Fair Work Commission|2025-03-19

Mining and Energy Union [2025] FWC 779 (19 March 2025)

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

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 judge is required to decide - whether apprehension reasonable - application dismissed

[1] The following is an edited version of a decision delivered ex tempore on 18 March 2025, to which I have added citations.

[2] In these proceedings the Mining and Energy Union seeks a regulated labour hire arrangement order in respect of Tesa Group Pty Ltd ("Tesa") and HVA Technical Services Pty Limited ("HVA"), along with a host employer, Mangoola Coal Operations Pty Limited ("Mangoola").

[3] The matter is being heard together with another application by the same applicant, in relation to the same host employer (matter LH2024/15). Both matters are listed for hearing on 19 and 20 March 2025. The parties were given notice of the listing on 30 January 2025.

[4] On the afternoon Friday 14 March 2025, Tesa and HVA, along with another entity whose standing has been attributed to their interest in the proceedings, Programmed Skilled Workforce Limited, filed an application seeking orders that I be recused from this matter and that it be remitted to a different Member of the Commission. In support of their application they filed an affidavit of a lawyer 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.

[5] I invited parties wishing to do so to file any materials in relation to the application by 2 pm on Monday, 17 March 2025, and to file any materials in reply by 10 am on Tuesday, 18 March. I listed the matter for 2 pm on Tuesday 18 March.

[6] Mangoola filed no materials, and its lawyers indicated it did not wish to be heard on the application. At its request I excused Mangoola from attending the hearing of the recusal application.

[7] The other respondent in matter LH2024/15 did not file any recusal application and nor did it file any materials in support of Tesa and HVA's recusal application.

[8] The substantive applicant did not file any materials in relation to the recusal application.

[9] The substantive application has been brought under section 306E of the Fair Work Act 2009 (Cth) ("the Fair Work Act"), which provides for the Commission to make a regulated labour hire arrangement order in certain circumstances. Section 306E was inserted by operation of section 3 and Schedule 1 item 73 of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 ("the Closing Loopholes Act"); those provisions were in effect from 15 December 2023. The bill for the Closing Loopholes Act had been introduced and read a first time on 4 September 2023. It finally passed both houses on 7 December 2023, and received Royal Assent on 14 December 2023.

[10] Section 577(1) of the Fair Work Act provides that the Commission must perform its functions in a manner that is fair and just, is quick, informal, and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.

[11] As the applicants in the recusal application has filed an affidavit annexing excerpts from the Hansard, it is also necessary to refer to the Parliamentary Privileges Act 1987 (Cth) ("the Parliamentary Privileges Act"). Section 16 of that Act relevantly provides:

16 Parliamentary privilege in court proceedings

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

[12] Section 3 of the Parliamentary Privileges Act relevantly provides:

(1) In this Act, unless the contrary intention appears:

tribunal means any person or body (other than a House, a committee or a court) having power to examine witnesses on oath, including a Royal Commission or other commission of inquiry of the Commonwealth or of a State or Territory having that power.

[13] The grounds for the application state:

At a minimum, a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the question the Deputy President is required to decide.

[14] The application does not reveal what is meant by "at a minimum." A similar phrase is used, again in passing, later in the application, but the remainder of the application is squarely directed to apprehended bias. I have considered the application on that basis.

[15] The application, after setting out the above ground, sets out matters said to give rise to such a reasonable apprehension. Those matters relate to whether I was involved in, supported, or expressed opinions in connection with something called the "Secure Australian Jobs Plan."

[16] As stated above the applicants (in the recusal application) filed an affidavit of a lawyer on the afternoon of 14 March 2025. The deponent was Mr Brad Popple, who stated that he was a partner at the firm representing Tesa and HVA, Kingston Reid.[1] His affidavit was affirmed on 14 March 2025. No other affidavits or witness statements were filed in relation to the recusal application.

[17] On the morning of Monday 17 March 2025 my chambers put the parties on notice that it would assist the Commission if their submissions could address the Parliamentary Privileges Act. The same correspondence also indicated it would assist if the parties could address whether there had been a practice of former parliamentarians who have taken up judicial office, or office in a non-curial tribunal, recusing themselves in relation to legislation that had been passed while or after they were in office. As to this point submissions were also invited as to whether any former delegates to the constitutional conventions who had joined the High Court of Australia had recused themselves in relation to constitutional interpretation matters.

