s.185 - Enterprise agreement

Application for approval of the Cosmic Group PTY LTD Enterprise Agreement 2025-2029 - Recusal application - Application dismissed

• [1] In these proceedings, Cosmic Australia Pty Ltd (the Applicant) seeks approval of the Cosmic Group PTY LTD Enterprise Agreement 2025-2029 (the Agreement). In the application, no unions were involved. On 1 September 2025, the Construction, Forestry and Maritime Employees Union (the CFMEU) informed my chambers that it sought to be heard on the application on the basis that it had members who would be covered by the Agreement.

• [2] On 26 September 2025, the CFMEU filed a recusal application, which seeks orders that I be recused from matter AG2025/2770, and that it be remitted to a different Member of the Fair Work Commission.

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

• [4] On 19 September 2025, the Applicant applied for approval of the Agreement, their Form F17 noting two individuals as employee bargaining representatives. The Agreement was made on 10 August 2025.

• [5] The application was allocated to my chambers on 26 August 2025, and my chambers issued correspondence to the Applicant and bargaining representatives raising issues which may prevent the Agreement's approval on 27 August 2025.

• [6] On 1 September 2025, the CFMEU sought to be provided with the material in the application, along with any correspondence between the Commission and the Applicant, on the basis that the CFMEU was seeking to be heard on the application. Chambers directed that the Applicant provide a list of employees covered by the proposed Agreement who were eligible to vote, and that the CFMEU provide a list of employees who are its members. On 2 September 2025, the Applicant provided a confidential list of their employees and a covering email advising that they believed that the CFMEU did not have coverage of the relevant employees with two further attachments. This was not copied to the CFMEU, presumably because it contained the confidential employee list. The Applicant should have sent two separate emails: one to chambers containing the confidential list of employees, and the other to all parties advising that they believed the CFMEU did not have coverage and including relevant attachments. On 3 September 2025, the CFMEU submitted a confidential list of its members with a covering email, noting that it was attempting to confirm at least two other CFMEU members and detailing the actions underway to do so. This correspondence sent by the CFMEU to the Commission, which contained information that went beyond a mere reference to attaching confidential information, was also not copied to the Applicant and this should also have been separated.

• [7] On 4 September 2025, at 4:48pm, following the parties' provision of the relevant lists, my chambers confirmed that the CFMEU had members who were covered by the proposed Agreement who were eligible to vote, and advised the parties accordingly. In the same correspondence, my chambers advised the parties that it had received objections in relation to whether the CFMEU had coverage under its rules. Accordingly, chambers issued directions:

• for the Applicant to provide more fulsome submissions and material in support of their objections regarding whether the CFMEU had coverage by 4pm on 11 September 2025;
• for the CFMEU to provide a response to these submissions and this material by 4pm on 18 September 2025; and
• noting that the matter would be listed for hearing on 8 October 2025.

• [8] On 4 September 2025, I had a day of personal leave. Additionally, during the period of 27 August 2025 to 19 September 2025, my chambers were in transition to a new associate, who was in training, and there were two other associates providing overlapping relief coverage.

• [9] At 4:30am on 11 September 2025, I received news that precipitated the immediate commencement of a period of personal and bereavement leave.

• [10] On 11 September 2025, at 11:25am, the Applicant provided their material to chambers ex parte and without submissions and did not provide their response to the CFMEU. The Applicant was in breach of paragraph [9] of the directions, which directed the parties to serve their submissions and statements on the other party by the required date.

• [11] On 15 September 2025, the CFMEU enquired directly with the Applicant, without copying in chambers, as to why it had not been served material, and noted that it would likely be required to seek an extension.

• [12] On 16 September 2025, the Applicant replied, copying in chambers, stating that they had provided submissions to the Commission and expected that the Commission would serve their submissions on the CFMEU. Following receipt of this reply that same day, my chambers, in my absence, served the submissions and materials on the CFMEU, advised the Applicant that they were in breach of the directions instructing them to serve their materials on the other party, and advised the CFMEU that it was at liberty to apply for an extension. My chambers forwarded through all the attachments from the Applicant's 11 September 2025 email but did not forward the email itself. I am unable to explain why, as I was on leave. The CFMEU subsequently sought an extension of time to lodge material, which was granted as sought prior to the filing of this recusal application (see paragraph [15] that follows).

• [13] On 19 September 2025, the Applicant informed chambers and the CFMEU that the Applicant had erred: in their 11 September 2025 email, the Applicant had mistakenly attached chambers' directions, rather than the Applicant's own submissions. Accordingly, the Applicant attached their submissions to this (19 September 2025) email with the objective of fulfilling their service obligations per the directions.

• [14] On 22 September 2025, the CFMEU sought a further extension and reiterated that it required the lodgement material and any correspondence between the Applicant and the Commission so that the CFMEU could provide fulsome submissions.

• [15] On 23 September 2025, the Applicant again objected to the lodgement material and correspondence being served on the CFMEU where there was a dispute as to whether the CFMEU had coverage. Chambers also granted the CFMEU's extension as sought and informed the parties that chambers would respond in due course regarding the request for production.

• [16] On 26 September 2025, the CFMEU lodged the Form F1, applying for orders that I recuse myself from the matter, accompanied with a supporting witness statement. I returned from leave on 29 September 2025.

