Killen v SafeWork NSW and NSW Rural Fire Service (No 2) [2021] NSWIRComm 1011

Industrial Relations Commission New South Wales Medium Neutral Citation: Killen v SafeWork NSW and NSW Rural Fire Service (No 2) [2021] NSWIRComm 1011 Hearing dates: 23 November 2020 Date of orders: 9 February 2021 Decision date: 09 February 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: In view of the opinions expressed in conciliation I recuse myself from further hearing this matter Catchwords: INDUSTRIAL LAW – conciliation – objection to exercise of arbitration powers by member who conciliated – Industrial Relations Act s 173 – whether s 173 applies – recusal for apprehended bias Legislation Cited: Industrial Relations Act ss 3, 173 Cases Cited: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078 Sydney Water Corporation v the Australian Services Union (New South Wales and ACT Branch) [2005] NSWIRComm 305; 146 IR 388 Category: Procedural rulings Parties: James Killen (Applicant) SafeWork NSW (First Respondent) New South Wales Rural Fire Service (Second Respondent) Representation: Representatives: B Trainor (Applicant) M Fleeton (First Respondent) O Fagir (Second Respondent) Solicitors: PSA Legal Services (Applicant) Clayton Utz (Second Respondent) File Number(s): 2019/00188389

Judgment 1. Following my decision in Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078 I made directions for the filing of material and submissions to prepare this matter for arbitration. Having reviewed the material filed I considered it appropriate to attempt conciliation of the matter. That process seemed to me to accord with the objects set out in s 3 of the Industrial Relations Act 1996 (NSW) (the Act) and in particular paragraphs (a), (b), (g) and (h) of that section. 2. The matter was listed for directions on 21 July 2020 at which time I invited the parties to consider conciliation. The parties ultimately agreed to attempt conciliation and accordingly the matter was listed on 23 November 2020 for that purpose. Conciliation was not successful. Further directions were made to prepare the matter for arbitration. The parties were also directed to advise the Commission whether there was any objection to me continuing to hear the matter. 3. By email dated 27 November Mr Trainor advised that the applicant objected under s 173 of the Act to me hearing this matter. 4. Section 173 provides: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because— (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 1. It seems to me that the right to object provided under s 173(1) is limited by the terms of s 173(2). In this matter it is probable that the terms of s 173(2)(a) apply so that no right of objection exists. I do not need to determine that question to finality because I have decided to recuse myself applying the general principles relating to apprehended bias set out in the oft cited case of Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337. At [7] the majority said: The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. 1. There are considerations which limit the application of this principle when considering its application to decision makers outside the judicial system. Some factors relevant to the application of the principle in the context of this Commission were identified in Sydney Water Corporation v the Australian Services Union (New South Wales and ACT Branch) [2005] NSWIRComm 305; 146 IR 388 at [37]. 2. In this case having regard to the views expressed in conciliation, and having regard to the application made by the applicant, I consider it appropriate to recuse myself from further hearing the matter.