[18] On Monday 17 March 2024, Tesa and HVA's lawyers wrote to my chambers declining the opportunity to put on any outline of submissions or written submissions in support of their application, or any other materials, by 2 pm on Monday 17 March, on the basis that they considered the application to have been sufficient. In that correspondence they acknowledged the matters of which my chambers had put them on notice, and indicated an intention to put on submissions in reply the following day. This carried an implicit assumption that another party or parties would file materials, to enliven the opportunity to provide a reply.

[19] Although no other party filed submissions, and so the opportunity to provide reply submissions was not enlivened, the applicants filed purported reply submissions on Tuesday, 18 March. Despite this conduct I have taken account of the applicants' submissions of 18 March.

[20] At the hearing, the substantive applicant gave submissions against recusal. The other respondent in the matter being heard with this one appeared but made no submissions as to this application, only as to programming issues if it was to be granted.

[21] It is practical and appropriate for the decision-maker to determine whether to accede to a recusal application.[2]

[22] Members of this Commission have a duty to sit. It would be inappropriate to take "the easy option" by acceding to an application for recusal without concluding it is necessary.[3] As Mason J stated in Re JRL; ex parte CJL:[4]

"... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit 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."

[23] In Livesey v New South Wales Bar Association[5] the High Court of Australia held 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."

[24] The test for apprehended bias is usually drawn from the High Court decision in Ebner v Official Trustee in Bankruptcy[6] (Ebner). A Full Bench applied the principles in Re Construction, Forestry, Maritime, Mining and Energy Union.[7] In summarising the principles from Ebner, they said:[8]

[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU's recusal application:

• the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide;

• deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction;

• the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;

• only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; and

• it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary.

[25] Another Full Bench[9] cited[10] a long passage from Middleton J in Kirby v Centro Properties Limited (No 2)[11] setting out the various principles from Ebner. The Full Bench quoted Middleton J as stating:[12]

The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.

These principles must be carefully applied. It has been said that: "... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

Needless to say, disqualification of a judge by reason of prejudgment must be "firmly established": Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.

To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues ..."

[28] Subsequently, the High Court in Charisteas v Charisteas[13] provided the following summary of the relevant principles:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

[29] In their "reply" submissions the applicants rely[14] on a passage from Regional Express Holdings Ltd & Ors v Hanson,[15] to the same effect.

[30] A fair-minded lay observer will have regard to the fact that a judicial officer's training, tradition and oath or affirmation equip the judicial officer with the ability to disregard the irrelevant, the immaterial and the prejudicial.[16] I would take this as applying, also, to Deputy Presidents of this Commission.

[31] The fair-minded observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice."[17]

[32] The fair-minded observer is also taken to have knowledge of the material facts of the case, including the material facts understood in the broader context of the proceedings where appropriate.[18] This context includes the fact that the Commission is a specialist tribunal established to deal with matters in a practical, expeditious and effective manner and the Commission is required to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.[19] Counsel for the applicants accepted this in reliance on Isbester v Knox City Council.[20]

[33] In Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction[21] the Full Bench, in citing[22] the passage from Middleton J referred to above, set out paragraphs in which Middleton J referred to various of the above qualities of the fair-minded observer, and also said:

In Sengupta v Holmes [2002] EWCA Civ 1104; [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.

[34] As can be appreciated part of the question is whether the judge (or in this case, the Deputy President) might not bring an impartial mind to the resolution of the question they have to decide. In Dennis v Commonwealth Bank of Australia[23] the Full Court observed that it is prejudgment, not predisposition, which engages the apprehended bias rule:[24]

"... The aspect of the apprehended bias rule in issue in this case is prejudgment. It is important to note that it is prejudgment, not predisposition, which engages the rule.

As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng:[25]

... All that was necessary to constitute bias, it was said, was an inclination or predisposition of mind. Under pressure of argument, this was qualified by the addition of adjectives such as "wrongful" or "improper". The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, some‑times approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision‑maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias."

