench’s finding of, “a decades-long history of restaurant and hospitality employees … being deprived of penalty rates for overtime, evening, weekend and public holiday work”. These matters are said to show that the Full Bench had developed antipathy toward the applicant. The applicant also submits that the Full Bench’s conduct and language suggest it closed its mind to the applicant’s arguments concerning the application for an extension of time and permission to appeal.
80 At this stage it may be useful to recapitulate some aspects of the procedural history in order to put the applicant’s submissions into context.
81 The Union’s application for an extension of time to appeal and permission to appeal against the decision of the Deputy President to approve the Agreement raised four grounds. The grounds asserted that the Deputy President had erred in finding that: (1) the Agreement passed the BOOT test; (2) the Agreement was genuinely agreed to by employees to be covered by the Agreement; (3) the group of employees covered by the Agreement was fairly chosen; and (4) the undertakings given by the applicant could remedy the Agreement’s failures to comply with the requirements of the FW Act. The Union sought an order quashing the Deputy President’s decision.
82 On 21 July 2022, the Full Bench heard argument upon the Union’s grounds and reserved its decision. On 1 August 2022, the Full Bench informed the parties that, in the event that permission to appeal were granted and the appeal upheld, it would be necessary for the application for approval of the Agreement to be reconsidered having regard to the approval criteria in ss 186 and 187 of the FW Act. The Full Bench queried whether the staff members who had voted upon the Agreement were employed by the applicant and whether their positions fell within the classifications covered by the Agreement. The Full Bench sought further information about which entity employed the staff members and their positions.
83 The applicant responded by saying that in the event that the extension of time and permission to appeal were granted and the appeal upheld, it intended to withdraw its application for approval of the Agreement. It did not otherwise respond to the Full Bench’s request for information.
84 The Full Bench then issued its Statement of 9 August 2022 specifically identifying “concerns” that some or all of the staff members who voted to approve the Agreement may not have been employed by the applicant and that their job classifications may not fall within the Agreement. The Full Bench expressed concerns that the Agreement may not have been genuinely agreed to by the employees covered by the Agreement in accordance with s 188(1) of the FW Act, and that the supporting declaration made by Mr Latham may have contained a number of incorrect statements of fact, with the possibility that this was intentional. The Full Bench went on to state that its concerns had been amplified by the fact that the applicant had, “extraordinarily and contumaciously” failed to provide information to address the identified matters of concern.
85 In its Statement, the Full Bench also expressed a “provisional” view that it should make orders requiring the applicant to produce relevant documents and requiring Mr Latham and the relevant employees to attend a further hearing for the purpose of giving evidence. Such orders were subsequently made on 25 August 2022 and again on 8 November 2022.
86 On 21 October 2022, the Full Bench decided to grant the extension of time, grant permission to appeal and uphold the Union’s first and fourth grounds of appeal (which concerned the BOOT test and the undertakings given). The Union was also permitted to amend its notice of appeal to plead the ground that had been raised by the Full Bench in its Statement.
87 The Full Bench subsequently conducted a further hearing concerning the Union’s new ground and, on 12 January 2023, upheld the ground on the basis that the Agreement was not made in accordance with s 182(1) of the FW Act and there had been no genuine agreement within s 188(1)(b) because none of the employees who voted to approve the Agreement were covered by it. The Full Bench rejected the alternative argument that the employees who voted to approve the Agreement were not employees of the applicant at the time the Agreement was made. The Full Bench also requested that the General Manager of the Commission consider whether Mr Latham’s conduct in respect of his declaration should be the subject of a referral to the Australian Federal Police.
88 Several factual matters underlying the applicant’s submissions can be accepted.
89 First, it was the Full Bench, not the Union, which identified and raised “concerns” that staff members who voted to approve the Agreement may not have been covered by the Agreement because they were not employed by the applicant and that their job classifications may fall outside the scope of the Agreement. And it was the Full Bench which raised a “concern’ that Mr Latham’s supporting declaration may have contained incorrect statements of fact and the possibility that this was intentional.
90 Second, the Full Bench’s concerns derived from its examination, on its own initiative, of the Commission’s files about the Mantle Group’s previous applications concerning enterprise agreements.
91 Third, the Union later adopted the Full Bench’s expressed concerns as a ground of appeal.
92 Fourth, one of the concerns raised by the Full Bench and adopted by the Union was ultimately successful, and the Full Bench also found that parts of Mr Latham’s declaration were knowingly false and supported by fabricated documents.
93 Accordingly, it is true to say that the Full Bench identified a ground by conducting its own enquiries on its own initiative and ultimately found that ground to be established.
