Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - recusal application

[1] On 7 December 2025, Mr Mark Raymond Charteris (the Applicant) applied to the Fair Work Commission (the Commission) for an order to stop bullying at work pursuant to s.789FC of the Fair Work Act 2009 (the FW Act). The Applicant is employed by the Northern Territory Fire and Emergency Services, which is represented in this matter by the Commissioner for Public Employment, Northern Territory (the statutory employer). The Applicant named Mr Andrew Warton, Commissioner NT Fire and Emergency Service, and Ms Jo Schofield, United Workers' Union (UWU) National President in his application (the Persons Named).

[2] I conducted a preliminary telephone conference in this matter on 10 February 2026. I conducted a report back conference by telephone on 23 February 2026. A further report back conference was scheduled to take place on 20 March 2026, however, was vacated in light of the Applicant making a recusal application.

[3] At the initial Conference on 10 February 2026, I advised the parties that I had attended University with Ms Schofield in 1986. Further, that our paths crossed on rare occasions during my 24 years of employment in the trade union movement. Finally, Ms Schofield has appeared before me on one or two occasions over the last 14 years.

[4] On 11 March 2026, the Applicant wrote to my Chambers requesting that I recuse myself from further dealing with this matter. In his email correspondence, he stated:

"...I am increasingly concerned about your involvement in my F72 Stop Bullying Orders, especially given your disclosed connection to Ms Schofield. Your mention of attending university together, sharing union affiliations at different levels, and maintaining limited contact over the years suggests a potential conflict of interest. While you proposed managing this conflict independently, I find this suggestion troubling. The unpredictable nature of individuals involved in conflict makes it crucial to manage these situations with full transparency and proper procedures. Self-management of conflicts is inappropriate, and your suggestion has caused considerable apprehension and concern. I had expected a greater awareness of these principles due to your elevated level of understanding, which heightens my worries.

Throughout our discussions, I've observed remarks from you that indicate potential bias, particularly concerning Ms Schofield's actions and those of the Union....

Online information about you and Ms Schofield reveals a significant connection through mutual associates with shared professional backgrounds, such as union movements, leadership roles, and political alignment with the ALP, as well as substantial union involvement before joining the FWC. A fair-minded, informed observer might reasonably apprehend that the decision-maker could not be impartial. I believe this is the case.

Given the potential for this matter to lead to arbitration and my concerns regarding self-managed conflicts of interest and apprehended bias, I respectfully request that you recuse yourself from this matter and transfer it to an independent Commissioner..."

[5] I sought submissions from the other parties to the matter. The UWU advised that it did not wish to make any submissions in relation to the Applicant's recusal application. The OCPE provided a brief submission in response to the Applicant's recusal application as follows:

"The respondent noted the Commissioner's declaration of conflict in the original conference in terms of limited passing association and had no objection to continuing with the proceedings."

[6] This decision deals only with the application by the Applicant that I recuse myself from dealing with his application for an order to stop bullying.

[7] The principles that apply when dealing with a recusal application on the grounds of 'reasonable apprehension of bias' were stated in the High Court decision of Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (Ebner) at paragraphs [6] -[8], and summarised by Middleton J in Kirby v Centro Properties Limited (No 2) [2011] FCA 1144 as follows:

"The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):

"... 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 question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.

In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is "no less important" to articulate the "logical connection" between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8])."[1]

[8] The High Court has also observed, in the matter of re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, that:

"...disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established"... 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."

[9] Whilst I have known Ms Schofield for a lengthy period of time, it is not possible to suggest that we are anything more than acquaintances. I have never socialised with Ms Schofield on an individual or small-group basis, nor have I ever had a cup of coffee with Ms Schofield. I deliberately do not accept invitations to attend lunches, dinners, Christmas parties etc from any party that either appears or may appear before me, to ensure that there can be no perceived apprehension of bias. It is a simple fact, that the ETU and the Miscellaneous Workers Union (as it then was) operate in different industries. Further, I do not recall seeing Ms Schofield at any meeting or conference that I attended when I was an Officer of the Australian Labor Party. It is not plausible to suggest that I have a personal association or bias towards Ms Schofield on the basis that I have seen her on three occasions over the last 14 years, in a purely professional capacity.

[10] If every Member of the Commission was required to recuse themselves simply on the basis that they know a particular party, or because they have attended a social function with a particular party, then the Commission would grind to a halt. As new Members, we are required to swear an oath of impartiality. I do not intend to breach that oath simply because I went to university with Ms Schofield some 40 years ago.

[11] I am satisfied and find, for the reasons identified above, that a fair-minded lay observer would not be of the view that I will not bring an impartial mind to this matter.

[12] The Applicant's recusal application is dismissed.

[13] The adjourned Report Back Conference from 20 March 2026 will now be listed on 1 April 2026 at 8.30am NT time. A notice of listing to this effect will issue to the parties.

[1] [2011] FCA 1144 at [9] - [11].

Printed by authority of the Commonwealth Government Printer