The only decision issued by the Deputy President to date has been upheld on appeal.

The appeal decision dismissed ... many of the contentions made in the recusal application.

The materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

In these circumstances the Deputy President does not propose to vacate the Directions and stand the matter over."

[27] The amended notice of appeal contains the following two grounds of appeal:

1. As to the Recusal Decision, the Deputy President erred in failing to recuse herself from hearing or otherwise dealing with proceedings B2022/530 other than by referring it to the President for allocation to another member of the Commission.

(a) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President might not determine the proceedings in an impartial and unprejudiced way.

(b) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President had pre-judged the issue of whether the "threshold requirement" identified in paragraph [11] of Inpex Australia Pty Ltd v Australian Workers Union [2022] FWC 2236 was satisfied.

(c) The Deputy President erroneously failed to appreciate that the Deputy President had in fact pre-judged, in paragraphs [75]-[76] of the Recusal Decision, the issue of whether the "threshold requirement" was satisfied.

(d) The Deputy President erroneously failed to find that a fair-minded lay observer would reasonably apprehend that the Deputy President had pre-judged the issue of what, if any, method would be appropriate to work out whether a majority of the Appellant's employees wanted to bargain.

(e) The Deputy President erroneously failed to actively engage with and consider either or both of the following submissions made by the Appellant:

1. that the grounds on which the Appellant relied collectively, rather than each in isolation, gave rise to a reasonable apprehension of bias; and

2. that the Deputy President's decision in Australian Workers' Union [2022] FWC 1892 contained statements that were illogical, unfair and made without a proper basis.

(f) Insofar as the Deputy President dealt in [94] of the Recusal Decision with the argument referred to in Particular (e)(a), it was rejected without giving any reasons.

(g) Insofar as the Deputy President relied, in paragraphs [48] and [51] of the Recusal Decision, on the directions dated 12 July 2022 being 'templated documents' whose ancestry could 'be traced back to Directions routinely issued by Members of the FWC prior to 2017':

1. there was no evidentiary or other factual basis for those assertions;

2. neither issue was raised with the parties; and

3. these were, in any event, irrelevant considerations.

1. As to the Vacation Decision, the Deputy President erred in failing to vacate the directions issued on 12 July 2022 and extended on 20 September 2022, and in failing to stand the proceedings over pending the hearing and determination of this appeal.

(a) The Vacation Decision, either separately or taken together with the unilateral making of the directions issued 12 July 2022 and amended on 20 September 2022, gives rise to a reasonable apprehension of bias.

(b) The Deputy President erroneously found that the materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

[28] Woodside submitted that it is in the public interest for the Commission to grant permission to appeal because the decisions under appeal are attended by doubt, they raise issues of jurisdictional error and substantial injustice to Woodside may result should permission be refused.

[29] In respect of appeal ground 1(a), Woodside submitted that the "cumulative effect" of the eight grounds set out in its submissions below was that a reasonable apprehension of bias arose from paragraphs [4], [6] and [8] of the directions and paragraphs [21]-[23], [27], [31], [32(d)] and [36] of the production decision. The extant issues to which this apprehension of bias was said to relate were fourfold:

(1) whether the AWU had satisfied the "reasonable hypothesis" threshold requirement identified in Inpex[26] such as to justify the Commission proceeding any further;

(2) the reliability of the petition method of assessing majority support under s 237(2)(a);

(3) the appropriateness of the petition method; and

(4) whether the Commission could be satisfied as to the matters in s 237(2)(c) and (d).

[30] Woodside submitted that the Deputy President's statements at paragraph [4] of the directions and paragraphs [21]-[23] of the production decision related to these extant issues, were expressed without qualification or doubt, could not properly be described as tentative, and were made before Woodside had provided its submissions and evidence pursuant to paragraph [8] of the directions. The "logical connection" required by the second step of the test in Ebner v Official Trustee in Bankruptcy[27] was satisfied because these matters would cause a fair-minded lay observer to apprehend that the Deputy President had formed a view in respect of the identified extant issues. It was submitted that the express invitation to provide written submissions and evidence in respect of these issues does not remove the impression created by the directions and the production decision that the clear views there stated might influence the Deputy President's determination of those issues when making the final decision. Further, in the circumstances, a fair-minded lay observer would reasonably apprehend that following the provision of the written submissions and evidence, the Deputy President might not move her mind from the position reached and expressed by her in the directions and the production decision. It was immaterial that the statements that it alleged gave rise to a reasonable apprehension of bias were made in relation to interlocutory steps because, once an apprehension of bias existed, Woodside was not entitled to "stand by" until the final decision and, in addition, it was not necessary for Woodside to show any practical disadvantage or unfairness in order for its appeal to succeed, nor was it permissible to inquire whether the apprehension of bias has crystallised into a demonstration of actual prejudgment.

