Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. ICQ
  3. 2015
  4. Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission - [2015] ICQ 23

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission[2015] ICQ 23

Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission[2015] ICQ 23

 

INDUSTRIAL COURT OF QUEENSLAND

 

CITATION:

Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2015] ICQ 023

PARTIES:

TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES
(appellant)
v
EXECUTIVE DIRECTOR, PUBLIC SECTOR EMPLOYEES INDUSTRIAL RELATIONS, PUBLIC SERVICE COMMISSION
(respondent)

CASE NO/S:

C/2014/58

PROCEEDING:

Appeal

DELIVERED ON:

15 September 2015

HEARING DATE:

3 February 2015

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – REASONABLE SUSPICION OF BIAS – where the appellant sought orders for an interim wage increase for employees proposed to be covered by a determination being sought in arbitral proceedings – where the Vice President expressed views about how the interim and final determinations might proceed –  where the appellant applied to the Vice President to recuse herself from the Full Bench established to hear the interim wage increase matter on the basis of apprehended bias – where the Vice President dismissed that application – whether the Vice President erred in law or acted in excess of jurisdiction in failing to recuse herself from further hearing the matter

Industrial Relations Act 1999, s 149(2)(b)

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Re JRL; ex parte CJL (1986) 161 CLR 342

ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCAFC 106

APPEARANCES:

K McKay from Together Queensland, Industrial Union of Employees for the appellant

J Murdoch QC instructed by Minter Ellison Lawyers for the respondent

  1. [1]
    This is an appeal from a decision of the Vice President in which she dismissed an application that she recuse herself from any further hearing in matter CA/2013/8.
  1. [2]
    The appellant is a party to the State Government Department’s Certified Agreement 2009. A dispute arose about the nature of a replacement agreement and that dispute was referred to arbitration by a decision made in January 2013.
  1. [3]
    On 31 January 2013, the appellant sought orders pursuant to s 149(2)(b) of the Industrial Relations Act 1999 (the Act) for:
  1. (a)
    An interim increase in wages of 2.35 per cent for all employees proposed to be covered by a determination being sought in the arbitral proceedings, and
  1. (b)
    An operative date for that interim wage increase of 31 January 2013.
  1. [4]
    There have been a number of decisions of a Full Bench of the Commission, this Court, and the Supreme Court since then. This application concerns mention hearings which were held on 20 February 2013 and 29 April 2013.
  1. [5]
    A brief history of the matter may be found in the reasons of the Vice President at [4]–[10].[1]

The decision under appeal

  1. [6]
    The appellant applied to the Vice President to recuse herself from the Full Bench established to hear matter CA/2013/8. The basis for the application was apprehended bias.

The relevant principles

  1. [7]
    The relevant test for disqualification on the ground of bias was enunciated in Ebner v Official Trustee in Bankruptcy[2] where Gleeson CJ, McHugh, Gummow and Hayne JJ said:

“… 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.”.[3]

  1. [8]
    That principle is applicable to members of tribunals such as the Queensland Industrial Relations Commission. See, for example, ResMed Limited v Australian Manufacturing Workers’ Union.[4] But, in saying that, it should be acknowledged “that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making.”[5]
  1. [9]
    The rule against bias, actual or apprehended, is directed to prejudgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. In Minister for Immigration and Multicultural Affairs v Jia Legeng[6] Gleeson CJ and Gummow J said:

“Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. …

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”[7]

  1. [10]
    It is well accepted that Ebner provides that there is a test which involves at least two steps:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two 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. … Only then can the reasonableness of the asserted apprehension of bias be assessed.”[8] (emphasis added)

  1. [11]
    In Jia Legeng Hayne J set out a similar analysis relevant to the issue of prejudgment. He said:

“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.”[9]

  1. [12]
    Finally, the words of Mason J in Re JRL; ex parte CJL[10] must be borne in mind:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR 248, at p 262; Re Lusink; Ex parte Shaw(1980) 55 ALJR 12.  Although it is important that justice must be seen to be done, 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.”[11] (emphasis added)

  1. [13]
    The Vice President correctly identified the test she had to apply when she said:

“[15] Thus, the question for me to determine is, whether or not, in all the circumstances, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues required to be decided in the Interim Application i.e. given comments made by me on transcript and in a decision of the Full Bench released on 30 April 2013. That is, to identify the first step discussed by the High Court in Ebner v Official Trustee in Bankruptcy. The next step is to articulate the logical connection between that matter and the feared deviation from the course of deciding the matter on its merits.”

