s.739 - Application to deal with a dispute

The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey

The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Application for recusal - perceived apprehended bias - public policy - application refused

• [1] On 17 March 2025, Ms Susan Cox and Ms Soniya Survase applied to the Commission to deal with a dispute arising under The Florey Union Enterprise Agreement 2024. The Respondent to both matters is The Florey Institute of Neuroscience and Mental Health.

• [2] On 24 March and 10 April 2025, I conducted conferences but was unable to assist the parties to resolve the dispute. During conferences, I raised with the parties that the Commission's jurisdiction would need to be established. To that end, I issued directions and listed the matter in relation to the question of jurisdiction only.

• [3] On 15 May 2025, the applicants applied for me to recuse myself. The applicants' grounds were:

The Applicants' position is that in circumstances where Commissioner Tran has participated in a conference involving private discussions with the parties and the exchange of settlement offers, with respect, she should recuse herself from further involvement in the case. The involvement of Commissioner Tran in decision-making can give rise to a perception of bias and potentially undermine the integrity of the Commission's processes. Whilst we do not say that Commissioner Tran is incapable of being impartial, her previous confidences with the parties gives rise to the potential perception that she is no longer, impartial.

• [4] The applicants did not seek to provide further submissions or materials, and did not wish to be heard in relation to their recusal application. As the respondent also did not wish to be heard, I consider it appropriate to determine the application on the papers.

• [5] The applicants' grounds for asking me to recuse myself appear to be first on the grounds of public policy and second because of apprehended bias due to previous confidences with the parties.

• [6] It is the usual course that following notification of a dispute, a member of the Commission attempts to assist parties to resolve the dispute by way of conferences, in which private discussions are held with the parties. It is also the usual course that the same member may arbitrate the matter if authorised to do so by a relevant dispute resolution procedure.

• [7] In Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3191, the Full Bench said at [30]

"Absent any disqualification because of a breach of the rule against bias, we do not consider that a single member of the Commission who has been allocated a matter to deal with to finality has the power to cease dealing with it and transfer it to another member on the basis of an "objection" by a party that the member has conciliated the matter."

• [8] In accordance with the principles and process set out in Amec, I raised this matter with the relevant allocating presidential member. The matter will not be reallocated to another member.

• [9] The applicable principles for dealing with recusal applications on the grounds of apprehended bias can be found in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] - [8].

• [10] Those principles can be summarised as follows:

The test of whether a fair-minded lay observer might reasonably apprehend that the tribunal member might not bring an impartial mind to the question they are required to decide requires:

1. Identification of the factor which is said to lead tribunal member to decide a case other than on its legal and factual merits.

1. Articulation of the logical connection between the matter and the apprehended deviation from deciding case on its merits.

1. Consideration about whether the apprehension is reasonable.

• [11] The applicants have not identified the particular factor - other than my involvement in conferences - that would lead me to decide the case other than on its legal and factual merits. It is therefore difficult to draw a logical conclusion that might lead to a reasonable apprehension that the matter will be decided other than on its merits.

• [12] Two further observations are relevant. First, the ground of apprehended bias must be firmly established.[1] Second, an apprehension that an issue may be decided adversely to a party is not an apprehension that the issue might be determined other than impartially or on its merits.[2]

• [13] Having considered the applicants' submissions and applying the relevant principles, I have decided not to recuse myself from this matter. No factor has been identified that would lead a fair-minded person to reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in this matter.

[1] Re JRL; Ex parte CJL [1986] HCA 39, at 352 per Mason J, 360-364 per Wilson J

[2] Re JRL; Ex parte CJL [1986] HCA 39, at 352 per Mason J

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