[31] Regarding appeal ground 1(b), Woodside submitted that the fact that the directions required it to file its submissions and evidence first would reasonably cause a fair-minded lay observer to form the view that the Deputy President was satisfied that the threshold requirement identified in Inpex was satisfied by the AWU's Form F30 application. This was said to be the case notwithstanding that the Deputy President had not yet seen the petitions, Woodside had put the reliability of the petitions in issue, there had been no argument or opportunity for argument as to whether the threshold requirement had been satisfied, there had been no decision or finding as to the threshold requirement, and the AWU's application did not address the reasonableness requirement in s 237(2)(d) of the FW Act.

[32] In relation to appeal ground 1(c), Woodside submitted that paragraphs [75] and [76] of the recusal decision show that the Deputy President erred in thinking that Woodside should file material as to whether the threshold requirement was satisfied, when in fact the AWU alone bore the onus of proof in this regard. As to appeal ground 1(d), it was submitted that the steps contemplated by paragraph [6] of the directions would reasonably cause a fair-minded lay observer to form the view that the Deputy President would implement and adopt the identified "proposed" method unless Woodside could persuade her that some alternative method should be adopted. This together with paragraphs [21]-[23] of the production decision had the effect of foreclosing arguments which Woodside may have made that a comparative exercise using material that is provided in a redacted form to one of the parties is never appropriate, that if the AWU was unprepared to provide the unredacted petitions to Woodside, then the threshold requirement identified in Inpex was not satisfied and the MSD application should therefore be dismissed.

[33] In relation to grounds 1(e)-(f), Woodside submitted that the Deputy President failed to engage in an active intellectual process with Woodside's submission that the eight grounds on which the Applicant relied collectively, rather than each in isolation, gave rise to a reasonable apprehension of bias, and also did not engage with Woodside's submission that the production decision contained statements that were illogical, unfair and made without a proper basis. In addition, Woodside submitted that there was no evidence for the assertion in the production decision that the directions were templated documents whose ancestry could be traced back to directions routinely issued by members of the Commission prior to 2017, and no such evidence was drawn to the attention of the parties. In any event, it was submitted, this was an irrelevant consideration, as a fair-minded lay observer would not be taken to know of the ancestry of the directions, assuming those antecedents exist.

[34] In respect of appeal ground 2(a), Woodside submitted that:

• the Deputy President unilaterally made the extended directions notwithstanding the pending appeal against the recusal decision;

• the extended directions did not fix a date for the hearing of the substantive application, but provided for the completion of all pre-hearing steps by 25 October 2022, in circumstances where the appeal was at that time listed for hearing on 22 November 2022;

• the Deputy President made the vacation decision notwithstanding that the Commission's first duty is to determine the question of its own jurisdiction before dealing with the substantive action;

• in the usual case, the issue of jurisdiction should be determined as a preliminary matter;

• the Deputy President made the extended directions and the vacation decision in circumstances where the AWU had not identified any, or any real, prejudice arising from a short stay of the proceedings pending the determination of the appeal from the recusal decision; and

• a fair-minded lay observer, who would be taken to have knowledge of the earlier matters the subject of the recusal application, would reasonably form the view that the vacation decision indicated that the Deputy President might finally deal with the substantive application, adversely to Woodside, prior to the hearing and determination of the appeal.

[35] As to appeal ground 2(b), Woodside submitted that, in finding that the materials that it had been directed to file would be required to be filed regardless of which member of the Commission ultimately determines the substantive application, the Deputy President once again misunderstood the applicable legal principles as it would have been open for Woodside to submit before another member, and for another member to accept, the matters in identified in its submission in respect of ground 1(d).

[36] We have decided to grant permission to appeal in relation to ground 1 of the appeal because it raises issues of sufficient significance to justify appellate determination.