94 The applicant places substantial reliance on the judgment of the High Court in Isbester v Knox City Council (2015) 255 CLR 135 (Isbester) in support of its argument that the Full Bench developed an “interest” in the case (namely vindication of its theory that the applicant had engaged in an elaborate sham to deprive employees of penalty rates) that was incompatible with the appearance of an impartial adjudicator.
95 In Isbester, a municipal council had a statutory discretion to destroy a seized dog if its owner had been found guilty of an offence with respect to the dog. A particular council officer determined that charges should be laid, signed some of the charges and gave instructions for the prosecution of the charges. After the dog owner pleaded guilty, the council officer arranged for a panel of three delegates of the council, including herself, to conduct a hearing to determine whether to recommend that the dog be destroyed. In quashing the decision recommending destruction of the dog, the High Court held that a fair-minded observer might reasonably apprehend that the council officer might not have brought an impartial mind to the decision.
96 The plurality observed at [34]:
The interest which the appellant alleges existed in this case is akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters, whether that person be a judge or a member of some other decision-making body.
97 The plurality observed at [45] that an interest of a prosecutor, accuser or other moving party points to the possibility of a deviation from the true course of decision-making. Their Honours went on to hold at [46]:
A “personal interest” in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment... It is well accepted…that it might reasonably be thought that the person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making…
98 The plurality also observed at [49], “once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious”.
99 In Isbester, Gageler J (as the Chief Justice was then), stated at [63]:
There has been said to be a “general rule which is strictly applied that the same person cannot be accuser and judge … where … the principles of natural justice are required to be observed”. The rule is best understood, at least in an administrative context, not as a free-standing rule of law but instead as referring to a factor the identification of which will almost inevitably give rise to a clear-cut application of the ordinary test for the appearance of disqualifying bias. Rarely could a fair-minded observer not think it appropriate to say of a person: “[i]f he is an accuser he must not be a judge”. That is because a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person.
100 In a subsequent passage upon which the applicant places particular reliance, Gageler J stated at [64]:
The underlying concern was spelt out in the report which led in the United States to the introduction of the Administrative Procedure Act 1946 (US), which contains an express statement of a general proscriptive rule that no employee “engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision [or] recommended decision”, of an agency undertaking an adjudication “except as witness or counsel in public proceedings”. The report explained:
“Two characteristic tasks of a prosecutor are those of investigation and advocacy. It is clear that when a controversy reaches the stage of hearing and formal adjudication the persons who did the actual work of investigating and building up the case should play no part in the decision. This is because the investigators, if allowed to participate, would be likely to interpolate facts and information discovered by them ex parte and not adduced at the hearing, where the testimony is sworn and subject to cross-examination and rebuttal. In addition, an investigator’s function may in part be that of a detective, whose purpose is to ferret out and establish a case. Of course, this may produce a state of mind incompatible with the objective impartiality which must be brought to bear in the process of deciding. For this same reason, the advocate – the agency’s attorney who upheld a definite position adverse to the private parties at the hearing – cannot be permitted to participate after the hearing in the making of the decision. A man who has buried himself in one side of an issue is disabled from bringing to its decision that dispassionate judgment which Anglo-American tradition demands of officials who decide questions. Clearly the advocate’s view ought to be presented publicly and not privately to those who decide.”
101 In QYFM, Keifel and Gageler J observed at [40]:
The reasoning of the plurality in Isbester v Knox City Council, upon which the appellant sought to rely for the proposition that an apprehension of bias should be presumed in a case of "incompatibility of roles", is not to be understood as having departed from the analysis in Ebner. That reasoning is rather to be understood as demonstrating that the outcome of the Ebner analysis in some cases may be so obvious as to warrant little or no elaboration. …
102 The applicant did not expressly frame its argument by reference to the three-step analysis identified in Ebner. However, at the first step of that analysis, the applicant’s identification of the factors that might lead the Full Bench to decide the case other than on its legal and factual merits seems to be that the Full Bench:
(1) assumed the role of an investigator when that role was incompatible with adjudication of the case on its merits;
(2) effectively became, or took on the appearance of, a protagonist (by which the applicant seems to mean, “a champion, or supporter of a movement, cause, idea, etc.; advocate; spokesperson”: see the Macquarie Dictionary Online);
(3) prejudged the case in favour of the theory it had developed that the applicant had engaged in an elaborate sham to deprive employees of penalty rates.
