TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
(T8620 of 1999)
and
Tasmanian Electro Metallurgical Company Pty Ltd

The Australian Workers' Union, Tasmania Branch
(T8858 of 2000)
and
Tasmanian Electro Metallurgical Company Pty Ltd

Australian Mines and Metals Association (Incorporated) on behalf of TEMCO
(T8848 of 2000)
and
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

Industrial dispute - drug and alcohol policy - random testing - perceived bias - disqualification - jurisdiction - Workplace Health and Safety Act 1995 - employer and employee relationship - Temco Workplace Agreement 1999 - Work Practice Change Procedures - matters to proceed to full hearing

REASONS FOR INTERIM DECISION

These applications for dispute hearings, made under Section 29 of the Industrial Relations Act 1984 (the Act), commenced with application number T8620 of 1999, which concerned a dispute between the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (the Metals Union) and Tasmanian Electro Metallurgical Company Pty Ltd (TEMCO), over a proposal to introduce a replacement drug and alcohol policy by TEMCO at its works in George Town. Acceptance of the proposed drug and alcohol policy was to be a condition of employment at TEMCO. The key element in the dispute was the introduction of random testing in the workplace as part of the proposed policy.

The hearing of this first application was adjourned and then brought on again in late February 2000 with the other two applications: T8488 of 2000, which was lodged by the Australian Mines and Metals Association (Incorporated) (the Association) on 14 February 2000, and T8858 of 2000, which was lodged by The Australian Workers' Union, Tasmania Branch (the AWU) on 24 February 2000. All applications concerned the same subject matter and they were joined for hearing on 28 February 2000.

At the hearing on 30 March 2000, Mr R Grueber, a legal practitioner, sought and was granted leave to appear on behalf of the Metals Union, and Mr B Moore, also a legal practitioner, sought and was granted leave to appear on behalf of TEMCO.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) intervened in the hearing of these disputes.

Disqualification

The Metals Union, relying on certain earlier comments made on the record by the Commission, requested that I disqualify myself from continuing to hear these applications on the grounds of apprehended bias.

The relevant comments relied upon (including one referred to in addition by TEMCO for the sake of completeness) were as follows.

On 28 February 2000, in transcript at page 5, lines 28 to 32:

"Thanks, Mr Fitzgerald. Mr Flanagan? Before you do, Mr Flanagan, I just want to point out that at the previous adjourned hearing, the Metal Workers application if I remember correctly, off the record the commission made its view on these matters reasonably clear. I don't know whether you're aware of that or not, Mr Flanagan?",

and page 16, lines 11 to 22:

"Thanks, Mr Fitzgerald. I will adjourn the hearing into conference between the parties and I won't take part in it initially. I take note of what's been submitted to the commission and without hearing details and clear points, serious points to be considered by the commission, I put it, without prejudice to such submissions, I think it's still fair to say that the commission's position was made known off the record at the previous hearing and I'm indebted to Mr Becker indicating he'll pass that on to those who are not aware of it.

I think it would be advisable if the parties were able to reach a settlement between themselves on it. Otherwise, we may have to have a protracted hearing and the result subject without prejudice to what's submitted may be foreseen, shall we say.

With that, I'll adjourn the proceedings and request the parties to go into conference and I'll be available to speak to the parties either separately or together, as soon as they are ready. Thank you."

More specifically, the Metals Union singled out as the basis for its contention the two particular comments, "... the Commission's position was made known off the record" and, " ... the result, subject without prejudice to what's submitted, may be foreseen ...".

The Metals Union relied on some precedent decisions:

• a Supreme Court of Tasmania case, R v Willee (unreported, A21/1994) in which Mr Justice Cox (as he then was) quoted, at page 5, from a High Court decision, Grassby v The Queen (1989) 168 CLR 1:

"'As to Mr Pikor's claim of bias against Underwood J, the test has been stated several times. In Grassby v The Queen (1989) ...' [which is a High Court decision] 'Dawson J, in a judgment with which all other members of the Court agreed, said:' [and this is the test, the classic test that is to be found essentially in every case that deals with apprehended bias] 'The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: ...' [and his Honour cited Livesey v New South Wales Bar Association and Reg v Watson, both High Court cases]. 'If so, then the judge ought not to proceed to hear the matter.'" [Transcript, 30/3/00, page 38.]

