WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DEZE BUCU, ALFRED KEITH HAYNES, JOSE JUJUNOVICH, BRIAN CONNORS, APPELLANTS v. MIDLAND BRICK CO PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER S J KENNER DELIVERED THURSDAY, 2 MAY 2002 FILE NO/S. FBA 59 OF 2001 CITATION NO. 2002 WAIRC 05462 _________________________________________________________________________________________________________ Decision Dismissed Appearances Appellants Mr B Stokes, as agent Respondent Mr A J Power (of Counsel), by leave, and with him Mr B Di Girolami (of Counsel), by leave _________________________________________________________________________________________________________ 744 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an appeal by the abovenamed four appellants against the whole of the decision of Commissioner Wood, given on 19 November 2001 in matters numbered 789, 790, 817 and 849 of 2000. The appeal is brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”). The order appealed against is an order that applications made by the abovenamed appellant employees against the abovenamed respondent employer be dismissed. The appeal is made on the following grounds (see pages 2–3 of the appeal book (hereinafter referred to as “AB”)):- 1. “The learned Commissioner erred in law in that he failed to adequately set out the findings of fact on which his conclusions depended and the reasoning processes which led to those conclusions in that:- (a) the termination of the Applicants was pursuant to section 40 of the Minimum Conditions of Employment Act 1993 (MCEA) on the ground of genuine redundancy even though the learned Commissioner found as a fact that the maintenance work undertaken by them was subsequently performed by contractors; (b) the Respondent had complied with the Common Law requirement to discuss the prospective redundancies with the Applicants by firstly in 1998 discussing with them the need for change in general terms and by secondly entering into extensive discussions with their union regarding redundancies prior to Commissioner Kenner’s redundancy order in early April, 2000; (c) section 41 MCEA had been complied with by the Respondent even though, on all the evidence, there was no discussion between Mr. Terry Halgavsen, Mr. Vince Gain and each of the Applicants individually on the 17 May, 2000 (or at all) concerning the criteria set out in sub-section (2) of that section; (d) no unfairness arose in the making or implementation of the Respondent’s decision to close the main workshop and abolish the Applicants’ positions even though the learned Commissioner found as a fact that the Respondent did not engage in any or any adequate selection process; (e) the applicants had failed to discharge the onus of proving that others (shift fillers or contractors) should have been selected for redundancy in preference to them had the Respondent employed pre-determined and fair selection criteria (f) the applicants had failed to prove a connection between— (i) earlier pressure from management for them to enter into WPA’s; (ii) the cessation of all their overtime and its re-allocation to contractors; (iii) the Respondent’s antipathy towards the applicants’ union; (iv) the granting of a redundancy order by Commissioner Kenner to the Respondent on the 4 April, 2000; (v) their unexplained return to the main workshop shortly before it was closed on the 17 May, 2000, when the Respondent claimed no intention at that stage to close the main workshop, and (vi) the Respondent’s discrimination of the applicants in favour of more expensive contractors, and their termination, even though on the evidence a reasonable inference could be drawn that the closure of the main workshop was to effect their termination and not to save costs or reduce the Respondent’s workforce size; and their termination, even though on the evidence a reasonable inference could be drawn that the closure of the main workshop was to effect their termination and not to save costs or reduce the Respondent’s workforce size; (g) the Respondent was unlikely to be in a position to effect alternate employment for the applicants even though some shift fitters were employed after their termination, and (h) the termination of the of the applicant Connor was fair even though he was certified fit for light duties only under section S4AA of the Workers’ Compensation & Rehabilitation Act, 1981 as amended at the time of termination. 2. The learned Commissioner failed to make any or any adequate finding of fact as to whether— (a) after the 17th May, 2000 the Respondent allocated their duties or any of them to contractors or shift workers; (b) the applicants or any of them were qualified and able to perform such maintenance work and should have been offered an opportunity to undertake same, and (c) the Respondent’s failure to offer them such work or to give them any preference for re-employment to perform those duties was in all the circumstances unfair. 3. The learned Commissioner erred in law in failing to find that the applicants were unfairly dismissed given the Respondent’s proven lack of prior consultation with the applicants, its failure to engage in any selection process, the return of the applicants to the main workshop shortly before its closure and its failure to consider them for or employ them in alternate duties or offer them any preference for re-employment”. APPLICATION TO ADJOURN 2 At the commencement of the hearing of this appeal, an application was made, on behalf of the appellants by Mr B F Stokes, the agent for the appellants, to adjourn the hearing of the appeal because the respondent’s list of authorities and list of the numbers of transcript pages to be relied on, and 11 pages of submissions were received by him three hours after the time had expired for filing the same, at 3.02 pm on Friday, 15 March 2002 when the appeal was listed for hearing on Monday, 18 March 2002 at 10.30 am. In addition, Mr Stokes submitted that there were 42 pages of transcript referred to by the respondent to which the appellants had not referred or was not referring. He said that he had read the entire transcript before he drafted the grounds of appeal, but he did not have time to get to the Commission to read the transcript on Friday, 15 March 2002. His written notes were not detailed enough and he would not have time to have access to the transcript at the Commission on Friday, 15 March 2002. There would, of course, be time on the morning of the hearing. He also sought to adjourn, because, put simply, he was not ready to proceed. In short, this was said to allow insufficient time over the weekend to allow the submissions and authorities to be considered. 