s.306E - Application for a regulated labour hire arrangement order

Application by Mining and Energy Union re Maules Creek

Application for a regulated labour hire arrangement order - recusal application - apprehended bias - attempted reliance on parliamentary debates - parliamentary privilege -Secure Australian Jobs Plan - whether a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question the Member is required to decide - whether apprehension reasonable - recusal application dismissed

• [1] In these proceedings the Mining and Energy Union ("MEU") seeks a regulated labour hire arrangement order in respect of Skilled Workforce Solutions (NSW) Pty Ltd ("Skilled"), along with a host employer, Maules Creek Coal Pty Limited ("Maules Creek"). The substantive application was filed under section 306E of the Fair Work Act 2009 (Cth) ("the Fair Work Act") on 11 October 2024.

• [2] On Wednesday 26 March 2025, Skilled, along with Programmed Skilled Workforce Limited ("Programmed"), filed the within application ("the current recusal application"), which seeks orders that I be recused from matter LH2024/22, and that it be remitted to a different Member of the Fair Work Commission ("the Commission"). As indicated above, Skilled is a party to the substantive proceedings. Programmed is not.

• [3] For the reasons that follow I have decided to dismiss the recusal application.

• [4] The matter is being heard together with two other applications by the same applicant, in relation to the same host employer (matters LH2024/20 and 21). These three matters relate to the Maules Creek Open Cut Mine.

• [5] The President of the Commission issued Directions on 25 October 2025, allowing for, inter alia, the parties to file and serve their materials.

• [6] The President issued further Directions on 30 January 2025, providing for materials in reply to be filed by email to my chambers, and for the matter to be listed before me in Sydney on 7 and 8 April 2025. A notice of listing was also issued.

• [7] On 11 February 2025, the solicitors for Skilled wrote to my chambers seeking an adjournment of the hearing on the grounds that counsel was not available on those dates. On 13 February my chambers responded stating the matter would go ahead on 7 and 8 April subject to further direction or order to the contrary, indicating that the solicitors could file an application for an adjournment, and any supporting affidavit, if they wished to do so, and noting that representative unavailability is not usually grounds for adjournment.

• [8] On 17 February 2025, the solicitors for Skilled filed an application seeking an adjournment, with a supporting affidavit of the responsible partner, Mr Brad Popple, affirmed the same date. The application and affidavit raised no grounds for adjournment other than counsel's unavailability. The affidavit confirmed that counsel's unavailability was a matter that had been before the Commission prior to the President issuing his directions of 30 January 2025, which as stated above listed the matter for 7 and 8 April. There being no additional grounds providing a basis for me to depart from an earlier decision of the President, I decided to dismiss the application for adjournment. My chambers notified the parties of this on 26 February 2025 and invited any party wanting written reasons to make their request within three business days. No party did so.

• [9] During March 2025, my chambers sought the parties' attitudes as to certain interlocutory matters, as well as to whether there would be any objection to the parties being granted permission to be legally represented.

• [10] On Friday 14 March 2025, one of the two applicants in this current recusal application, Programmed Skilled Workforce Limited, along with two other entities, filed an application seeking that I be recused from another matter that had been commenced under section 306E of the Fair Work Act, matter number LH2024/14 ("the LH2024/14 recusal application"). That matter relates to a different coal mine. The two other applicants in that application were and remain parties in matter LH2024/14.

• [11] In support of the LH2024/14 recusal application, Programmed and the other two applicants filed an affidavit of Mr Popple affirmed 14 March 2025 ("the LH2024/14 affidavit"), annexing two excerpts from the Hansard of the House of Representatives in the Australian parliament, both from 2021, and a print out from the Prime Minister's website entitled Secure Australian Jobs Plan, also bearing a date in 2021.

• [12] I listed the LH2024/14 recusal application for 18 March 2025 and gave an ex tempore decision that afternoon. On the morning of 19 March 2025, which was the first day of hearing in the substantive matter, the monitoring service advised my chambers that the solicitors for the applicants in that recusal application had requested the transcript. They also advised that the transcript provider's workload might prevent the transcript from being provided on a same-day basis. In light of that advice, I issued a written decision that morning, Mining and Energy Union [2025] FWC 779. The applicants (for the LH2024/14 recusal application) have sought to appeal the decision.