  1. [14]
    In her reasons dismissing the application, the Vice President applied that reasoning to the exchanges the subject of the application.

Grounds of appeal

  1. [15]
    At the hearing of the appeal the grounds of appeal were limited to:
  1. (a)
    “Vice President Linnane erred in law and, or in the alternative, acted in excess of jurisdiction in failing to recuse herself from further hearing Matter CA/2013/8 by deciding that the statements made by her Honour on 20 February 2013 did not give rise to a reasonable apprehension (sic).”
  1. (b)
    “Vice President Linnane erred in law and, or in the alternative, acted in excess of jurisdiction in failing to recuse herself from further hearing Matter CA/2013/8 by deciding that the statements made [in the first exchange] by her Honour on 13 March 2013 did not establish a reasonable apprehension of bias.”

The hearing on 20 February

  1. [16]
    At the hearing on this date Together Queensland sought the joinder of other matters to the application for an interim increase. This was opposed by the Public Service Commission. Counsel for the Public Service Commission (Mr C J Murdoch) submitted that the Full Bench had no jurisdiction to grant an interim increase but that, if it were to be held that there was jurisdiction, then the dates already allocated to the substantive matter could be used “to have an argument in respect of whether or not an interim (sic) should be awarded”.
  1. [17]
    During the hearing there was an exchange between the Vice President and the representatives at the bar table which the appellant says demonstrates the apprehended bias. It was:

“THE VICE PRESIDENT:  Thank you.  I suppose my view, and I haven't consulted on this, is that it takes just as long to argue an interim increase as it does - because the same type of evidence needs to be adduced as it does for the final.

MR MURDOCH:  Well‑‑‑‑‑

THE VICE PRESIDENT:  So it's going to take up - if there was an interim increase, you must adduce the same kind of evidence.

MR MURDOCH:  Well, with respect‑‑‑‑‑

THE VICE PRESIDENT:  Which becomes the increase anyway.

MR MURDOCH:  With respect, and this might be where your Honour's going with that point, given that it's perhaps even more important to deal with the jurisdictional matter early and first and then we don't then have to get into the difficulty of timing in respect of the interim and the hearing of the evidence of it if there's no jurisdiction.

THE VICE PRESIDENT:  Okay.  We'll take that on board.

MR McKAY:  If I may, your Honour, in respect of this matter, we think that the issue of jurisdiction could be dealt with by written submissions and I just wish to raise in terms of the interim application that we're actually seeking - the interim wage increase that we're seeking is not what we're seeking in the final determination.  It is a lower amount.  So the issues that you've raised about the same‑‑‑‑‑

THE VICE PRESIDENT:  But that doesn't matter.  You've still got to justify that‑‑‑‑‑

MR McKAY:  Yes, yes.

THE VICE PRESIDENT:  ‑‑‑‑‑with evidence‑‑‑‑‑

MR McKAY:  Yes.

THE VICE PRESIDENT:  ‑‑‑‑‑and that means calling all the people that you'll be calling‑‑‑‑‑

MR McKAY:  Well, we‑‑‑‑‑

THE VICE PRESIDENT:  ‑‑‑‑‑at the final submission, I would think, the final hearing.”

  1. [18]
    The appellant submits that these statements were not “a tentative view designed to assist the Appellant in framing its case for an interim wage increase”.
  1. [19]
    It is then submitted that:
  1. (a)
    A “reasonable or fair minded observer” might reasonably apprehend that the Vice President had prejudged the issue, that is, whether an interim wage increase should be given pending final determination.
  1. (b)
    That apprehension would arise because of the Vice President’s “clear view” that the same type of evidence would need to be adduced as would be in the determination proceedings.
  1. (c)
    The reasonable or fair minded observer might apprehend that the Vice President was of the view that the appellant could only be successful in an interim wage application if it led  all the evidence it would lead in a determination proceeding and, thus, that the Vice President would decide the interim wage application other than on its merits. 
  1. [20]
    The Vice President was sitting as a member of Full Bench. In the second sentence of the impugned exchange she says something which both introduces and provides the context for her later remarks, that is:

“I suppose my view, and I haven't consulted on this, is that it takes just as long to argue an interim increase as it does - because the same type of evidence needs to be adduced as it does for the final.” (emphasis added)

  1. [21]
    The remaining parts of the exchange which are the subject of criticism by the appellant should all be read in the light of that introduction. The following may be drawn from those introductory words:
  1. (a)
    The use of the word “suppose” supports a conclusion that what was then said was not a final view or conclusion. In that context “suppose” would ordinarily be taken to mean “inclined to think” or an assumption for the purposes of argument.
  1. (b)
    Similarly, the words “I haven't consulted on this” indicates that anything being said is of a preliminary nature and likely to be the subject of further consideration with the other members of the Full Bench.
  1. (c)
    The reference to “same type of evidence” does not logically support the inference that the Vice President would find against the appellant unless the appellant led “all the evidence” it would ordinarily lead on a final application.
  1. [22]
    Further, all these statements were made in the broader context of an argument over whether there was jurisdiction to make an interim wage increase.
  1. [23]
    The appellant’s arguments confuse (a possible) predisposition with prejudgement. The exchange the subject of the complaint, when read in the overall context and in the light of the introductory remarks, is properly to be seen as an ordinary exchange in which hypothetical matters are considered and are the subject of preliminary comment.

The hearing on 13 March

  1. [24]
    At this hearing one of the issues which was considered was how the Commission might deal with the problem of an interim wage increase being greater than the increase finally determined.
  1. [25]
    The exchange said to demonstrate apprehended bias is as follows:

“MR McKAY: What we have put before this Commission is an application to seek an order that will have effect for a limited period of time.  So it's not in any way the final resolution of the matter.  We have suggested a quantum that is not the final quantum that we are seeking.  We are suggesting an operative date which is not the final operative date that we are seeking.

The quantum that we had suggested was at the time of making the application, the quantum that we understood that the respondent would be seeking in the determination.  If that has changed, that is something that can be discussed in terms, or we go over that when we actually deal with the merit of the case, not the jurisdictional argument, which is all that we're dealing with today.

The other issue is that my friend has tried to run a roundabout argument and bringing in merit issues to try and oust any jurisdictional basis for their claim on the basis that because we're seeking a date for the operation of the interim agreement - the interim wage increase, that would be before the final determination, that is something that prejudges the final outcome, or actually creates a final outcome, that is clearly incorrect.

Your Honour, in terms of-----

THE VICE PRESIDENT:  Does that mean the issue of operative date must be determined for the whole amount-----

MR McKAY:  No, your Honour.

THE VICE PRESIDENT:  -----ahead of time?

MR McKAY:  No, your Honour, because what we're saying is this is an interim step and what we're saying is the operative date for the interim of that wage increase, we are arguing the 31st of January.  The Commission has powers to grant - to have a different outcome.  The final outcome we're seeking is for an operative date which predates the 31st of January.

THE VICE PRESIDENT:  And what if you get January 2014 as the operative date, or whenever the matter gets on for hearing-----

MR McKAY:  For the final determination?

THE VICE PRESIDENT: -----or July 2013 as the operative date?

MR McKAY:  Well, the Commission has in its powers in making the final determination to make - to address issues about the merits of the case.

THE VICE PRESIDENT:  So you retrieve moneys from employees?

MR McKAY:  Or the Commission if they felt there was an increase granted that provided in the interim stage, it can adjust the quantums.  The issues are the quantums can be adjusted; should there be a merit for that?

THE VICE PRESIDENT:  But if there's an operative date only of July this year, how do you adjust quantum?

MR McKAY:  These are issues that go to merit, not jurisdiction, your Honour.

THE VICE PRESIDENT:  But all I'm saying is you [would][12] have to determine the operative date for the whole thing before you could grant an interim.

MR McKAY:  No.  No, your Honour, we don't say that is a necessity, and that's something that should be determined in the argument for the merit of an interim wage increase, not the jurisdiction.

THE VICE PRESIDENT:  Yes, I understand that, but I'm just saying from my perspective you would need to determine the operative date for the final thing before you could grant any interim increase, even if you had power.

MR McKAY:  Well, we take - we note your comments but we respectfully don't agree and during the merit argument, we will provide reasons as to why that's not necessarily the case.”