3 First let me observe that there were two days and more available for him to work on this matter including the authorities and submissions over the weekend before the matter was heard. Working over weekends in order to prepare a case is certainly not 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 745 unexpected in relation to the duties of advocates and I am surprised that the availability of those two days for preparation was ignored. 4 Second it was the duty of the advocate to take adequate notes at first instance if his principal could not afford transcript, so that there would be a proper record available in order to prepare for any appeals. 5 Third, the written submissions did not, on any major basis, go beyond the grounds of appeal. Further, the direction requiring the provision of an outline of written submissions and a list of authorities from one side to the other is not meant to be a substitute for the proper preparation of the case by one party or the other. 6 In my opinion, there was ample opportunity, after the submissions were made available, indeed more than 48 hours, and the time could and should have been used by the agent to prepare. Advocates are expected to prepare adequately to discharge their duties and to ensure that they have the requisite material including a library or other access to authority to do so. 7 The application had, in my opinion, no merit and should not have been made. In any event, it was remediable, if it were at all necessary to do so, which was not the case, by allowing the agent for the appellants to lodge a written reply, which the Full Bench so allowed. APPLICATION TO AMEND 8 At the hearing of this appeal, the Full Bench raised with Mr Stokes, the advocate for the appellants, obvious ambiguity in ground 1 of the grounds of appeal. 9 The ambiguity was because whilst the clearest meaning of the ground was an allegation that inadequate reasons for decision were provided, so that by implication, the statutory duty to provide reasons for decision was not complied with, the particulars had a flavour of allegation of errors in fact finding or errors in failing to consider relevant factors. 10 Mr Stokes then made application to amend ground 1 to allege in the alternative that errors in fact finding had occurred. 11 The application was opposed by Mr Power (of Counsel) for the respondent on the basis that at a late stage the appellants were seeking to argue an appeal on an entirely different basis, in effect a new and different appeal. In any event, the proposed amendment would still, in my opinion, have led to ambiguity, if not confusion. It was quite clear, particularly in a jurisdiction where the ability to compensate in costs for an adjournment is limited, that it would be unjust to the respondent to permit such a major amendment at such a late stage in the proceedings. I would add that whilst the Commission is not a court of pleading, that the grounds of appeal must be drafted so as to enable the other side to know what case it faces on appeal. Regulation 29(2) and (3) of the Industrial Relations Commission Regulations 1985 (as amended) reinforce that. For that reason, I joined in the decision to dismiss the application to amend. BIAS 12 In the course of proceedings, the agent for the appellants made an oral application that a member of the Full Bench, Commissioner S J Kenner, should disqualify himself from further hearing the appeal. Submissions were made and heard and Commissioner S J Kenner declined to disqualify himself from sitting on the Full Bench to hear the appeal. Insofar as it is competent, necessary or appropriate for me to express an opinion I concur with the decision of Commissioner S J Kenner. BACKGROUND 13 The four abovenamed appellants, who were employed by the abovenamed respondent, alleged that they were unfairly dismissed on 17 May 2000 by the respondent and each claimed reinstatement or 26 weeks’ compensation. 14 They allege that they were unfairly dismissed because:- (a) There was no consultation regarding redundancy prior to the terminations. (b) There was no opportunity to apply for other positions within the company. (c) There was no opportunity to become a contractor doing maintenance work for the company. (d) There was no real redundancy as the workshop is still operating. (e) The maintenance work of the company was still required to be done and was being done by contractors. 15 Further, one of the abovenamed appellants, Mr Connors, claimed that there was a summary dismissal and that at the time of the termination he was on light duties following a lower back injury sustained on 24 January 2000. 16 Mr Bucu had worked for the company for 19 years and one month and was employed as a fitter/welder in the main workshop. Mr Haynes had been employed for 10 years and seven months and was a boilermaker/welder in the main workshop. Mr Jujunovich had been employed for 23 years and four months and was a boilermaker/welder/fitter in the main workshop, and Mr Connors was employed for 16 years and five months as a fitter/first class welder in the main workshop. Each claimed that he was employed under the terms of the Metal Trades (General) Award 1966. 