Bulletin No: 105 Volume: 20 Wednesday 14 May 2014
To ALL UFU MEMBERS
MFB AGAIN FAILS TO CHANGE THE COMMISSIONER
HEARING TERMINATION CASE
Fair Work Commissioner Wilson has refused MFB’s request that he “excuse” himself from hearing the MFB’s applications to terminate the MFB UFU Operational Staff Agreement 2010 and the MFB UFU ACFO Agreement on the basis of “apprehended bias”.
“Apprehended Bias” is a claim that a fair-minded observer would conclude that the decision-maker is unable to impartially hear and determine the matter.
The MFB had written to Commissioner Wilson asking him to “excuse” himself from hearing the matter claiming that there were possible circumstances of “apprehended bias” arising out of events and conduct the Commissioner may have seen in his capacity as Commissioner assisting with MFB UFU disputes and bargaining conferences.
The MFB said there was nothing the Commissioner had previously done or said that would indicate any bias, and did not pinpoint any specific issue or conduct that they were concerned about but claimed they wanted to prevent a situation arising where he could be “embarrassed” by being in a position where he may be required to make findings in the termination applications which involved matters he may have witnessed as a result of his role and the exercise of the ordinary functions as a Commissioner in previous disputes, bargaining and conferences.
This is the second failed attempt by the MFB to change the decision-maker hearing their applications to terminate the Agreements.
Last month the MFB unsuccessfully applied to have the case heard by a Full Bench of the Fair Work Commission instead of one Commissioner.
The Fair Work Commission President Justice Ross refused that application and the matter remained with Commissioner Wilson.
It was only then that the MFB then wrote to Commissioner Wilson asking him to “excuse” himself on the basis of apprehended bias and this application was heard last week.
The Commissioner has refused to “excuse” himself in a lengthy decision on the basis that the MFB failed to put before him any evidence of where his role as Commissioner in previous matters may result in apprehended bias.
Commissioner Wilson found that “since the MFB gives no detail or evidence of the events it refers to, or how those events may prejudice future hearings, and since it makes no argument about any aspect of my conduct, or what I have said or decided” that the MFB had failed to meet the threshold to claim apprehended bias and to have the Commissioner excuse himself from the case.
The termination applications will continue to be heard by Commissioner Wilson over 20 days in July 2014.
The MFB is required to provide its witness statements and outline of legal submissions to the UFU this Friday.
The MFB cancelled a bargaining meeting for the operational staff agreement this week claiming staff were too busy preparing the evidence for the termination applications.
Strength in Unity
READ OUT AT MUSTER AND PIN ON NOTICE BOARD
Authorised by Peter Marshall, Branch Secretary