  1. [26]
    This exchange, the appellant argues, does not demonstrate a “tentative view designed to assist the parties in framing their respective cases.” I disagree. The Vice President’s statements must be read in context and, in this case, the introductory words to the exchange were:

“Does that mean the issue of operative date must be determined for the whole amount … ahead of time?”

  1. [27]
    What then follows is an exploration of that question. For example, the Vice President asks:

“But if there's an operative date only of July this year, how do you adjust quantum?”

  1. [28]
    At the end of the exchange, the Vice President says:

“ … I'm just saying from my perspective you would need to determine the operative date for the final thing before you could grant any interim increase. …”

  1. [29]
    The questions being asked of Mr McKay were for the purpose of understanding how the Commission might proceed if any final determination was lower other an interim increase. That is, with respect, a perfectly reasonable issue to consider. The Vice President did offer a view, or as she put it: “I'm just saying from my perspective …” and sought assistance on that point.
  1. [30]
    What emerges clearly from the exchange is that the appellant was put on notice that this was a matter which required further consideration. Indeed, that appears to have been the inference drawn by Mr McKay when he said:

“Well, we take - we note your comments but we respectfully don't agree and during the merit argument, we will provide reasons as to why that's not necessarily the case.”

  1. [31]
    The proper characterisation of the exchange is that the Vice President expressed a concern about how a matter might have to be dealt with and alerted the appellant to a view she had about a problem which might arise. That is a common (and desirable) feature of exchanges between the Commission and those appearing before it. It does not demonstrate apparent bias.

The audio recordings

  1. [32]
    I was invited to listen to part of the recordings made of the hearings because, it was submitted, the tone of voice used by the Vice President demonstrated that she was not asking questions but was expressing a concluded view.
  1. [33]
    I did listen to part of the hearing. Nothing said, or the manner in which it was said, supported the appellant’s argument.

Conclusion

  1. [34]
    The Vice President correctly set out the law and applied it to the circumstances. The appellant has failed to demonstrate any error in her reasoning. The appeal is dismissed.

Footnotes

[1]  [2014] QIRC 211.

[2]  (2000) 205 CLR 337

[3]  Ibid at 344.

[4]  [2015] FCAFC 106.

[5] Isbester v Knox City Council (2015) 89 ALJR 609 at [22] per Kiefel, Bell, Keane and Nettle JJ.

[6]  (2001) 205 CLR 507.

[7]  Ibid at 531-532.

[8] Ebner at 245.

[9] Jia Legeng at 564.

[10]  (1986) 161 CLR 342.

[11]  Ibid at 352.

[12]  In the transcript of this hearing these words appeared as “… all I'm saying is would you have …”. After listening to the recording of the hearing, I’m satisfied that the transcript was mistaken and that the words used were those set out above.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission

  • MNC:

    [2015] ICQ 23

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    15 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
3 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
Isbester v Knox City Council (2015) 89 ALJR 609
1 citation
Jump To
Cite 1 - (2015) 89 ALJR 609
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
4 citations
Jump To
Cite 1 - (2001) 205 CLR 507
Cite 2 - (2001) 205 CLR 507
Cite 3 - (2001) 205 CLR 507
Cite 4 - (2001) 205 CLR 507
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
1 citation
Jump To
Cite 1 - (1969) 122 CLR 546
Re JRL; Ex parte CJL (1986) 161 CLR 342
3 citations
Jump To
Cite 1 - (1986) 161 CLR 342
Cite 2 - (1986) 161 CLR 342
Cite 3 - (1986) 161 CLR 342
Re Lusink; ex parte Shaw (1980) 55 ALJR 12
1 citation
Jump To
Cite 1 - (1980) 55 ALJR 12
ResMed Limited v Australian Manufacturing Workers' Union [2015] FCAFC 106
2 citations
Jump To
Cite 1 - [2015] FCAFC 106
Cite 2 - [2015] FCAFC 106
Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2014] QIRC 211
2 citations
Jump To
Cite 1 - [2014] QIRC 211
Cite 2 - [2014] QIRC 211
Watson; Ex parte Armstrong (1976) 136 CLR 248
1 citation
Jump To
Cite 1 - (1976) 136 CLR 248

Cases Citing

Case NameFull CitationFrequency
Costanzo v State of Queensland (Office of Industrial Relations) [2022] QIRC 4462 citations
Kelsey v Logan City Council & Ors [2018] QIRC 992 citations
Royce v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 192 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.