17 The respondent alleged that they were employed pursuant to orders of Commissioner Kenner issued on 4 April 2000, these orders being the Midland Brick Company (Maintenance) Order 2000 and the Midland Brick (Maintenance – Redundancy) Order 2000. It is common ground that, following conciliation, the orders relating to the redundancy and retrenchment of employees including the abovenamed appellants were made to reflect an agreement reached between the respondent employer and unions ((ie) organisations representing employees including the organisation representing the appellant employees). The Commission made a finding that they were aware that the relevant organisation was representing the appellants in these proceedings, before Commissioner S J Kenner. 18 The appellants alleged that the redundancies were implemented pursuant to the second order. They alleged further that the order provides that where management decides that a section or area is to be “outsourced/subcontracted” or closed within the existing employees being made redundant, the company is to simply inform the employees of the decision and then make payments in accordance with the order at the time of termination of employment. 19 It was not in issue, at first instance, that the orders covered the employment of the applicants. The applicants, however, said that their termination was not a redundancy. Accordingly the Commission listed the matter for hearing, in the first instance, on the issue of whether there was a redundancy. The Commissioner at first instance found that each of the applicants was made redundant, and the question then arose as to how to deal with the remainder of the merit of the applications. In paragraphs 29, 30, 31, 32 and 33 (pages 46-47 (AB)) the Commissioner at first instance observed that he had already formed the view that s.41 of the Minimum Conditions of Employment Act 1993 (hereinafter referred to as “the MCE Act”) had been complied with to the extent that each applicant was advised as soon as practical after the decision to make their jobs redundant was taken. It was clear from his findings that they had been made redundant, that their jobs had gone, that the workshop was closed down, that the contractors had not taken over their jobs and this was against the general background of reduction of costs and staff at Midland Brick. 746 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 20 The issue raised by the applicants was that there had been no opportunity to become contracted doing the maintenance work for the company. Thus, the unchallenged evidence was that the number of contractors had reduced substantially on site. The applicants had not sought to apply for work with the contractor. 21 The matter then came on for the Commission to deal with the question of the unfairness, or otherwise, of the dismissals on 17 May 2000 and reasons for decision in relation thereto issued on 19 November 2001. 22 The grounds for claiming unfair dismissal were similar in that each said:- (a) There was no consultation regarding redundancy prior to termination. (b) There was no opportunity to apply for other positions within the company. (c) There was no opportunity to become a contractor doing maintenance work for the company. (d) There was no real redundancy since the workshop was still operating. (e) The maintenance work of the company was still required to be done and was being done by contractors. 23 The Commissioner at first instance observed that the “bulk of what is yet to be determined is whether in simple terms the applicants should have been chosen or someone else” (see page 50 (AB)). 24 At page 52 (AB), the Commissioner held that there was no evidence brought forward by any of the applicants to satisfy a finding that someone else should have been chosen instead of them, and that they had simply failed to make out their case in that regard. He also held that the applicants were covered by the order of Commissioner Kenner of April 2000 and their redundancy payments were prescribed in that order. He said that this was very clear and apparent from his earlier reasons for decision. He also held that the applicants, notwithstanding their argument of the contrary, had been informed of the order of Commissioner Kenner and that they were also part of the main workshop to which the order applied. 25 The Commissioner also held that irrespective of the earlier redundancy order of the Commission the respondent was bound to comply with the MCE Act and he held that the respondent had complied with the requirements of the MCE Act. The reasons for so finding were advanced at paragraph 22 (page 53 (AB)). 26 The Commissioner also dealt with the Workers’ Compensation and Rehabilitation Act 1981, s.84AA. He held that s.84AA did not provide job protection for Mr Connors for 12 months. GROUNDS OF APPEAL 27 There is a statutory duty on the Commission to give reasons for decision imposed by s.35 of the Act. 28 It is not necessary that the reasons for decision deal with every matter which might have been raised in the proceedings. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned (see FMWU v FCU and Others (1985) 65 WAIG 2033 at 2034 (IAC) per Brinsden J). 29 The reasons for decision must be such that a person understands why a decision went against her/him and, in particular, whether it involved errors of fact or law. Therefore, the decision should involve the setting out of the Commissioner’s understanding of the relevant law, any findings of fact on which its conclusions depend (especially if those facts are in dispute) and the reasoning processes which led to those conclusions. This should be done in clear and unambiguous language (see Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913 at 914 and Dornan and Others v Riordan and Others 95 ALR 451 at 455–460). 30 A failure to state reasons for decision as required by s.35 and defined in Ruane v Woodside Offshore Petroleum Pty Ltd (op cit) and Dornan and Others v Riordan and Others (op cit) constitutes an error of law, which will be corrected on appeal. 