TWU v J McPhee & Son (Aust) Pty Ltd [2001] NSWIRComm 195

TWU v J McPhee & Son (Aust) Pty Ltd [2001] NSWIRComm 195

The application for disqualification was rejected because the mere raising of a question about whether the reinstatement issue should revert to the Full Bench did not give rise to a reasonable apprehension of pre-judgment or bias. The s173 objection was premature because the proceedings remained in conciliation and the real question was whether there was anything left to arbitrate. Once the 18 July agreement for an alternative process fell apart, the reinstatement issue concerning the three originally dismissed employees was already before the Commission by way of appeal and, absent agreement, there was no issue in these dispute proceedings available for arbitration. It was therefore...

Jurisdiction
Australia
Judgment Date
30 August 2001
Procedural Posture
Notification Under S130 by the Transport Workers' Union of Australia, New South Wales Branch of a Dispute Concerning Refusal to Reinstate Dismissed Staff / Dispute Proceedings in Conciliation Concerning Request for Certificate of Attempted Conciliation, S173 Objection, Apprehended Bias Application, and Whether Proceedings Should Be Terminated
Outcome
Apprehended bias application rejected; s173 objection held premature; proceedings terminated as to the reinstatement issue concerning the three employees originally dismissed; certificate of attempted conciliation to issue for the residue of the dispute concerning the fourth employee's dismissal and the warning...
Legal Topics
['conciliation and Arbitration Proceedings' 'certificate of Attempted Conciliation' 'section 173 Objection' 'apprehended Bias' 'termination of Proceedings' 'reinstatement of Dismissed Employees']
['industrial Relations' 'industrial Dispute Procedure'] ['conciliation and Arbitration Proceedings' 'certificate of Attempted Conciliation' 'section 173 Objection' 'apprehended Bias' 'termination of Proceedings' 'reinstatement of Dismissed Employees']

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Procedural Posture

Notification Under S130 by the Transport Workers' Union of Australia, New South Wales Branch of a Dispute Concerning Refusal to Reinstate Dismissed Staff / Dispute Proceedings in Conciliation Concerning Request for Certificate of Attempted Conciliation, S173 Objection, Apprehended Bias Application, and Whether Proceedings Should Be Terminated

Legal Issues

  1. 1 ['Whether the Commission should issue a certificate of attempted conciliation in relation to the reinstatement issue concerning the three employees originally dismissed by McPhee.' "Whether the TWU's objection under s173 of the Industrial Relations Act 1996 prevented Peterson J from dealing with the question whether the proceedings should be terminated." 'Whether Peterson J should disqualify himself on the basis of apprehended bias.' 'Whether there remained any issue in the original dispute available for arbitration after the agreement reached on 18 July fell apart.' "Whether a certificate of attempted conciliation should issue for the residue of the dispute concerning the fourth employee's dismissal and the warning issued to another employee."]

Ratio Decidendi

The application for disqualification was rejected because the mere raising of a question about whether the reinstatement issue should revert to the Full Bench did not give rise to a reasonable apprehension of pre-judgment or bias. The s173 objection was premature because the proceedings remained in conciliation and the real question was whether there was anything left to arbitrate. Once the 18 July agreement for an alternative process fell apart, the reinstatement issue concerning the three originally dismissed employees was already before the Commission by way of appeal and, absent agreement, there was no issue in these dispute proceedings available for arbitration. It was therefore...

Court Disposition

Apprehended bias application rejected; s173 objection held premature; proceedings terminated as to the reinstatement issue concerning the three employees originally dismissed; certificate of attempted conciliation to issue for the residue of the dispute concerning the fourth employee's dismissal and the warning...

Orders

  • ['The application for Peterson J to disqualify himself was rejected.' 'The matter was terminated to the extent that it concerned the three employees originally dismissed.' "A certificate of attempted conciliation was to be issued in respect of the residue of the dispute concerning the fourth employee's dismissal and...