• another Supreme Court of Tasmania case, R v Matterson (Magistrate) ex parte Lord (unreported, 82/1997), in which Mr Justice Wright quoted Mason J in a High Court decision, Re JRL ex parte CJL (1986) 161 CLR 342:

"'The basic principle governing conduct by a judicial officer in the relevant respects is to be found in what Mason J (as he then was) said in Re JRL ex parte CJL (1986)' [again a High Court decision] 'at 351: "The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: R v Watson; Ex parte Armstrong (1976), at 258 - 263; Livesey v NSW Bar Association (1983). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done." (Transcript, 30/3/00, pages 38-39.)

The Metals Union submitted that it was a question of perception, in particular by a third party, and quoted from Mr Justice Kirby, the President of the New South Wales Court of Appeal, in the case S & M Motor Repairs Pty Ltd and Others v Caltex Oil (Australia) Pty Ltd and Another (1988) 12 NSWLR at 358:

"'Normally the contention of the litigant seeking disqualification will not be that of actual bias but of imputed or suspected bias. After much debate concerning the formulation of the test applicable to such cases, it is now well established both in Australia and elsewhere.'

It then sets out some authority and it goes on to say:

'The question is not whether the tribunal will in fact be biased but whether a reasonable man with no inside knowledge might well think it might be biased.'" (Transcript, 30/3/00, page 39.)

In the latter context, the Metals Union also referred to R v Watson, (1976) 136 CLR 248, and quoted the majority judgment as follows:

"The question is not whether there was a real likelihood that Watson J was biased. The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind." (Transcript, 30/3/00, page 40.)

The Metals Union submitted that the comments relied upon as predicating disqualification "can only give rise to a reasonable suspicion that you have prejudged the matter and that you may well have reached a decision prior to the hearing of the substance of the case." (Transcript, 30/3/00, page 40.)

TEMCO submitted that I should not disqualify myself from further dealing with these applications and, in the same manner as the Metals Union, referred to and quoted from a number of precedent decisions. I consider the relevant and significant extracts from the quotations relied on were:

In the High Court case, Re Polites and Another; Ex parte The Hoyts Corporation Pty Ltd (1991) 100 ALR 634, which in turn relied on precedents mentioned by the Metals Union):

"'[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. ... Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.'

In applying this test, it is necessary to bear in mind the caution expressed by Mason J in re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239 at 245-6:

'It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248; 9 ALR 551 and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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.'" (transcript, 30/3/00, page 42),

and further, when referring to the case R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100:

"'Bias must be "real". The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded' ...", (Transcript, 30/3/00, page 43.)

and:

"Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised." (Transcript, 30/3/00, page 43.)

In the High Court case Re Finance Sector Union of Australia and Another; Ex parte Illaton Pty Ltd and Re Finance Sector Union of Australia; Ex parte Swartz and Others (Exhibit F3), which related to a view being expressed by a judge about the ultimate determination of a matter:

"The nature of industrial relations in this country makes it inevitable that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously, the functioning of the Commission [that's a reference of course to the federal commission] requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute.' In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor.", (Transcript, 30/3/00, page 44.)

and:

"In these circumstances, the need for caution which this court has consistently identified in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. ... " (Transcript, 30/3/00, page 44.)

In the case Textile, Clothing and Footwear Union of Australia v Australian Dyeing Company (Exhibit F4), a 1999 decision of Senior Deputy President Williams of the Australian Industrial Relations Commission, including a quote of Mr Justice Mason in another case:

"The requirement that justice must be seen to be done does not, however automatically release a member of the Commission from the obligation to carry out the oath of office by discharging the duty to sit and determine applications allocated to that member. As his Honour went on to state (at 352) [and that's a reference to Mr Justice Mason]:

'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.'" (Transcript, 30/3/00, page 45.)

In the case Re Keely and Another; Ex parte Ansett Transport Industries (Operations) Pty Ltd and Others (Exhibit F5):

"Whether the course which his Honour pursued was open to him, or a wise one, having regard to the nature of the proceedings, and whether the airlines were justified in resisting his Honour's requests are not questions which I have to answer. The question is whether, in conducting the proceedings as he did, Keely J apparently exhibited prejudice against the applicants. Undoubtedly, the intervention of his Honour carried with it the risk that it might be misconstrued. As Holroyed Pearce LJ observed in Brassington v Brassington [1962] P 276 at 282:

'There are moments when a court may well feel that an indication of the court's point of view may be valuable and helpful to the parties. But such an intervention is always fraught with dangers. To a judge's mind it is axiomatic that any view which he may hold before the conclusion of the case is merely provisional, and that if any evidence or argument subsequently appears which makes his present view of the case untenable he will abandon that view. But litigants often do not appreciate this. They may mistake a provisional view for a concluded prejudgment.'