103 At the second step, the applicant’s articulation of the logical connection between the matters identified and the feared deviation from the course of deciding the case on its merits seems to rely upon:
(1) the incompatibility between the Full Bench’s position as an investigator and an impartial decision-maker because it had an interest in vindication of its theory that the applicant had engaged in an elaborate sham to deprive employees of penalty rates;
(2) the Full Bench’s conduct as a protagonist or advocate of its theory;
(3) the Full Bench’s prejudgment of its theory.
104 It is necessary to assess the accuracy of some of the premises involved in the applicant’s analysis at the first two steps.
105 In Isbester, the plurality observed at [23]:
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
(Citations omitted.)
106 In R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546; [1969] HCA 10, the High Court, emphasising the matters of “public concern” involved in the respondent Commission’s functions, held at 553:
It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing private rights. Amongst other things, it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights.
(See also Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 42 IR 352; [1992] HCA 30.)
107 It is accordingly necessary to have regard to the nature of the jurisdiction exercised by the Full Bench and the statutory provisions governing its exercise in order to assess the perception of the hypothetical fair-minded observer.
108 The Union’s application for permission to appeal and the consequent appeal in the event that leave should be granted involved aspects of public concern, not merely the private concerns of the parties.
109 The application for permission to appeal specifically required the Full Bench to consider the public interest. The Full Bench is required to refuse permission to appeal unless it considers it in the public interest to grant permission (s 400(1)) and to grant permission if satisfied that it is in the public interest to do so: s 604(2). The phrase “public interest” conveys a wide discretionary value judgment: O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Jones v Commonwealth (2023) 97 ALJR 936 at [21]; [2023] HCA 34; Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 at [39]. In Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, Mortimer CJ observed at [214] that the phrase asks a repository of a power conferred in these terms to look at interests common to or held amongst a wider community, but not necessarily across an entire community, or nation. Plainly, the public interest extends beyond the private interests of the parties.
110 Where the Full Bench grants permission to appeal, the consequent appeal is in the nature of a rehearing: ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association (2017) 262 CLR 593 at [100] (ALDI Foods). Ordinarily, demonstration of error in the decision at first instance is required to empower the Full Bench to interfere with the decision below: see Allesch v Maunz (2000) 203 CLR 172 at [23]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [58]. The Full Bench may, under s 607, admit further evidence and may find, on the basis of such further evidence, that the first instance decision was erroneous: ALDI Foods at [100]. Upon demonstration of error, the Full Bench may, under s 607(3), make a further decision in relation to the matter that is the subject of the appeal.
111 When the Full Bench exercises for itself the discretions of the Commissioner at first instance, those discretions involve statutory requirements of which the Full Bench must itself be satisfied: D&D Traffic Management Pty Ltd v Australian Workers’ Union (2022) 178 ALD 164 at [31]; [2022] FCAFC 113. An enterprise agreement cannot be approved unless the Commission is satisfied that it passes the requirements of ss 186 and 187 of the FW Act. The Commission’s function of deciding whether an enterprise agreement should be approved has both private and public elements.
112 In Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152, the Full Court held at [89]:
…[T]he Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.
(See also Australian Industry Group v Fair Work Australia (2012) 205 FCR 339 at [72]).
113 It may be seen that the consequences of the Commission’s decision whether to approve an enterprise agreement may extend beyond the private interests of the parties to the proceeding. The decision can appropriately be described as having a public character.
114 Another contextual matter is that the Commission’s function of deciding whether to approve an enterprise agreement has a protective purpose. It is the Commission’s approval that brings an enterprise agreement into operation in the sense of creating rights and obligations between the employer and employees: ALDI Foods at [34]. The requirements of ss 186 and 187 of the FW Act of which the Commission must be satisfied include that the agreement has been genuinely agreed; no person coerced, or threatened to coerce, the employer to make the agreement; the agreement does not exclude any provision of the National Employment Standards; and the agreement passes the BOOT test. Accordingly, the Commission plays a protective role for both employers and employees.
115 The FW Act grants considerable latitude to the Commission, including a Full Bench of the Commission, as to how it may undertake its functions. The Commission must approach its function quickly and with minimal formalities (s 577(1)(b)); must take into account, “equity, good conscience and the merits of the matter” (s 578(b)); is empowered to make procedural and interim decisions on its own initiative (s 589); may inform itself in such manner as it considers appropriate (s 590); is not bound by rules of evidence or procedure (s 591); and is not required to decide an application before it in the terms applied for (s 599). In short, the Full Bench has a statutory mandate to, “get to the heart of matters as directly and effectively as possible”: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [25].