• [13] As stated above, the within application was filed on 26 March 2025, along with the supporting affidavit of Mr Popple affirmed the same date. This recusal application is in materially identical terms as the LH2024/14 recusal application filed twelve days earlier. The affidavit of Mr Popple of 26 March is in materially identical terms as his supporting affidavit for the LH2024/14 recusal application.

• [14] When filing this application, the applicants' solicitors stated, in correspondence to my chambers of 26 March 2025:

"The form of the application and the supporting affidavit are materially identical to that filed by our clients in matter LH2024/14, which was heard by the Deputy President on 18 March 2025 and the subject of a decision published on 19 March 2025.

In those circumstances, we are content for this application to be determined on the papers, including by the Deputy President having regard to the submissions filed on 18 March 2025, and the transcript of the hearing."

• [15] On the same day, 26 March 2025, my chambers circulated the application to the parties in this matter and in the two matters being heard with it, inviting them to indicate, for programming purposes, whether any other party intended to make a similar application, whether any party wished to be heard in relation to the application, and whether any party wished to request an oral hearing.

• [16] The substantive applicant, the MEU, filed written submissions opposing the recusal application and indicated it did not seek an oral hearing.

• [17] No other party in any of the three matters:

• filed materials in relation to the recusal application;
• indicated an intention to file a commensurate application in relation to the other two matters; or
• requested an oral hearing in relation to the recusal application.

• [18] Given the application and affidavit are materially identical to those filed in LH2024/14, and no party seeks to adduce any other evidence, the legislative framework, grounds, and evidence are the same as described in Mining and Energy Union.[1] I need not repeat the relevant passages here.

• [19] I have considered Mr Popple's affidavit of 26 March 2025 on the same basis that I had earlier considered his affidavit, in materially identical terms, of 14 March 2025.

• [20] The applicants for the within application filed no written submissions in support of it. At their request, set out above, I have considered the written submissions they filed on 18 March 2025, and the oral submissions made at the hearing on the same date, as applying, with necessary alterations, to this application.

• [21] The substantive applicant submits that the application is without merit. It submits that the matters raised were appropriately considered in my earlier decision, regarding the LH2024/14 recusal application, and that the application should be dismissed for the reasons set out in that earlier decision.

• [22] The application and supporting affidavit are materially identical to those filed in the LH2024/14 recusal application. There is no other evidence before the Commission in relation to this application. The parties do not seek an oral hearing. The submissions do not raise any substantive new matters. Considering the foregoing, I have decided to determine this application on the papers.

1. In the circumstances, I adopt the reasoning set out in my earlier decision, and I make findings in materially the same terms in relation to this application.[2]

• [24] Self-evidently, at least one of the applicants has been aware of the matters forming the basis of this application since at least 14 March 2025. Likely, both of them can be taken to have known of those matters, given they are represented by the same firm. Given my reasons and findings above, though, it is not necessary for me to consider whether there has been any acquiescence by not taking objection sooner.[3]

• [25] I now turn to my conclusion, and the disposition of this application.

• [26] A claim such as the one made in this application is serious. It must be distinctly made and clearly proved. That has not occurred.

• [27] In light of the reasons and findings I made in Mining and Energy Union [2025] FWC 779, which I have adopted in relation to this application, I do not consider that the fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question of whether an order should be made in relation to Skilled under section 306E of the Fair Work Act.

• [28] I would fail in my duty to sit were I to accede to this application and recuse myself.

• [29] It follows that the applicants have not established that the orders sought should be granted. The recusal application is dismissed.

[1] [2025] FWC 779.

1. [2] Mining and Energy Union [2025] FWC 779. As indicated above, I issued the written decision rapidly, on the morning of the substantive hearing, to assist the parties given potential transcript delays. A stray "and" appears in paragraph [44]. The relevant part of that paragraph should read "... at that time, that provides part of a basis on which ...". Also, the phrase "officer holder" in paragraph [102] should be "office holder."

[3] Michael Wilson & Partners Limited v Nicholls [2011] HCA 4, [76] (Gummow ACJ, Hayne, Crennan and Bell JJ).

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