But his Honour was careful to indicate upon numerous occasions that he had not made up his mind upon any question and that his inquiries were exploratory only." [Transcript, 30/3/00, pages 46 and 47.)

TEMCO submitted that it was permissible during the course of proceedings for a tribunal to form and express tentative views, subject to the evidence and argument to be produced, without providing a basis for an apprehended bias claim to be made, and such was the case in this matter. TEMCO further submitted that the comments of the Commission, as relied on by the Metals Union, were all made prior to continuing discussions between the parties with a view to a settlement by agreement before arbitration. In such circumstances TEMCO said, on the basis of the precedents quoted, it could not be said that the Commission was bringing a prejudiced mind to the hearing.

TEMCO said the Commission's comments clearly were qualified and subject to submissions and evidence at hearing, and were an attempt at reaching a settlement between the parties, not an indication of bias or prejudice.

TEMCO pointed out that the Act does not restrain a Commissioner from proceeding to arbitrate a dispute after having previously conducted conferences and conciliation proceedings with the parties. In this context, TEMCO quoted from Section 20 of the Act as follows:

"(The Commission) ... shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties ...",

and submitted that the Commission was doing precisely that which is inherent in the concept of conciliation.

TEMCO also relied on excerpts from a decision of the Full Court of the Industrial Court of South Australia (Exhibit F6) illustrating the dichotomy in the roles of conciliators and arbitrators.

The Metals Union, in response, said that the last comment of the Commission in question (transcript, 23/11/99, page 11), on an objective test, viewed by the parties and the public reasonably, elicited a clear suspicion that the Commission had reached a concluded view.

Jurisdiction

The AWU challenged the jurisdiction of the Commission to hear this dispute on the grounds that the subject matter of the dispute more properly came under the provisions of the Workplace Health and Safety Act 1995 (the Safety Act) and, in any case, the subject matter of the dispute was covered by the provisions of the TEMCO Workplace Agreement 1999 (the agreement) which had been registered with the Commission in November 1999 in accordance with Section 55 of the Act.

The AWU quoted Sections 57, 22 and 26 to 32 of the Safety Act which provided for a number of processes by which codes of practice could be implemented by employers after certain ministerial references and approvals had been made. The AWU submitted that such requirements had not been fulfilled and, in any case, indicated that all these matters were outside the jurisdiction of the Commission and hence it should not proceed to hearing.

The AWU submitted on the basis of Sections 31(2)(b) and 58(2) of the Act, read in conjunction, the Commission ought to look upon the prescriptions in the agreement (as to proposed changes) as though they had the authority of an award and hence, because of the proscription in Section 29 of the Act, the Commission should not in effect amend the agreement by an order.

The AWU said the TEMCO workforce generally considered changes such as those proposed should be made under the agreement or a further enterprise agreement.

In response, TEMCO refuted the submissions of the AWU and referred to the agreement at Clause 17, paragraph 4, Definitions:

"DEFINITIONS
Major Work Practice Changes

Any change to the way in which employees can work which may have a significant impact on areas such as occupational health and safety, workforce numbers, roles and duties of employees (*eg need for re-evaluations) or Award provisions."

TEMCO pointed out that the definition related to changes in the way of work not to conditions of employment and therefore jurisdiction was available to the Commission and it was not bound to follow the terms of the agreement in that regard.

As to the alleged requirements under the Safety Act, TEMCO submitted that it gave guidance only in respect to the matters in question, the word "may" was used in the Safety Act concerning those measures which were discretionary and not prescribed or required.

TEMCO produced copies of a pamphlet entitled "A Guide to the Workplace Health and Safety Act" which was produced by the Workplace Safety Board of Tasmania, a body set up under the Safety Act to administer its implementation. TEMCO read extracts from the pamphlet which stated that codes of practice, in particular, were not mandatory, only that failure to implement such a code meant the onus of the duty of care in safety fell directly on the persons responsible. "In other words, codes of practice are advisory; if a person can better meet the duty of care imposed on them, it is appropriate and lawful for them to do so." (Exhibit F7.)

TEMCO pointed out that in this case it was not the award or the agreement that was involved, but, TEMCO's right to implement a policy so long as it did not impinge on any other area of law. Relying on the definition of "industrial matter" specified in Section 3 of the Act:

"'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(a)  a matter relating to -

     (i)  the mode, terms and conditions of employment; ... ".

TEMCO said that such was the situation with this application and it was clearly within the province of the Commission, quoting Section 42 of the Act which states:

"An award has effect subject to the provisions of any Act dealing with the same subject-matter."