[37] It is not in dispute that the correctness standard of appellate review applies to ground 1 of the appeal. Therefore, it is not necessary for us to analyse the Deputy President's reasons in the recusal decision; the task is simply to determine whether the Deputy President was correct in determining that she was not disqualified from continuing to hear the AWU's MSD application by reason of apprehended bias.

[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[28] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[29] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[30] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[31]

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be "firmly established",[32] and a finding of apprehended bias is not to be reached lightly.[33] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[34] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the "logical connection" required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[35] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[36] apply:

"The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ... at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ... at 352 per Mason J."

[40] Applying the above principles, we consider that the Deputy President's recusal decision was correctly decided and that Woodside's apprehended bias case is untenable for the following reasons.

[41] First, Woodside did not contend that any reasonable apprehension of bias arose in respect of the question required to be determined under s 237(2)(a) of the FW Act, namely whether a majority of its employees (at the time to be determined by the Commission) who would be covered by the AWU's proposed agreement want to bargain. Rather, in respect of the first three of the four alleged issues concerning which an apprehension of bias was said to have arisen, Woodside's case is premised on the proposition that it was necessary under s 237 for the Deputy President to determine, as a threshold matter of jurisdiction, whether the AWU had advanced a "reasonable hypothesis" of majority support. Woodside's case went so far as to contend that the Deputy President was required to make an anterior determination about this purported threshold jurisdictional issue before taking any other action with respect to the MSD application and that, by reason of the impugned parts of the directions and the production decision, the Deputy President had given rise to a reasonable apprehension that she might not decide impartially Woodside's case that no "reasonable hypothesis" existed because the AWU's petition was unreliable.

[42] We reject the premise of Woodside's submission. Section 237 does not establish any threshold requirement that a "reasonable hypothesis" of majority support must be found to exist prior to the Commission proceeding to determine the question arising under s 237(2)(a) (including the determination of a method of assessing majority support under s 237(3)). The expression "reasonable hypothesis" is not used in s 237 or in any provision of the FW Act relevant to majority support determinations or the whole subject of bargaining. Woodside submitted that the requirement arose as a matter of implication from the whole of ss 236 and 237, but advanced no submission, even when pressed on the matter, as to how the text of those sections gave rise to such an implication.

[43] In RFFWU Incorporated v Coles Supermarkets Australia Pty Ltd[37] (Coles Supermarkets) a Full Bench said the following in response to a submission that the Commission was required, once an application for a majority support determination was made, to undertake the task of determining for itself whether a majority of employees want to bargain:

"[14] ... there is no merit to the proposition advanced in connection with the first appeal ground that s 237(2)(a), read with s 237(3), requires the Commission to take steps to determine for itself whether or not a majority of relevant employees want to bargain. The task of the Commission in respect of a majority support determination application is set out in plain terms in s 237(2): the Commission must determine whether it is satisfied as to the four matters specified, including that a majority of relevant employees want to bargain. If this state of satisfaction is reached, section 237(1) requires a majority support determination to be made. There is nothing in section 237 which requires the Commission to take any particular step in order to determine whether it has reached the requisite state of satisfaction. Section 237(3), as already stated, is plainly cast in discretionary terms, and it would do violence to the language of the provision to read it as requiring the Commission to take some positive step itself to "work out whether a majority of employees want to bargain".

[15] The discretionary character of s 237(3), as well as s 590(1), means that it will usually be open to a Commission member to determine whether they are satisfied in relation to s 237(2)(a) on the basis of the evidence and submissions put by the parties before the Commission. There may be a range of circumstances which might justify the exercise of the discretion in s 237(3) to order a ballot or some other means to assess the existence of majority support, including whether the applicant has advanced a "reasonable hypothesis" supported by evidence that majority support exists (see INPEX Australia Pty Ltd v AWU [2020] FWCFB 5321, 201 IR 424 at [11]), but no authority supports the conclusion that the s 237(3) is to be construed as compelling the Commission to exercise power under the provision merely because an applicant requests that it do so..."

[44] The above passage emphasises that s 237 does not require the Commission to take any particular step in determining the question arising under s 237(2)(a), and how it procedurally goes about that task (including under s 237(3)) is a discretionary matter. The notion of the existence of a "reasonable hypothesis" (or perhaps a prima facie case) is a discretionary matter which may inform whether a ballot or some other means should be ordered by the Commission to facilitate the determination of the majority support question under s 237(2)(a).

[45] The premise of Woodside's case rests entirely on paragraph [11] of the decision in Inpex (referred to in the above passage from Coles Supermarkets), which stated:

"[11] We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that majority support exists with no proffered justification, may not be sufficient to provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon a premise that the bargaining representative applying for a determination has a reasonable hypothesis that there is majority support for bargaining. The materials before the Commission should bear out a reasonable foundation for such a hypothesis."

[46] Even leaving aside the highly qualified way in which the above paragraph is expressed, we do not read the paragraph as identifying, in s 237, a jurisdictional prerequisite of the nature for which Woodside contends. The paragraph makes no reference to the text of s 237, and it was not understood as establishing the purported jurisdictional prerequisite by the Full Bench in Coles Supermarkets. In any event, this part of the decision is concerned with the different issue of the circumstances in which the Commission might properly order a ballot of employees under s 237(3) in response to a majority support determination application. That issue has not arisen in the matter before the Deputy President.

[47] Accordingly, we reject the premise of the alleged apprehension of bias with respect to the first three of the four identified issues. There is no threshold issue as to the existence of a "reasonable hypothesis" requiring determination, and thus no apprehension of bias could reasonably arise in relation to it.

[48] Second, Woodside did not contend before the Deputy President at any stage prior to the making of the directions or the production decision that it was necessary for the Deputy President to determine the existence of a "reasonable hypothesis" as to majority support as a threshold issue before taking any further action in respect of the MSD application. Woodside had certainly contended in clear terms that the Commission could not reliably be satisfied pursuant to s 237(2)(a) that majority support for bargaining existed on the basis of the petitions, but it did not suggest by reference to Inpex or otherwise that this contention related to some anterior determination that was required. For that reason, the fair-minded lay observer would not reasonably apprehend from the directions or the production decision that the Deputy President might determine any question of a "reasonable hypothesis" other than impartially in circumstances where there was no indication at the relevant time that this was in any sense a contested or "live" issue.

[49] Third, we do not accept that any of the impugned parts of the directions or the production decision might reasonably be read as indicative of possible prejudgment of any issue yet to be determined. In respect of the directions, they must be read as a whole. Critically, in paragraph [8] of the directions, the Deputy President allowed the opportunity for Woodside to file submissions generally in response to the MSD application, and specifically contemplated that the submissions would address the issue of the process or method of assessing majority support for the purpose of s 237(2)(a), as well as the "fairly chosen" and "reasonableness" issues arising for determination under s 237(2)(c) and (d) respectively. The fair-minded lay observer would appreciate that this indicates a willingness on the part of the Deputy President to hear and consider submissions from Woodside in opposition to reliance on the AWU petitions or the use of the petition method to assess majority support, and in relation to the "fairly chosen" and "reasonableness" issues, and would not in that context read any other part of the directions as indicative of a possible commitment to a conclusion about these issues already formed which is incapable of alteration.

[50] Even read in isolation, paragraphs [4] and [6] of the directions are not capable of reasonably being read as indicative of possible prejudgment on the petition issue or in relation to the "fairly chosen" or "reasonableness" issues. Paragraph [4] is an anodyne introductory statement and it verges on fanciful to suggest that it might be read as potentially conclusory as to any issue in contest. Further, as the Deputy President stated in paragraph [48] of her recusal decision, paragraph [4] was not crafted for the purpose of this case but rather is from templated directions. Woodside's impertinent and disrespectful submission that the Deputy President was required to provide it with "evidence" of this is rejected.[38] The fair-minded lay observer might be taken to be aware that directions of this sort are usually standardised and, with that knowledge, would not read paragraph [4] as possibly directed towards anything specifically raised in Woodside's case.