116 To reiterate, the Full Bench is required to have regard to the public interest in deciding whether to grant permission to appeal, may inform itself in such manner as it considers appropriate and may admit further evidence. If error is established, the Full Bench may decide the matter that is the subject of the appeal. In deciding whether to approve an enterprise agreement, the Full Bench performs a function that has protective and public elements.
117 These features of the Full Bench’s functions and powers support a conclusion that the Full Bench is not confined to the issues as they have been defined by the parties: see also Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 (per Brennan J). In addition, the Commission, including the Full Bench, is expressly conferred with power under s 590 to inform itself in such manner as it considers appropriate, including by requiring persons to attend before it, requiring the production of documents or records and conducting enquiries. In these respects, proceedings before the Commission may be contrasted with adversarial proceedings before a Court where, “a judge tries the case before [them] on the evidence and arguments presented to [them] in open court by the parties or their legal representatives and by reference to those matters alone…”: Re v JRL; ex parte CJL (1986) 161 CLR 342 at 350.
118 The FW Act treats the Commission’s power to conduct investigations and go beyond the evidence and arguments presented by the parties as being compatible with its function of impartially deciding a case. Of course, the Commission is subject to obligations of procedural fairness that may require giving the parties an adequate opportunity to address concerns revealed by any investigations, but there is no complaint that the Full Bench failed to give such an opportunity in the present case. Contrary to the applicant’s submission, a fair-minded lay observer having knowledge of the Full Bench’s functions under the statutory scheme would not consider that there was any incompatibility between the Full Bench’s interrogation of the Commission’s own files and its consequential development and raising of concerns.
119 The applicant’s argument continues that the Full Bench went further than merely carrying out a permissible investigation and effectively became a protagonist and developed an interest in vindicating its theory that the applicant had engaged in an elaborate sham to deprive employees of penalty rates.
120 The applicant relies upon the extent of the enquiries made by the Full Bench, calling it, “quite a substantial investigation”, as supportive of its contention that the Full Bench became a protagonist. However, the Full Bench did no more than examine its files concerning previous proceedings involving the Mantle Group. A fair-minded lay observer would not perceive that the Full Bench conducted such a substantial investigation as to transform its role into one incompatible with making an impartial decision.
121 The applicant’s submission that the Full Bench developed a theory that Mr Latham had engaged in serious dishonesty attributes a stronger position to the Full Bench than is apparent from its language. The Full Bench said that Mr Latham’s declaration in support of the application for approval “may have” contained a number of incorrect statements of fact, “with the possibility that this was intentional”. It may not have been strictly necessary to raise that possibility at that stage, but it was apparently done with the intention of giving the applicant the benefit of fair warning of a matter that it might wish to address. The statement did not contain any accusation or even indicate a preliminary view that Mr Latham had intentionally made false statements. A fair-minded lay observer would not reasonably apprehend that raising the possibility of Mr Latham’s dishonesty as indicating that a Full Bench might not bring an impartial mind to the resolution of the proceeding.
122 There is cause for some disquiet about the Full Bench’s comment that the applicant had, “extraordinarily and contumaciously” failed to comply with the request to provide information to address the identified matters of concern. The Full Bench had indicated that it wished to deal with all matters in a single decision and requested additional information from the applicant. The applicant’s response was to say that in the event the proposed appeal was ultimately upheld, it intended to withdraw the application for approval of the Agreement. In rejecting the applicant’s first recusal application, the Full Bench explained that since the applicant had not complied with the request and had given a non-responsive answer, it was, “appropriate to describe the response as ‘extraordinary’” (in the sense of being “unusual”), and “‘contumacious’ (that is, intentionally non-compliant)”. The ordinary meaning of contumacious is, “stubbornly perverse or rebellious; wilfully and obstinately disobedient to authority” (see Macquarie Dictionary Online) and carries a more critical connotation than that attributed to the word by the Full Bench. It may also be observed that in the absence of an order, the applicant was not under any obligation to produce the information requested by the Full Bench.
123 In the course of argument, the applicant’s counsel explained that the applicant’s response to the Full Bench’s request was, in effect, a submission that it was unnecessary to provide the requested information because if the Full Bench considered that any of the Union’s pleaded grounds should succeed, it should not go on to consider the concerns it had raised, but should instead give the applicant the opportunity to withdraw the application. That interpretation, it must be said, is not an obvious one and requires some degree of parsing of the applicant’s response. Even accepting the applicant’s explanation, the submission was very ambitious and could only have served to confirm that the Full Bench’s concerns were well-founded. However, it may be regarded as responsive to the Full Bench’s request for further information since it indicated that the applicant considered it to be unnecessary for such information to be provided and explained why.