31 In this case, the Commissioner at first instance gave two sets of detailed reasons for his decision to find a redundancy and his decision to dismiss the application. 32 I now turn to the particulars of the allegations that the reasons for decision were deficient. Ground 1 33 Ground 1(a) is in fact an allegation that the Commissioner at first instance erred in the finding which he made that maintenance work undertaken by the appellants, for the respondent, was subsequently performed by contractors because he failed to find that there was a “genuine redundancy” which the termination of the appellants was “pursuant to section 40 of the Minimum Conditions of Employment Act 1993”. 34 The fact of the matter is that the Commissioner found that the applicants were made redundant. He made it clear in evidence that he accepted the evidence of Mr Ryan in preference to that of the applicants on certain issues (see page 46, paragraphs 27– 29 (AB)), but his findings were based on their evidence too, and he expressed this. 35 Having canvassed the evidence in those paragraphs and clearly identifying the evidence of the use of contractors, and the evidence that the “majority” of the work ((ie) which was previously performed), was no longer being performed, the main workshop having been closed and “redeployed”, the Commissioner found that there was a redundancy within the meaning of s.40 of the MCE Act. 36 Significantly, in that evidence, there was the evidence of Mr Ryan that 50% to 70% of the work previously done by the main workshop is not done by anyone anymore. He also found that their jobs had been made redundant and that, implicit in that finding, he said, was “the view” that contractors had not taken over their positions (see paragraph 31 of page 47(AB)). Counsel for the respondent drew our attention to that passage. 37 It must be borne in mind that ground 1(a) alleges that the Commissioner at first instance erred in law because he failed to adequately set out the findings of the fact on which his conclusions depended on the reasoning processes which led to those conclusions. Then as a particular, he says that that failure was constituted by the fact that the applicants’ employment was made pursuant to s.40 of the MCE Act, on the ground of genuine redundancy, even though the Commissioner found as a fact that the maintenance work undertaken by the appellants were subsequently performed by the contractors. 38 There was no finding that the maintenance works undertaken by the applicants were subsequently performed by contractors. In fact, the Commissioner made a finding, (see paragraph 31, page 47(AB)) that the contractors had not taken over the positions of the appellants. Further, the Commissioner did not make a finding at all based on the complaint which was made in this ground. The finding which he has alleged to have made, he did not make, and the ground is misconceived and has no merit. 39 There is no challenge in the grounds as they are framed to the adequacy of the reasons given for the finding of redundancy as defined in s.40 of the MCE Act. 40 I do agree with the submission that in order to properly express a finding that there was a redundancy as defined in the MCE Act, s.40, the Commissioner had to find:- (a) That the employees were no longer required by the employer to continue doing a job. He so found. 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 747 (b) That the employer has decided that the job was not to be done by another person. It is clear enough from the reasons that he so found. (c) That this occurred for a reason that is not a usual reason for change in the employer’s workforce. That was not expressly found but was found by implication from the findings expressed. (d) There was however no finding in the terms alleged in ground 1(a) (see also paragraphs 31 and 32 (page 47(AB)) and paragraph 2 (page 49(AB))). 41 I am not persuaded that there is any merit in that ground for those reasons. Ground 1(b) 42 Ground 1(b) alleges that the respondent had complied with the common law requirement to discuss prospective redundancies with the applicants by discussing with them the need for change in general terms, and secondly, by entering into extensive discussions with their union regarding redundancies prior to Commissioner Kenner’s redundancy order in early April 2000. 43 This does not at all constitute an allegation that there was inadequacy of reasoning. Again it has the appearance of an allegation of an error in findings of fact. 44 Counsel for the respondent drew our attention to paragraph 30 (pages 46–47 (AB)) of the reasons for decision where clear and specific findings were made about the advice of, and processes and likely changes, including redundancy which were to occur with specific reference to the processes and discussions in which the union representing the appellants was involved and unions were involved on behalf of employees, including the appellants. 45 The Commissioner at first instance therefore gave perfectly clear reasons for the finding which he made, that the appellants were being informed of imminent redundancies and were aware of them. Ground 1(c) 46 I now turn to ground 1(c). By that ground it is alleged there was deficiency in the reasoning expressed for the conclusions reached in that s.41 of the MCE Act had been complied with by the respondent even though on all of the evidence there was no discussion between Mr Terry Halgeson, Mr Vince Garn (sic) and each of the applicants individually on 17 May 2000 (and all concerning the criteria set out in s.41(2) of the MCE Act. 47 Again that is a complaint as to an error in a finding of fact. 48 Even if it is not, the Commissioner makes it clear that the crux of Mr Bucu’s complaint was that he was paid an inadequate redundancy payment. 49 Reasons concerning his findings as to the compliance with s.41 of the MCE Act are expressed in detail and clearly at paragraphs 20 and 21 (page 53(AB)) and were quite adequate. Ground 1(d) 50 I now turn to ground 1(d). 51 By that ground it is alleged that there was a deficiency in the expression of findings and reasons in that no unfairness arose in the making of or implementation of the respondent’s decision to close the main workshop and abolish the applicants’ positions, even though the learned Commissioner found, as a fact, that the respondent did not engage in any or any adequate selection process. As Mr Power submitted it is manifest that no such finding was made. In any event, this again is a particular which alleges an error in a finding of fact, putting it at its best. 52 Further, the Commissioner found that the respondent, having closed the workshop, was not likely to be in a position to effect much by way of alternative employment for the applicants, a finding which was not challenged on appeal. 53 The Commissioner also refers to the order made in the Commission by consent to provide for redundancy payments to which the appellants’ union and the respondent were parties. 54 I refer also to the findings which I have already referred to in paragraph 29 (page 46 (AB)) and paragraph 32 (page 47 (AB)), as well as paragraph 21(page 53 (AB)) of the supplementary decision of the Commissioner at first instance where unchallenged findings were made as to the negotiations between the respondent and unions, the order of Commissioner S J Kenner, referred to above, and offers of counselling and out placement services to employees, including the appellants. Ground 1(e) 55 By this ground, it is alleged that the reasons are deficient in that the Commissioner at first instance had concluded that the applicants had failed to discharge the onus of proving that others (shift fitters or contractors) should have been selected for redundancy in preference to them, had the respondent employed predetermined selection criteria. There was no challenge to this primary finding of fact which was clearly made and the reasons for which were clearly given. Ground 1(f) 56 This ground is expressed again more as an attack on findings of fact than as a complaint about the inadequacy or otherwise of reasons. (a) As to ground 1(f)(i), the Commissioner at first instance found:- “The case run by the applicants, is a suspicion that the company was trying to get rid of them, because they refused to sign workplace agreements, or were too old. This part of the applicant’s case has simply not been proven”. (b) The Commissioner clearly characterised the case run by the applicants as a suspicion, (I emphasise the word “suspicion”), that the company was trying to get rid of them because they were too old or because they refused to sign workplace agreements. In the absence of any cogent submission, (which there has not been), that the case was run not on the basis that it was a not suspicion, there is no apparent requirement for any more detailed finding. The Commissioner found, therefore, that the standard of proof had not been satisfied and adequate reasons were given for so finding which were not challenged. (c) Again there was no finding in the terms alleged in ground 1(f)(ii), paragraphs 27, 31 and 32 (pages 46-47 (AB)) for the reasons of the decision, contain relevant and adequate findings which were also not challenged. (d) No finding was made in the terms alleged in ground 1(f)(iii). (e) As to ground 1(f)(iv), insofar as to make it necessary to make any finding, such a finding was adequately covered by the findings in paragraph 30 (pages 46-47 (AB)), where relevant and adequate findings were made referring to Commissioner S J Kenner’s order, as part of the processes which is included in negotiation and indeed conciliation relating to redundancies (and retrenchments). 748 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. (f) Insofar as it was necessary to make any finding this was adequately covered by the findings in paragraph 30 (pages 46–47 (AB)). 57 As to ground 1(f)(v) that is dealt with in paragraphs 31 and 32 (page 47 (AB)) and paragraph 20 (pages 52-53 (AB)) to which I have already referred above. There is no merit in that ground. 58 As to ground 1(f)(vi), that ground has already been dealt with in the conclusions which I have reached in relation to ground 1(f)(i) to (v). There is no merit in that ground. Ground 1(g) 59 By this ground, it is alleged that the reasons were defective in that the respondent was unlikely to be in a position to effect or terminate employment for the applicants even though the shift fitters were employed after their termination. 60 Again this was not a particular of the allegation that the reasons expressed were deficient. Further at page 53 (AB), paragraph 21, the Commissioner at first instance clearly makes findings which seem to him that there was little scope to employ. 61 He clearly also finds that the order by its contents, and the fact of the negotiations which led to its making, in any event, clearly emerged and covered the circumstances in which the applicants were placed, namely redundancy. Ground 1(h) 62 I do not understand this ground. 63 The Commissioner made findings on Mr Connor’s evidence and that of the progress medical fitness certificate, at the time of his termination, that he was on light duties, and was assessed as being fit for restricted duties (see page 508 of the transcript at first instance). 64 The Commissioner found that s.84AA of the Workers’ Compensation and Rehabilitation Act 1981 did not operate as a prohibition of the termination of the employees’ employment. The decision of Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951 (FB) was applied and the meaning in it adopted in support of that finding. 65 I do not see how the reasons in respect to the finding that s.84AA of the Workers’ Compensation and Rehabilitation Act 1981 did not prohibit the termination of Mr Connors’ employment, were not adequately expressed because they were the submissions that the law might have been otherwise irrelevant to the ground. Ground 2 66 That ground is essentially a complaint that no finding or adequate findings of fact were made. They are similar complaints to ground 1. The findings on pages 53, 55 and 56 (AB) adequately dispose of that ground. Ground 3 67 This ground can be simply disposed of. The ground is misconceived. It impliedly alleges errors based on findings of fact which are impliedly criticised. However, the primary findings of fact themselves are not at all challenged so that there can be no basis in the allegation contained in that ground. The ground is simply not made out. COMMISSIONER S J KENNER: 68 By this appeal the four appellants challenge a decision of Wood C, in which decision he dismissed unfair dismissal applications brought by them at first instance. 69 The grounds of appeal as filed, and which stood for the purposes of the prosecution of this appeal, at grounds one and two, allege that the Commission at first instance, failed to adequately set out findings of fact and its reasoning processes leading to conclusions reached by it, in dismissing the appellant’s claims. Ground three of the grounds of appeal, is somewhat different and for the reasons expressed by the President with which I agree, it must fail. 70 As to grounds one and two, it is well settled that by s 35 of the Industrial Relations Act 1979 (“the Act”) the Commission is obliged to give reasons for its decisions. The extent of this duty is set out and explained in Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913 at 914. For the reasons expressed by the President and with which I agree, the Commissioner at first instance did not fall into error by failing to comply with the duty imposed upon him by s 35 of the Act, in the context of the principles explained in Ruane. I would therefore dismiss the appeal. 71 The other matter necessary for me to deal with, was the application made by the industrial agent for the appellants Mr Stokes, that I disqualify myself from sitting on this Full Bench, on the grounds of ostensible bias. 72 This application was, as I understood it, based upon the following. Mr Stokes submitted to the Full Bench that because I issued an order in April 2000 by consent, between the AMWU, of which apparently the appellants were members, and the respondent, dealing with an agreement reached between that union and the respondent as to redundancy matters, (“the Order”) I must have, in being prepared to issue the Order, formed a view as a result of conciliation proceedings, that the Order was fair and reasonable and should therefore be made. I understood this to be relevant because, according to Mr Stokes, an issue arose during the evidence in these proceedings below, about the quantum of severance payments payable under the Order. There was some suggestion by Mr Bucu, one of the appellants, to this effect. Reference was made to this by the Commissioner at para 20 of his reasons for decision dated 19 November 2001 at 53AB. Further in para 21 at 53AB, the Commissioner said that “What the argument for the applicants suggests is that the agreement made and the Order issued to cover these circumstances was somehow inadequate. This argument is wrongly based in my view.” 73 I note that the appellants alleged their dismissals by the respondent at first instance were unfair based on some five grounds, none of which grounds touched upon the issue of the adequacy or otherwise of the severance payments made pursuant to the Order. It is also important to observe at this stage that none of the grounds of appeal advanced by the appellants go to the merits of this issue at all. As I have noted above, the grounds of appeal, save for ground three, only go to the adequacy of the reasons for decision of the Commissioner. 74 The nub of Mr Stokes’ application that I disqualify myself on the ground of ostensible bias was, as I understood it, that the appellants would in some way perceive that I would be “defending” the terms of the Order. Exactly how this perception would arise or upon what it was based was not developed in the appellants’ submissions. I should emphasise that there was no suggestion by Mr Stokes of any actual bias in relation to the particular circumstances of the appellants as they arose before the Commission at first instance. 75 I also note, importantly in my view, for reasons that I set out below, that the application by Mr Stokes that I disqualify myself from sitting on this Full Bench was not made at the outset of the appeal. The application for disqualification was made some way into the appellants’ case, after the Full Bench had been invited and did consider two applications by the appellants, the first to adjourn the appeal proceedings and the second, to substantially amend the grounds of appeal. Both applications were determined against the appellants. Mr Stokes in submissions, appeared to recognise that he had raised the application to 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 749 disqualify on the grounds of ostensible bias at “such a late date” (transcript at 22) and said that “it only just occurred to me” (transcript at 23). 76 Principles as to Disqualification for Bias 77 For it to be established that ostensible, as opposed to actual bias, exists, the test is that it must be established that a reasonable observer may apprehend that the decision-maker might not or would not resolve the issues in question with a fair and unprejudiced mind. In Vakauta v Kelly (1989) 87 ALR 633 the High Court considered the relevant principles applicable to objections on the grounds of actual or ostensible bias. In that case, which involved the assessment of damages in a personal injuries action, the trial judge made certain observations about doctors called to give evidence on behalf of the insurer, prior to that evidence having been given. The High Court upheld the appeal and found that whilst the trial judge’s comments did not established a case of actual bias, his remarks constituted ostensible bias, as they would excite in the minds of the parties and in members of the public, a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him. In the judgement of the court, Dawson J set out the relevant principles at 37-38 and whilst it is a lengthy quote I set it out in full: “The relevant principle is that laid down in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-63; 9ALR 551, and applied in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; 47 ALR 45, namely, 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. Of course, where there is actual bias, then, a fortiori, a judge ought not to sit. Although it is not necessary to refer to previous cases to establish the principle, now that it has been authoritatively stated, there is guidance to be found in those cases as to the manner in which the principle is to be applied. The lack of impartiality which is alleged in this case is not said to have arisen from any interest in the outcome of the case; it is based upon the preconceived views which the trial judge had about the defendant’s witnesses and the real defendant, the GIO. Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J in R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639, “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”. And in this court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge “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”. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 372; 66 ALR 239, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. This is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does. Unfortunate or not, it is virtually unavoidable that a judge, sitting in a jurisdiction such as that in which the trial judge was sitting, should form some view concerning a party appearing in case after case and of the expert witnesses habitually called by that party. But, as was pointed out in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 546 at 554, a fair and unprejudiced mind “is not necessarily a mind which has not given thought” to relevant matters or one which, having thought about them, “has not formed any views or inclination of mind upon or with respect” to them. The question is, therefore, not whether the learned trial judge had preconceived views arising from his previous experience, but whether his preconceptions were such a kind or where so expressed as to lead a reasonable person to apprehend that he was unable to approach the resolution of the case in a fair and even-handed manner without any inclination towards one side or the other.” 78 (See also: Re Polites and Another; Ex parte the Hoyts Corporation Pty Limited and Others (1991) 173 CLR 78 for an example of the application of these principles in an industrial setting). 79 It is also the case that the right to object on the grounds of ostensible bias may be expressly or impliedly waived. A person knowing of the circumstances from which ostensible bias might be inferred and being aware of the right to object should make an application for disqualification at the earliest opportunity. If a person fails to do so, it may be held that the person is taken to have waived the right to make an objection: Nickleseekers v Vance (1986) 1 Qd R 266. In Vakauta v Kelly (1988) 13 NSWLR 502 McHugh JA said at 528-532— “If a party or his legal representative knows of circumstances which would disqualify a judicial officer from hearing a case but permits the case to proceed to decision, he waives his right to set aside the decision unless he was unaware of his right of objection. Moreover, he may waive his right in some cases event though objection is taken before a decision is made. If, with knowledge of the circumstances and his right to object, a party or his legal representative permits the case to continue for a period before taking objection, he may be held to have waived his right to have the case determined by an impartial adjudicator. Whether or not a party who has delayed in making an objection has waived his right will depend on all of the circumstances of the case. They will include the nature of the disqualifying factor, the extent of any financial or other prejudice to the other party if the hearing is terminated, the reason for delaying the objection, and the period for which the hearing has continued since the objecting party became aware of his right to object”. 80 The question of waving the right to object on the grounds of bias was also considered by Dawson J. in Vakauta (HC) when he said at 640— “There is abundant authority which establishes, at all events in civil cases, that a party may waive his right to object on the ground of bias. As Hood J said in Re McCrory; Ex parte Rivett (1895) 21 VLR 3 at 6: “A litigant who knows (as the applicant did here) that there may be some objection to the constitution of the Bench is bound to mention it at once, in fairness both to the magistrate and to the other side, and even if the objection be a good one the litigant cannot afterwards be allowed to complain if with knowledge he remains silent…” 81 See also R v Cheltenham Commissioners [1841] 1 QB 467; 113 ER 1211; “The Vernon” (1864) 1 QSCR 119; Raven v Burnett (1895) 6 QLJ 166; R v Byles; Ex parte Hollidge (1912) 108 LT 270; R v Essex Justices; Ex parte Perkins [1927] 2 KB 475; In the Marriage of Murphy and Armstrong (1978) 35 FLR 482; Nickelseekers v Vance [1985] 1Qd R 266. 