CASE PROCEDURES – apprehension of bias – ss.577, 578, 789FC Fair Work Act 2009 – application for an order to stop bullying – applicant Chairperson of Executive Board of Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) – respondent strongly rejected allegations – submitted that applicant not ‘worker’ as defined by FW Act – conduct did not occur in context of applicant being at work – further submitted if allegations may be factually correct, should be regarded as reasonable management action carried out in reasonable manner – submitted application vexatious and abuse of process – Commission conducted two day conciliation conference – agreed by parties that details of discussions at conference would be kept confidential on basis that Commission would subsequently issue summary of any observations and recommendations arising from conference – Commissioner submitted that this was opportunity for parties to raise any concerns about conduct of conference and so Commission would be able to act as conduit for proposals – merit or otherwise of application and responses not discussed and no new proposals, information and concerns advanced by either party – feedback on caucus discussion was summarised by Commission to full conference – Commission subsequently issued comprehensive ‘Statement and Recommendations’ – document made no findings or assessment of merit or otherwise of application or responses – did not canvass jurisdictional objections raised by respondent parties – made recommendations that drew upon apparent implications of APY Act and common objectives revealed by parties during course of conference – submissions sought from parties in relation to various procedural matters – one of those matters was to provide an opportunity for parties to raise concerns about Commission – respondent considered would be more appropriate and fair that another Commissioner hear argument and determined evidence – applicant indicated no reason for Commission not to continue with matter, ‘at very least until the Jurisdiction and the Johnston Withers retainer by APY matters were dealt with…’ – Commission considered whether should recuse from further dealing with application – Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia considered – no principle that Member will always disqualify themselves because of what they may have been said or done at earlier stages of proceedings – likewise no principle that extends to (automatic) disqualification because of what has been said or done in conciliation conferences – Commission found that recommendations dealt with implementation of largely agreed and sound decision-making and governance practices rather than what might be considered to be matters principally directed to the prevention of workplace bullying – Commission found no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of the questions that the Commission is required to decide – Commission considered not necessary or appropriate to recuse from continuing to deal with application – directions leading to hearing and determination of relevant preliminary jurisdictional objections issued. Yawirki Adamson v King and Ors
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