[36] The Commission is the nation's industrial relations tribunal. Persons appointed to it generally come to the Commission with a depth of knowledge, interest, and experience in industrial relations, including as active participants in the contest of ideas. Far from disqualifying them from sitting, their prior experience is a substantial part of what qualifies them for the office. At the hearing of this matter, the decision of Re Polites; Ex parte Hoyts Corporation Pty Ltd[26] (Polites) was discussed. Counsel for the applicants pointed out that that matter had been decided before Ebner. I note that it has been cited since Ebner and still appears to be good law. In Polites, the Court said: [27]

Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting. The qualifications for appointment as a Deputy President of the Commission are prescribed by s. 10(2) of the Act. Appointments are made by the Governor-General of judges or legal practitioners (par. (a)) or persons possessing the qualifications prescribed by par. (b) or par. (c). The relevant parts of s. 10(2) read as follows:

The Governor-General may only appoint a person as a Deputy President if:

(b) the person has had experience at a high level in industry or commerce or in the service of:

(i) a peak council or another association representing the interests of employers or employees; or

(ii) a government or an authority of a government; or

(c) the person has, at least 5 years previously, obtained a degree of a university or an educational qualification of a similar standard after studies in the field of law, economics or industrial relations, or some other field of study considered by the Governor-General to have substantial relevance to the duties of a Deputy President;

and, in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as a Deputy President.

[37] Similar qualifications for appointment, as those set out in the above passage from Polites, appear in section 627 of the Fair Work Act. In Polites the court went on to say:

The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of "skills and experience" amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.,[28] their background will not necessarily lead them "to act otherwise than judicially, so far as that word connotes a standard of conduct", even though the background which carries experience and knowledge acquired extra-judicially "assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts... "

[38] In ALA15 v Minister for Immigration and Border Protection[29] the Court observed that an allegation of bias, including an allegation of apprehended bias, is a serious matter that must be distinctly made and clearly proved.[30]

[39] Having canvassed those authorities, I now turn to considering this application. At the outset it is necessary to deal with some parts of the application that must be disregarded, and some parts of Mr Popple's affidavit of 14 March 2025, that could not lawfully be admitted.

Unlawfulness of tendering evidence about, or making statements, submissions or comments about, parliamentary proceedings

[40] I marked the entirety of Mr Popple's affidavit for identification, as T1. For the following reasons Mr Popple's affidavit of 14 March could not be admitted in the terms in which it was filed. It was admitted only in part; any parts of that affidavit purporting to provide evidence of parliamentary proceedings, and any annexed excerpts from the Hansard, were excluded. Having been admitted on that basis and with those exclusions I marked the affidavit of Mr Popple exhibit A. I did not receive the material regarding parliamentary proceedings into the evidence as it would not have been lawful to do so.

[41] In their "reply" submissions, the applicants submitted that subsection 16(3) of the Parliamentary Privileges Act does not prohibit the tender of Hansard to establish, as a matter of historical fact, that something was said in Parliament. They make this submission in reliance on Leyonhjelm v Hanson-Young,[31] and on Faruqi v Hanson.[32] They also submit:[33]

The purpose of the tender is not to litigate personally, nor otherwise impugn, the Deputy President in respect of matters transacted in parliament, for which the privilege is designed to protect against. The purpose of the tender is to establish, as a matter of fact, that the statements in Hansard were made. Upon the tender of that fact, the question becomes what a fair-minded lay observer might reasonably apprehend about the Hansard statements.

[42] In Leyonhjelm v Hanson-Young,[34] Rares J said:[35]

Importantly, s 16(3)(c), in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing.

The section does not proscribe the use of what occurred in Parliament to prove the fact of that very occurrence. The making of a statement or the doing of an act in Parliament are facts in themselves, in the same way as Bowen LJ once explained that "the state of a man's mind is as much a fact as the state of his digestion": Edgington v Fitzmaurice [1885] UKLawRpCh 83; (1885) 29 Ch D 459 at 483.

[43] In this case the applicants seek to have excerpts from the Hansard admitted into the evidence not only for the purpose of establishing, as a matter of historical fact, that something was said in parliament, but also to establish what a fair-minded lay observer would take to have been the motive for what was said (namely, to prosecute the shadow cabinet policy known as the "Secure Australian Jobs Plan,") and to suggest that the fair-minded lay observer would have taken what I had said during the parliamentary proceedings as indicating that I personally regarded the situation, where people doing were doing the same job but being paid significantly less, as fraudulent or dishonest.

[44] The consequence of this is that the applicants seek to argue that because, on their case, I was speaking for the purposes of prosecuting the Secure Australian Jobs Plan in the parliament in 2021, in a way that indicated to a fair minded observer that I held the view that the situation as described above is fraudulent or dishonest at that time, and that provides part of a basis on which a lay observer might reasonably apprehend that I might not, today, bring an impartial mind to the resolution of the question that I am required to decide, specifically in relation to the provisions of subsections (2) and (8) of section 306E which go to the fairness and reasonableness of making a particular order in particular circumstances.

[45] It is, of course, in the public interest for the absolute privilege to exist, so that Members of the Parliament speak and debate freely.

[46] I need not decide whether it was unlawful for Mr Popple to swear his affidavit intending for it to be used in tribunal proceedings, or for Tesa and HVA to instruct their lawyers to file that affidavit, or for their lawyers to file it, or for them to tender it with the Hansard material included.

[47] In the circumstances I find it would be unlawful for me to admit into the evidence Mr Popple's affidavit to the extent it contained statements about what had been said in the parliament, or had annexed to it excerpts from the Hansard, having regard to section 16 of the Parliamentary Privileges Act. The affidavit has been admitted on the basis that the relevant parts are excluded.

[48] In light of that finding, I have disregarded any parts of the application making statements or comments about parliamentary proceedings, any parts of the applicants' submissions doing the same. However, as I will come to, I have also made some remarks in the alternative in the event I was incorrect as to the unlawfulness of receiving the material into evidence.

Ebner, step 1: identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits

[49] The first step is to identify what it is said might lead me to decide the substantive case other than on its legal and factual merits.

[50] The application asserts that I prosecuted the shadow cabinet policy known as the "Secure Australian Jobs Plan." However, the basis given for this assertion, in the application, is a direct quotation from Hansard, which as I have indicated is not and cannot be before me on the evidence. Accordingly, I have had to disregard those parts of the application referring to my asserted "prosecution" of the "Secure Australian Jobs Plan." But as I have also said, I have dealt with this issue in the alternative.

[51] Disregarding the parts of the application that appear to have been asserted in reliance on parliamentary proceedings, the application sets out the following in relation to the first step (the third step, reasonableness, which I will discuss below):

(b) The Deputy President is now sitting in judgment as to the application of Part 2-7A of the FW Act.

(c) The Deputy President's (and her Cabinet's) [sic] Secure Australian Jobs Plan policy singled out coal mine workers as a particular type of worker that is to be subject of the proposed policy.

(d) Coal mine workers are the subject of this proceeding.

(f) The MEU contends in this proceeding that such a situation exists, and has led uncontested evidence to the effect that there are mineworkers performing the same job, but being paid different rates of pay by employers.

[52] Having regard to the materials, while excluding comments and statements that could not be lawfully made, and material that could not be lawfully admitted into evidence, the applicants' case as articulated above appears to tacitly rely on the following claims:

The Secure Australian Jobs Plan was published in November 2021, when I was a member of the shadow cabinet.

The Secure Australian Jobs Plan is as set out in the website print-out attached to Mr Popple's affidavit.

I was bound by something called "shadow cabinet solidarity" and so the Secure Australian Jobs Plan, as a policy of the shadow cabinet, is taken to have been a policy of mine.

[53] The applicants assert that the "Westminster principle of cabinet solidarity" applies to the shadow cabinet. They assert this on the basis that the shadow cabinet is a cabinet. I do not accept the latter assertion. I do not accept that a fair-minded lay observer would consider a shadow cabinet to be equivalent to a cabinet, or to necessarily be bound by the same conventions. However, for convenience I will assume, without deciding, that the shadow cabinet was bound by an analogous convention of "shadow cabinet solidarity."

[54] Excluding the parts of Mr Popple's affidavit going to parliamentary proceedings the affidavit as admitted stated, in substance:

"1. I am a Partner of Kington Reid, and the lawyer representing Programmed Skilled Workforce Limited, TESA Group Pty Ltd and HVA Technical Services Pty Ltd above proceedings (Programmed Entities).

2. I refer to the Form F1 application filed by the Programmed Entities on 14 March 2024, and to the documents extracted therein. I now produce those documents.

Now produced and shown to me, and marked BP-1, is a copy of the Secure Australian Jobs Plan.

[55] Annexure BP-1 appears to be a print out from the now-Prime Minister's personal website, dated 15th November 2021, entitled "Secure Australian Jobs Plan." As can be appreciated from the text of Mr Popple's affidavit, he does not identify this document beyond naming it, and does not state how he came by this document.

[56] However, having invited submissions from the parties on this point at the hearing, I can take notice of the existence of a set of election commitments made by the Labor Opposition prior to the 2022 federal election, collectively referred to as the Secure Australian Jobs Plan, because that plan is referred to in the materials appended to the explanatory memorandum for the Closing Loopholes Act, on that basis.

[57] As to other assertions made in the application, without any supporting evidence, about various offices I have held, I will take notice of the following matters which I consider to be common knowledge given the nature of those offices. I am a former member of the House of Representatives, the shadow ministry, and the shadow cabinet. I was a member of the shadow cabinet for substantially the whole of the 46th parliament. I ceased being a member of the House of Representatives, and of the shadow cabinet, in May 2022. I was never a member of the Cabinet.

[58] The application asserts that the shadow cabinet "published its policy, "Secure Australian Jobs Plan," on 15 November 2021." I take this assertion to be a reference to the document annexed to Mr Popple's affidavit and marked BP-1.

[59] As to what was said in the "Secure Australian Jobs Plan," the applicants say it included the following passage:

A Labor government will uphold the principle that if you work the same job, you should get the same pay.

Labor will ensure that workers employed through labour hire companies receive no less than workers employed directly.

We have seen too many examples of companies across a variety of industries deliberately using labour hire and to undercut the negotiated pay and conditions of workers who are employed directly.

[60] They say it also included the following:

For example, coal mine workers employed through labour hire being given full time 12-month rosters fixed in advance but employed as casuals on a fixed, all-inclusive hourly rate. They work side by side with directly employed permanent full-time workers, doing the same work for the same hours, on the same roster with the same skills - but being paid around 30-40 percent less.

[61] The applicants do not appear to have argued that every utterance of every shadow cabinet minister was an utterance attributable to me. So their assertion that the Secure Australian Jobs Plan in the terms they have provided can be attributed to me from when it was published until the end of the period that I was a shadow cabinet minister relies on the acceptance of the proposition that the document annexed as BP-1 to Mr Popple's affidavit setting out only the policy with nothing extraneous, such as explanatory or persuasive material.

[62] There is nothing on the evidence to demonstrate whether the document printed from the now Prime Minister's website exclusively sets out the Secure Australian Jobs Plan, or whether it includes extraneous material (such as persuasive writing about, and advocacy, for that plan). However, given the matters of which I have taken notice above I am able to accept that there was a Secure Australian Jobs Plan adopted by the shadow cabinet in 2021 and that it was at least consistent with the document annexed as BP-1 to exhibit A.

[63] So, in relation to the first step in this process, having identified what it is said might lead me to decide the substantive case other than on its legal and factual merits, I also note there is very little evidence providing a basis for what it is said might lead me to do so.

[64] Having made those remarks about what is open on the evidence, I will now turn to the question of what else would have been open if I was wrong to find that it would have been unlawful for me to admit the parts of Mr Popple's affidavit that I considered offended against section 16 of the Parliamentary Privileges Act.

[65] Annexure BP-2 was suggested to demonstrate that a fair-minded lay observer would have considered that I held certain motives or beliefs at the time in 2021. The implication seems to me that these apprehended motives or beliefs form as basis for fearing I would not decide this case on the basis of its merits. I will deal with this further below. Annexure BP-3 to Mr Popple's affidavit does not appear to have been addressed directly in the application or the "reply" submissions. Counsel for the applicants took me to the passages he said were relevant. I will take these passages as also being referred to for the same purpose as the intended annexure BP-2.

[66] I will also now deal with the applicants' point about my sitting in judgement on cases brought under provisions inserted by the Closing the Loopholes legislation. The applicants raise this issue separately to and distinctly from their objection regarding the reference to the coal miners example in the Secure Australian Jobs Plan they have provided. This question may be more properly considered in relation to step 2, but as the applicants have addressed it in step 1, I will deal with it here.

[67] It is not clear to me why sitting in judgment of cases brought under a law that was passed well after I was no longer in the parliament is said to give rise to the relevant apprehension. The applicants' case seems to be that though I was not in the parliament when the bill for the Act was tabled, read, and passed, I was nonetheless involved in the policy that underpinned it.

[68] In this nation's history there are examples of former Ministers - not just shadow ministers - being appointed to judicial office, or office in non-curial tribunals, and being called upon to hear and decide cases under legislation in which they had been involved not only as a member of the Cabinet that approved the relevant bill, but as the Minister with portfolio responsibility for the bill.

[69] I put the applicants on notice that I wanted to hear from them about these historical precedents, citing the early members of the High Court, Higgins J of the Conciliation and Arbitration Court, and, more recently, the Barwick High Court. In their "reply" submissions they said, "with respect, this asks the wrong question." With commensurate respect, the applicants do not appear to have appreciated, at least when framing their "reply" submissions, that the question arose from the explicit terms of their own application, in which they complain that I am now sitting in judgment as to the application of Part 2-7A of the Fair Work Act.[36]

[70] The applicants may not consider that the question of whether their taking this point departs from the longstanding approach in our nation is relevant to this particular issue. I do. I will provide two examples.

[71] Firstly, the former Chief Justice of the High Court, Sir Garfield Barwick. The mere fact that he had been the responsible Minister for legislation passed while he was a member of both the parliament and the executive government did not preclude him from adjudicating matters brought under such legislation.

[72] Secondly, the second President of this tribunal's original predecessor. The mere fact that he had been a member of the parliament, and, for part of that period, a Minister, while a Conciliation and Arbitration bill was being debated did not prevent Higgins J from being the second president of the Conciliation and Arbitration Court and deciding cases brought under the Conciliation and Arbitration Act 1904.

[73] The applicants seek to explain these matters away as not meeting the standards of the present day. I do not accept the criticism of Barwick CJ or Higgins J implicit in that submission.

[74] If that higher degree of involvement in legislation - while holding office in the executive government, not just the executive of the Opposition - does not of itself require recusal, any objection on the ground that I am sitting in judgment on cases that are brought under legislation said to have been passed in a later parliament, of which I was not a member, to give effect to the policy of a shadow cabinet of which I was a member, must not, of itself, be sustainable.

[75] Having dealt with that issue, and assuming, without finding, that the document entitled "Secure Australian Jobs Plan" annexed at BP-1 of Mr Popple's affidavit exclusively sets out the policy proper, as adopted by the shadow cabinet, rather than a description of it, or at least is consistent with that document, I will turn to the next step, following Ebner.

Step 2: an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits

11. The Australian Labour [sic] Party campaigned for its Secure Australian Jobs Plan subsequent to its promulgation. It formed a government following an election in May 2022.

12. The Secure Australian Jobs Plan was substantively made law by the passage of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth).

13. Deputy President Butler was appointed to the Fair Work Commission in August 2024.

14. Part 2-7A, being the embodiment of the Secure Australian Jobs Plan policy, commenced to operate on 1 November 2024.

[77] There is no evidence before me to establish the first sentence of paragraph 11 of the application, but I will assume that is correct. I take notice of the matter in the second sentence of paragraph 11. I have not undertaken a comparative analysis of the Secure Australian Jobs Plan as attached to Mr Popple's affidavit, on the one hand, and the Closing Loopholes Act, on the other. As I stated above the appendices to the explanatory memorandum refer to "the Secure Australian Jobs Plan." I take notice that I was appointed to the Commission, by the Governor-General, in accordance with the Fair Work Act, in August 2024. Despite what is said in the application, Part 2-7A of the Fair Work Act did not commence to operate on 1 November 2024, but on 15 December 2023.[37]

[78] As to step 2, the application refers to the matters above relied upon in relation to step 1, and goes on to state (again, omitting parts apparently reliant upon parliamentary proceedings):

"As to the second step, a fair-minded reasonable observer might conclude that, in the above premises, the Deputy President might not bring a fair or impartial mind to deciding what is "fair and reasonable in all of the circumstances" for the purposes of s 306E(2) and (8). This is because:

(a) The enactment of Part 2-7A is her (and her Cabinet's) [sic] policy, and has become law ...