82 In Re Alley; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 60 ALJR 181 at 182; 64 ALR 6 at 7, this court said— “The law has, in the past, taken a strict view of the consequences of the failure of a party to object to the participation in proceedings by a member of a tribunal who is said to be biased. In some cases it has been held that 750 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. a party entitled to object to the participation of an adjudicator, disqualified by interest or likelihood of bias, will be deemed to have waived that entitlement if, being fully aware of the circumstances, he fails to object as soon as is reasonably practicable. In other cases it has been held that a party failing to take objection may be refused relief if he seeks a discretionary remedy. The question whether it is possible to waive a right of this kind raises interesting questions which is not necessary to consider here.” 83 The guarded manner in which the court expressed itself in that case does not, I think, throw any doubt upon the possibility of waiver of the right to object on the ground of bias in a civil trial. Cf R v Watson; Ex parte Armstrong (CLR at 263). In my view, where a party in civil litigation, being aware of the circumstances giving rise to object, allows the case to continue for a sufficient time to show that he does not presently intent to exercise that right, he may be held to have waived it.” 84 A recent restatement of the relevant principles in relation to disqualification on the grounds of bias, including waiver, is to be found in the judgement of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 at 279; 309-310. 85 In my opinion, the appellants in this matter waived their right to bring an application that I disqualify myself on the grounds of the ostensible bias. The application to disqualify was not brought at the outset of the appeal proceedings, which was the first opportunity to do so. The appellants were represented by an experienced industrial practitioner. Mr Stokes himself recognised the late stage at which he brought the application to disqualify, to which I have referred above. Very importantly also in my opinion, going to the issue of waiver, is the fact that the application to disqualify was made after the Full Bench had ruled on two applications brought by Mr Stokes first to adjourn the appeal and secondly, to substantially amend the grounds of appeal. 86 The President in his reasons has set out the particulars of both of those applications and the reasons why the Full Bench dismissed them. In this case, it is clear from the application made by Mr Stokes that he was aware of the circumstances and of his right on behalf of his clients to bring an objection, but did not do so until after the Full Bench had partially heard the matter. More significantly, the Full Bench considered and determined two important procedural motions before the application to disqualify was made. In my view, given that the application was not made until some considerable way into the appeal proceedings, and after the appeal was determined in part by the Full Bench in the hearing and dismissal of the two applications, the appellants had impliedly waived any right to bring an application to disqualify based upon ostensible bias, consistent with the authorities to which I have referred above. 87 Alternatively, if I am incorrect in concluding that Mr Stokes had, by implication, waived the appellants’ right to bring the application for disqualification, for the following reasons, in my opinion, there was no merit in the application in any event. 88 Firstly, and most importantly, the ground upon which the appellants’ application to disqualify was brought simply does not at all arise on this appeal. That is, the grounds of appeal are confined to whether or not, the Commissioner at first instance, satisfied his statutory duty pursuant to s 35 of the Act, in accordance with the principles outlined in Ruane. The issue of the merits or otherwise of the content of the Order, as it was applied to the appellants at the time they were made redundant by the respondent, does not arise in any sense in these proceedings. That being the case, it is difficult to see any basis at all upon which a reasonable observer may reasonably apprehend that I might not, or would not, resolve the issues arising on this appeal with a fair and unprejudiced mind. The substance of the application brought by Mr Stokes, to which I have referred above, is completely irrelevant to the issues to be determined by the Full Bench on the grounds of appeal as filed. 89 Secondly, even if it was the case that the merits of the Order were raised in the grounds of appeal, which they are not, it could not be reasonably said in my opinion, that the ground of the application made by Mr Stokes constituted a circumstance that would raise a substantial case of ostensible bias. In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Dixon CJ, Williams, Webb and Fullagar JJ said at 116— 90 “It is necessary if bias is to be made out for preconceived views that the circumstances raise a substantial case. It was stated by the High Court— But when bias… is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi judicial officer has so acted that he cannot be expected fairly to discharge his duties. 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 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 would be disregarded.” 91 In this matter, there was nothing other than the making of the Order some two years ago, by consent, upon which the appellants relied. There was no submission that I had said or done anything else in connection with the Order, apart from giving effect to the parties’ agreement by issuing the Order pursuant to s 44(8) of the Act that could ground an application of ostensible bias. In my opinion, the ground advanced by Mr Stokes fell far short of establishing a substantial case, in the sense that the bias must be “real”. 92 For all of the foregoing reasons, I concluded that the appellants’ application that I disqualify myself on the basis of ostensible bias was without foundation and that I should continue to sit, hear and determine this appeal. SENIOR COMMISSIONER A R BEECH— 93 I have had the advantage of reading in draft form the Reasons for Decision of his Honour the President. I agree that the appeal should be dismissed. It states the obvious to observe that the Full Bench is only able to deal with the appeal on the grounds upon which the appeal was made. Given the reasons for decision at first instance those grounds did not disclose any error on the part of the Commission at first instance. PRESIDENT— 94 For all of those reasons, the appeal is dismissed. Order accordingly _________ 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 751 2002 WAIRC 05491