124 The Full Bench’s description of the applicant’s response and failure to provide the information as “extraordinary” and “contumacious” was somewhat harsh. However, a fair-minded lay observer would regard the Full Bench’s comment as reflecting its understandable interpretation of the response as unresponsive rather than as conveying the involute meaning explained by the applicant’s counsel. The questioning and testing of submissions may legitimately be vigorous and robust: Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 at [26]. While the Full Bench’s comment revealed a sense of irritation at the applicant’s conduct, a fair-minded lay observer would not perceive that the Full Bench might have developed such antipathy towards the applicant that it might not be able to bring an impartial mind to the resolution of the proceedings.
125 The applicant submits that another indicator of the Full Bench becoming a protagonist is that it continued its investigation of its concerns even though that was unnecessary since the applicant’s lawyers had indicated that the application would be withdrawn if the appeal were upheld. However, the concerns raised by the Commission were relevant even before the stage was reached where any appeal might be upheld. Those concerns were relevant to whether permission to appeal should be granted. They were also relevant to the question of whether further evidence should be admitted and whether such evidence might demonstrate error in the Deputy President’s decision. Further, the Commission was under no obligation to accede to the applicant’s submission that it should be given an opportunity to withdraw its application upon the Full Bench finding any of the Union’s pleaded grounds being established. The Union had sought an order that the Deputy President’s decision approving the Agreement be quashed and, in the event that the Full Bench determined there was error, it was required to consider whether such an order should be made. In doing so, it would be open to the Full Bench to take into account the concerns it had raised regardless of whether they were outside the scope of the dispute defined by the parties. A fair-minded lay observer could have no perception that the Full Bench had become a protagonist by continuing to investigate the matters about which it had expressed concerns.
126 The applicant submits that another indicator of the Full Bench becoming a protagonist is that its finding in its decision of 21 October 2022 that there had been, “a decades-long history of restaurant and hospitality employees in Mantle Group Hospitality being deprived of penalty rates for overtime, evening, weekend and public holiday work”. The applicant’s submission conflates an apprehension that the decision-maker might not bring an impartial mind to the resolution of the question to be decided with the outcome. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the plurality held at [67] that an allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue: see also Ebner at [7]. It was held at [68] that that it was erroneous to take into account the reasons for judgment in deciding there was a reasonable apprehension of bias. Accordingly, the finding complained of by the applicant cannot be used to demonstrate apprehended bias on the part of the Full Bench.
127 The applicant submits that another indication that the Full Bench had become a protagonist emerges from comments made on 8 September 2022 during an application for an adjournment of the hearing pending determination of the applicant’s application to the Federal Court for orders restraining the Full Bench from hearing and deciding the matter. Argument ensued about the appropriateness and utility of the Full Bench proceeding with hearing the grounds already raised by the Union in the face of the applicant’s allegation of apprehended bias. In that context, a member of the Full Bench asked the applicant’s counsel:
What if, for example, having heard the evidence, the UWU decided to amend its grounds of appeal?... I suppose, in which case, on one view, again, the Federal Court proceedings just go away, don't they?
128 The applicant submits that by making this comment, the Full Bench went so far as to suggest to or encourage the Union to amend its grounds to take up the issues that had been raised by the Full Bench. However, the comments had a legitimate purpose in testing the applicant’s submission that the whole of the proceeding should be adjourned rather than merely the concerns raised by the Full Bench. They raised the question of whether a hearing upon the limited grounds raised by the Union might assist to advance the whole of the proceeding. A fair-minded lay observer could not reasonably apprehend that the comments were intended to suggest to or encourage the Union to amend its grounds.
129 The language of the Full Bench’s correspondence with the parties reveals no more than that the Full Bench had “concerns” about the matters it raised. The raising of those concerns was entirely consistent with the responsibility of the Full Bench to consider the public interest and its protective role in considering whether the Agreement should be approved in the event that any appeal succeeded. The language used was not suggestive of fixed or concluded opinions. To the extent that the applicant alleges prejudgment, the context and language fail to establish any reasonable fear that the minds of the members of the Full Bench are, “so prejudiced in favour of a conclusion already formed that [they] will not alter that conclusion irrespective of the evidence or arguments presented to [them]”: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
130 In our opinion, none of the matters pointed to by the applicant, whether individually or in combination, might cause a fair-minded lay observer to reasonably apprehend that the Full Bench might not bring an impartial mind to the resolution of the proceedings.
131 The application must be dismissed.
132 Neither party submitted that any order for costs should be made. There will accordingly be no order as to costs.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Collier, Rangiah and Charlesworth. |
Associate:
