An interesting debate has commenced in the Fair Work Commission as to whether a member of the Commission who conducts a conciliation should automatically step aside from arbitrating the dispute if a party objects to their continued involvement.
The Workplace Relations Act contained a section providing that the Commission member should step aside in these circumstances. There is no similar provision in the Fair Work Act.
The issue recently came before a Full Bench on appeal. Whilst it found no error in the Commissioner’s decision not to recuse herself, it expressed the view that once a party objected “that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration.” This approach, it was suggested, promoted the conciliation process by encouraging the parties to be frank and open in the course of the conciliation conference.
However, when the matter came before the Commissioner again, she disagreed with the position of the Full Bench and ultimately decided to arbitrate the matter. In so doing she drew attention to the President’s power under section 582 to give directions as to the manner in which the Commission is to perform its functions, exercise its powers or deal with matters.
It appears that any objection will need to be argued on the basis that concessions made in conciliation will detract from the member’s ability to impartially determine the application.