[51] Woodside submits that the statement in the first sentence of paragraph [4] of the directions is "wrong", but the most that can be said about it is that it is perhaps incomplete as to the basis upon which a majority support determination is to be made under s 237. Even if it is "wrong", paragraph [8] of the directions as earlier stated makes clear that the Deputy President understood the matters requiring determination under s 237(2) and the need to hear Woodside's case as to those matters. Paragraph [6] merely sets out a method to deal with the MSD application by reference to the petitions on which it relies. The use of the word "proposed" to describe this method can only be read as indicating a provisional rather than a concluded view and, as earlier stated, paragraph [8] expressly confirms that Woodside will be heard as to this proposal. That paragraph [6] requires the parties to take steps to allow this "proposed" method to be put into effect if adopted could not reasonably be understood as potentially leading to an unalterable position with respect to any submissions that Woodside might file pursuant to paragraph [8].

[52] Woodside's submissions concerning the production decision seek to wrench it out of its context. The parts of this decision upon which Woodside relies do not have as their purpose the advocacy or defence of the petition method of assessing majority support, as Woodside contends. Rather, they constitute the Deputy President's reasons for refusing Woodside's application to seek the production of documents which would disclose the identity of the employees who signed the AWU's petition, and they would be understood by the fair-minded lay observer in this way. Thus, paragraphs [21]-[23] and [27] may only reasonably be read as explaining that the "Petition Method" (a defined term explained in paragraph [3] as referring to where the Commission "compare[s] the information contained in the Petitions with Employee identification information provided by Woodside") is the most common mechanism used by the Commission in relation to applications for majority support determinations. The import of this is, clearly, that the production of the documents sought by Woodside would be contrary to this usual practice, which preserves the confidentiality of the employees' identities. The citation of the decision in NUW v Lovisa Pty Limited[39] in paragraph [24] would make this pellucidly clear to the fair-minded lay observer, who would therefore not read these paragraphs as indicative of the possibility of prejudgment on the issue of the appropriate method for assessing majority support under s 237(2)(a). It might be added that the fair-minded lay observer would also be taken to be aware, from the directions, that the Deputy President was open to consider submissions in opposition to the petition method, and would read the production decision in this light.

[53] Similarly, paragraphs [31] and [32(d)] of the production decision may only reasonably be understood as responsive to Woodside's submission, referred to in the directly preceding paragraphs [29] and [30], that the production of documents identifying the employees who signed the petitions was justified because of contentious representations concerning Woodside and bargaining made or allegedly made to the employees by the AWU or its officials. They constitute reasoning for the intermediate conclusion stated in paragraph [33]. Paragraph [36] simply observes that Woodside has the capacity to independently call evidence concerning whether the employees "are not freely expressing their views". That Woodside considers this to be impractical or illogical does not mean that the paragraph might be understood as indicative of the possibility of prejudgment on the issue of the method to determine majority support.

[54] Accordingly, ground 1 of the appeal is rejected.

[55] We refuse permission to appeal in respect of ground 2 of Woodside's appeal. Woodside accepted that, if appeal ground 1 failed, it could not establish a reasonable apprehension of bias on the basis of the vacation decision alone. Further, given that Woodside's recusal case has failed (meaning that the determination of the MSD application will remain with the Deputy President) then, in the absence of any appeal against the making of the extended directions, there is no utility now in revisiting on appeal the vacation decision.

(1) Permission to appeal is granted with respect to ground 1 of the appeal, and is otherwise refused.

(2) In respect of ground 1, the appeal is dismissed

I Neil SC and R Kumar of counsel for the appellant.

[1] [2022] FWC 2236

[2] [2022] FWC 2573

[3] [2022] FWC 1892

[4] [2022] FWCFB 168

[5] [2022] FWC 2573

[6] [2022] FWC 2236 at [32]

[16] [2020] FWCFB 5321, 301 IR 424 at [15]; ibid at [73]-[74]

[17] [2022] FWC 2236 at [32]

[26] INPEX Australia Pty Ltd v The Australian Workers' Union [2020] FWCFB 5321, 301 IR 424 at [11]

[27] [2000] HCA 63, 205 CLR 337

[28] [2000] HCA 63, 205 CLR 337

[29] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[30] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[31] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J

[32] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J

[33] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ

[34] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

[35] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]

[36] [2010] FCAFC 111 at [25]

[37] [2021] FWCFB 4414, 310 IR 130

[38] In any event, we have confirmed for ourselves that paragraph [4] appears in a standard way in directions issued by the Deputy President in respect of previous applications for majority support determination, and also in such directions issued by at least one other (former) member of the Commission.

[39] [2019] FWC 2571

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