(b) In this policy development she and her cabinet [sic] have singled out the coal mining industry as one that is to be subject to the desired policy change.

[79] Putting aside the suggestion that I was a member of Cabinet, which I was not, and even taking the applicants' case at its highest, it is not clear why previous support for a policy would preclude a decision maker from fairly deciding cases brought under a law that gave effect to that policy. The applicants refer specifically to subsections (2) and (8) of section 306E. I will turn to those provisions now.

[80] Section 306E requires the Commission to make a regulated labour hire order in certain circumstances. The Commission must, on application by an applicant with standing under the provision, make a regulated labour hire arrangement order if it is satisfied that:[38]

(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and

(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and

[81] There are various exclusions including that the Commission must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour,[39] and, more relevantly in light of the basis of this application, also including that the Commission must not make the order if satisfied that it is not fair and reasonable in all the circumstances to do so, in each case having regard to various matters provided for under the section.[40]

[82] The matters that are to be considered, as to fairness and reasonableness, providing submissions are made, are:[41]

(a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:

(i) whether the host employment instrument applies only to a particular class or group of employees; and

(ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and

(iii) the rate of pay that would be payable to the regulated employees if the order were made;

(d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;

(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:

(i) the nature of the regulated host's interests in the joint venture or common enterprise; and

(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);

(e) the terms and nature of the arrangement under which the work will be performed, including:

(i) the period for which the arrangement operates or will operate; and

(ii) the location of the work being performed or to be performed under the arrangement; and

(iii) the industry in which the regulated host and the employer operate; and

(iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;

[83] It can be appreciated that my task, in considering subsections (2) and (8) will involve considering matters specific to the host employer, to Tesa and HVA, and to the workers and the work they are doing at the particular open cut mine that is the subject of the substantive application.

[84] The applicants have established no logical connection between their claim that, while a member of the shadow cabinet, the Secure Australian Jobs Plan was my policy, and the feared deviation from the course of deciding the case on its merits.

[85] If the Secure Australian Jobs Plan was a policy attributable to me by means of my membership of the shadow cabinet, it has not been attributable to me for around three years.

[86] In the intervening period I have taken an affirmation of office in the following terms:

I do solemnly and sincerely promise and declare that I will bear true allegiance to His Majesty King Charles the Third, His Heirs and Successors according to law, that I will well and truly serve Him in the office of Deputy President of the Fair Work Commission and that I will faithfully and impartially perform the duties of the office.

[87] There is no evidence before me to suggest that I have not carried out that affirmation.

[88] There is no evidence whatsoever that I have formed any prejudgement about Tesa or HVA that would be relevant to the operation of section 306E or otherwise.

[89] When dealing with Step 1, above, I made observations about what would have been open had I ruled differently on whether it was lawful for me to admit the excluded parts of Mr Popple's affidavit. As I indicated for Step 1 the relevant matter was the motives or beliefs it is said that a fair minded lay observer would have apprehended that I had or held in 2021. What is the logical connection between motives or beliefs I am said to have had or held in 2021, and the apprehended deviation from deciding the case on the merits? It is hard to see what that could be. Motives and beliefs change over time and there is nothing before me suggesting that any fair-minded lay observer would think that I am presently prosecuting any law reform proposals in relation to labour hire, and nor is there anything to suggest that a fair minded lay observer would think that my views had not changed between 2021 and now. Nor is it explained how there is an unbroken logical connection between the events of 2021 and the decision-making I am called upon to do in 2025, consequent upon an affirmation of office I have given in the intervening period. I understood the submission that the applicants made, that the affirmation was not relevant. I do not think that submission can be accepted on the authorities and I do not accept it. More generally, I make the same observations as to this issue, of the material that was sought to be brought in from the Hansard, that I have made, earlier in the course of delivering this decision, as to the assertion that the Secure Australian Jobs Plan was my policy while I was in the shadow cabinet.

[90] It follows that I do not accept that there is a logical connection between the identified matters and the apprehended deviation from deciding the case on its merits.

[91] However, if I am incorrect in that regard, I will deal with the question of reasonableness.

[92] The asserted apprehension of bias is unreasonable.

[93] There is no real possibility that I might not bring an impartial mind to this matter.

[94] The reasonableness of the asserted apprehension is to be considered in the context of ordinary judicial (or in this case, quasi-judicial) practice. My training, tradition, and affirmation equip me with the ability to disregard the irrelevant, the immaterial, and the prejudicial.

[95] This is a specialist tribunal and its Members are drawn from people involved in industrial relations, often as partisans for either workers or employers. It is commonplace for Members of this Tribunal to have expressed views about contentious issues in industrial relations prior to taking up their Commission and giving their oath or affirmation of office. I doubt there would be many who had not done so, before leaving the fray and joining the bench.

[96] Coming from such backgrounds is part of what qualifies people to be appointed; it cannot be a basis for disqualification unless there are specific circumstances. In Polites, the Deputy President in that case had been a legal advisor for one of the now parties but that was not sufficient to disqualify him; the Court said:[42]

... if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination.

[97] So, it can be seen that what is required is something connected to the parties, the proceedings, and the questions in issue in them. Nothing of that nature arises here.

[98] Counsel for the Applicants referred me to Justice Gageler's decision, ex tempore, in Unions NSW and Ors v State of New South Wales.[43] This is another example of the type of interest referred to in Polites, where the court was considering the circumstances where a former legal advisor, (in this case the former Solicitor General) should, and should not, recuse himself.

[99] In my view, the decision in Unions NSW is consistent with Polites. Justice Gageler's recusal decision in Unions NSW and Ors v State of New South Wales relevantly stated:

In my former capacity as Solicitor General of the Commonwealth I provided signed legal advice to the Attorney General of the Commonwealth in response to a request for advice which touched on the validity of provisions of the Election Funding, Expenditure and Disclosures Act (NSW), the validity of which is now challenged in these proceedings. ...

[100] The recusal decision is two paragraphs; I won't read out the entirety of them here. But I will say there is nothing like that situation in this case. There is the bare fact of my former membership of a shadow cabinet, which is said to necessitate the conclusion that a policy in a portfolio other than mine, adopted by that shadow cabinet, was my policy for a time. And, if I am wrong as to the ability to admit the parts of Mr Popple's affidavit going to parliamentary proceedings, there is a single example given in the application on which the claim is based that I prosecuted the policy. This is a far cry from providing the advice or preparing the case that could form the basis for finding such an interest exists. On a proper reading of Polites my situation is more analogous to that in which it would not be appropriate to recuse myself, than to the examples given where the apprehension could reasonably arise.

[101] On the authorities it is prejudgement, not predisposition, that engages the apprehended bias rule. Nothing before me establishes prejudgement of the questions in issue in these proceedings.

[102] The applicants' case is ahistoric, not only in respect of Australian judges who had held executive or parliamentary office, but also having regard to the High Court when first established, whose members had been delegates to the constitutional conventions and who were nonetheless called upon to interpret the Constitution. The applicant's case tacitly asks me to accept that I should be treated inconsistently with every other judge or tribunal member who had previously been a Member of Parliament or a participant in the political fray. I do not know what distinguishes the offices I have held from the offices they held, other than questions of degree. I do not consider that there is any basis on which a fair-minded observer might reasonably apprehend that I might conduct myself any differently than any officer holder in a like position.

[103] In light of the foregoing, I find that the asserted apprehension of bias is unreasonable.

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

[105] As stated above a claim such as this is serious and must be distinctly made, and clearly proved. That has not occurred.

[106] In light of the reasons I have given, 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 Tesa or HVA under section 306E of the Fair Work Act.

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

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

[1] Affidavit of Mr Popple affirmed 14 March 2025, [1], though in that paragraph it was spelt "Kington Reid."

[2] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 436

[3] R v Tozer [2025] NSWSC 50, [22], citing Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, and Re Polites; ex parte Hoyts (1991) 173 CLR 78 at 85-86.

[7] [2019] FWCFB 214; 283 IR 415.

[9] Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855; 287 IR 30.

[13] [2021] HCA 29; 393 ALR 389 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).

[14] "Reply" submissions filed 18 March, [15].

Mining and Energy Union [2025] FWC 779 (19 March 2025)

At a glance

Court

Decision date

Source

Judgment (223 paragraphs)

Mining and Energy Union [2025] FWC 779 (19 March 2025)

Legislation Cited (4)

Cases Cited (10)