TEMCO pointed out that the award was not a factor in this case so the overriding effect of any other Act, including the Safety Act, was irrelevant.

TEMCO relied on the case AMI Toyota Limited and Others v Association of Draughting, Supervisory and Technical Employees and Others (Print G6214) (Exhibit F8) which declared that under the terms of the Conciliation and Arbitration Act 1904, which, in relation to the meaning of "industrial matter", was very much the same as the provisions in the Act; occupational health and safety issues were matters connected with the relationship of employer and employee and hence within the jurisdiction of the Commission.

In reply, the AWU rejected TEMCO's argument that the definition of Major Workplace Practice Changes in the agreement related only to changes in the way of working, saying that further on in the same definition it said:

" ... which may have a significant impact on areas such as occupational health and safety ..." (transcript, 30/3/00, page 30),

which clearly indicated that such matters were within the ambit of the agreement and hence were required to be the subject of agreement between the parties.

The AWU also dismissed TEMCO's reliance on the AMI Toyota Limited case because that related to the making of an award, whereas the present case did not. Moreover, the AWU said, it was noted further in that case that health and safety matters were properly the responsibility of a designated authority, not a body such as the Commission.

The CFMEU and the CEPU supported the AWU's submissions as to jurisdiction.

Disqualification

I reject the submissions of the Metals Union that, on the grounds of apprehended bias, I should disqualify myself from continuing to hear these applications. I generally accept the submissions of TEMCO in this regard, especially for the following reasons:

• at all times my statements included the proviso that they were subject to the formal hearing and whatever was raised there, in other words, they were tentative statements, not conclusive;

• the statements were made in the context of continuing conferences and conciliation prior to a formal hearing which has not yet commenced;

• in the light of the previous paragraph and the precedents raised by TEMCO, I consider it my duty to proceed to the completion of the matter before me.

As to the statements themselves, in consideration of what had come to light off the record and in an effort by way of conciliation to steer the parties to a settlement, the Commission considered it fair the unions were warned that, objectively and reasonably, the task of proving their case was a difficult one, but, (and I believe this to be the key factor) not impossible, because at all times the Commission was aware that a full hearing had not yet taken place and possibly not all arguments or facts had been brought forward.

Jurisdiction

The Commission also rejects the submissions of the AWU as to jurisdiction. It is clear from the provisions of the Safety Act and the pamphlet issued by the relevant Board that an individual employer is not bound legally to implement or accept those provisions, they are merely advisory, not mandatory.

Add to the foregoing the submissions of the Association in relation to an "industrial matter" and the relations between an employer and an employee, which I accept, and it is clear that the Commission is within its jurisdiction in proceeding to hear these applications.

The Commission accepts also that the provisions of the agreement in Clause 17 "Work Practice Change Procedures" relied on by the AWU, relate specifically to the ways of working, not the fitness or otherwise of employees when they attend work. I find that TEMCO's proposals are not restricted by the terms of the agreement nor do they infringe its provisions. For these reasons, the submissions of the AWU as to jurisdiction are rejected.

The hearing will proceed at a date to be fixed.

P A Imlach
COMMISSIONER

Appearances:
Mr G Cooper (23/11/99), Mr P Baker (28/2/00, 22/3/00, 30/3/00), Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, with Mr D Schreuder (23/11/99) and Mr R Grueber, Jennings Elliott (30/3/00).
Mr W FitzGerald (23/11/99, 28/2/00, 22/3/00, 30/3/00) with Mrs A Murfet (28/2/00, 22/3/00), Australian Mines and Metals Association (Incorporated), Ms L Van Jager (23/11/99, 28/2/00, 22/3/00), Mr G Hannon (28/2/00), Mr J Whiteford (30/3/00) and Mr B Moore, Mallesons Stephen Jaques (22/3/00, 30/3/00), for Tasmanian Electro Metallurgical Company Pty Ltd.
Mr R Flanagan (28/2/00, 22/3/00, 30/3/00), The Australian Workers' Union, Tasmania Branch with Mr C Riley (22/3/00, 30/3/00) and Mr J Dawson (30/3/00).
Mr K Becker (23/11/99, 28/2/00), Mr J Reece (28/2/00, 22/3/00, 30/3/00) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, with Mr G Clarke (23/11/99), seeking to intervene.
Mr C Hinds (28/2/00, 22/3/00, 30/3/00), Construction, Forestry, Mining and Energy Union, Tasmanian Branch with Mr C Hogan (22/3/00), seeking to intervene.

Date and place of hearing:
1999
November 23
George Town

2000
February, 28
March, 22 and 30
Hobart