• [17] In its application, the CFMEU alleges that my conduct in relation to the proceeding to date gives rise to a reasonable apprehension of bias. The CFMEU alleges this occurred in several ways. In brief, the CFMEU submits that:

• • on 1 September 2025, the CFMEU requested a copy of the Commission's file. The CFMEU submitted that the documents are public documents and should be freely available unless exception circumstances exist;[1]

• whilst the CFMEU indicated its wish to be heard on 1 September 2025, it had not yet particularised its request;
• my chambers responded to the CFMEU's request for documents on the same day it was received (1 September 2025), seeking a confidential list of members from the CFMEU and of employees from the Applicant;
• the CFMEU complied with this requirement on 3 September 2025;
• on 4 September 2025, my chambers notified the parties that the Applicant had disputed the CFMEU's entitlement to represent the interests of the employees covered by the proposed Agreement and issued directions for dealing with this objection;
• on 11 September 2025, I received a "detailed and lengthy" ex parte communication from the Applicant containing:
  • submissions about the CFMEU's standing in the proceedings and its rights generally;
  • a request that I direct the CFMEU to provide the Applicant's legal representative with a relevant list of its members on a confidential basis; and
  • its materials in accordance with the directions of 4 September 2025;
    • in its evidence, referring to excerpts from the 11 September 2025 email;
• I did not forward to them the email received by my chambers whilst I was on leave;
• the email from my chambers of 16 September 2025 - referred to at paragraph [12] - painted an "incomplete picture" in that it did not include the covering email of the submissions by the Applicant;
• on 22 September 2025, the CFMEU requested a copy of the 11 September 2025 email and all other ex parte communications between the Commission and the Applicant;
• on 23 September 2025, my chambers acknowledged this request and indicated that it would respond "in due course";

• • the CFMEU has brought to my attention the Commission practice note for fair hearings;[2] and

• my conduct, "in:
  • not providing the file in accordance with established principle;
  • requiring the CFMEU to establish that it [is] entitled to represent the interests of the employees covered by the proposed agreement prior to providing the file;
  • receiving the ex parte communications;
  • providing a response to the CFMEU request for material that was filed that was not complete or accurate; and
  • not providing copies of the ex parte communications,

individually and/or cumulatively, gives rise to a reasonable apprehension of bias because a reasonable person would perceive that [I am] not dealing with the parties on an equal footing and [am] apparently determined to continue to do so."

• [18] Deputy President Wells in Roberts v VIEW Launceston Pty Ltd and ors [2015] FWC 1858 provided a summary regarding apprehended bias and the right of recusal:

"[10] As to the general principle of bias, the High Court relevantly remarked in Re JRL Ex parte CJL:

'... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties as set out and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.'

[11] In addition, the High Court held in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337:

'The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.'"

• [19] At the final dot points of paragraph [17], the CFMEU lists a number of actions as either individually or cumulatively giving rise to this application.

• [20] In the case management of this matter, my chambers followed a process to establish the CFMEU's status in bargaining which was not in any way a breach of appropriate protocols. It is a matter for me to decide which parts of a file I will make available to parties depending on their status in the application, guided by relevant authorities. I was in the process of determining and acting upon this request, delayed only by my leave and not for any other reason, when this application was made. The CFMEU was advised by my chambers that I was on leave within an hour of filing the recusal application on 26 September 2025 and yet the application remains pressed.

• [21] I note that the covering email to the Applicant's list of employees about which the CFMEU complains was not made available to them and was not copied to the CFMEU by the Applicant; likewise, the covering email from the CFMEU with its list of members was also not copied to the Applicant by the CFMEU (see paragraph [6]). It is safe to assume both parties did not copy each other in due to the confidential attachments. It is also the case that both parties should have filed the covering email on each other, given that the content of both emails went beyond simply referring to the confidential lists attached. To this extent, both parties were in breach of my directions and the practice note pointed to by the CFMEU.

• [22] There was no attempt by my chambers to hide the Applicant's objections from the CFMEU. Indeed, those objections were explicitly referred to in chambers' correspondence to the parties issuing directions and providing the parties an opportunity to state their case. In the circumstances of my absence - having regard to the confidential nature of attachments to the email in question and the number of associates dealing with correspondence - it is my view that, at worst, an administrative oversight occurred. That oversight would have (and has been) addressed on my return from leave and actions would have been taken (and have been taken) to ensure all parties have access to the information to which they are entitled in order for the matter to proceed any further. Further, the period of my leave was relatively short and the unavoidable delay was a matter of days, not months. I reject that there could possibly be any logical connection between the administrative oversight that occurred in my absence and my ability to impartially deal with and decide the matters before me.

• [23] In respect of the remainder of the CFMEU's submissions, I wholly reject them. The case management of this matter could simply not progress further in circumstances where I was on a period of leave that precluded me from dealing with the substantive requests of the CFMEU for, again, a relatively short period of time.

• [24] Consequently, the recusal application is rejected as it does not establish any factors of apprehended bias which would affect my ability to decide the matter other than on its legal and factual merits. It is not possible, in circumstances where I have been absent on a period of leave, that I have acted in the manner alleged by the CFMEU. As a result, I am not satisfied that a lay observer would conclude that my determination of this matter would be absent of impartial decision making. In my view, the CFMEU has acted impatiently and inappropriately in making the present application.

• [25] The recusal application is dismissed and further directions will issue from my chambers in order to progress dealing with the substantive matter.

J Liley, Senior National Legal Officer, for the CFMEU

[1] CFMEU v Ron Southon Pty Ltd [2016] FWCFB 8413 at [28]. See also Ditchfield Mining Services Pty Ltd [2019] FWCA 661 at [15].

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