s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - recusal application

• [1] On 7 February 2025 Mr Yifei Ren (Mr Ren) filed an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) to deal with a dispute with Curtin University (Curtin) pursuant to the dispute resolution procedure contained in clause 65 of the Curtin University Enterprise Bargaining Agreement 2022-2025 (Agreement).

• [2] The dispute concerns Mr Ren's entitlement to apply for conversion to continuing employment pursuant to clause 12.5 of the Agreement.

• [3] An email was sent to the parties on 19 February 2025 notifying them that the Application had been allocated to my Chambers and that I proposed to list the Application for a conference to explore the resolution of the Application and/or determine the further programming of the Application. Neither party indicated any objection to engaging in conciliation.

• [4] On 25 February 2025, in response to an invitation to do so in the email of 19 February 2025, Curtin filed a response to the Application.

• [5] The Application was subsequently listed for a conciliation conference (Conference)

from 1pm (AWST) to 2pm (AWST) on 5 March 2025. Ms Esther Power (Power) was granted leave to represent Mr Ren at the Conference and attended the Conference with Mr Ren. Ms Kate Warren and Ms Xime Hastings attended on behalf of Curtin.

• [6] The issues in dispute could not be resolved at the Conference and therefore on 6 March 2025 directions for the filing of materials in advance of a hearing were issued to the parties (Directions).

• [7] The Directions required the parties to prepare an agreed statement of facts and law to narrow the issues between the parties. The parties commenced the preparation of those materials.

• [8] On 13 March 2025, Mr Ren made an application that I recuse myself from further dealing with the Application (Recusal Application). In light of this the directions issued on 6 March 2025 were vacated and new directions were issued on 19 March 2025 for the filing of materials in relation to the Recusal Application (Recusal Directions). The Recusal Directions inter alia required Mr Ren to file submissions setting out the legal basis for his Recusal Application and copies of any authorities he relied upon. Mr Ren failed to do so within the timeframe set out in the Recusal Directions. Amended Recusal Directions were issued on 2 April 2025 granting him additional time to file his materials (Amended Recusal Directions). Considerable support was extended by my Chambers to Mr Ren to assist him to prepare and file his materials.

• [9] The Recusal Directions and Amended Recusal Directions invited Curtin to file materials in response to the Recusal Application. On 16 April 2025, Curtin informed Chambers that it did not to intend to file any materials on the grounds that:

"Having reviewed Dr Ren's revised materials filed on 10 April 2025, Curtin University's position is that none of the grounds or submissions made by Dr Rena are sufficient to justify that the Deputy President recuse herself from the proceedings."

• [10] On 16 April 2025 the parties were asked whether they were content with the Recusal Application to be determined 'on the papers' or whether they wanted to be heard orally. Curtin advised Chambers that it was content for the Recusal Application to be determined on the papers. Mr Ren indicated that he wished to be heard orally.

• [11] The Recusal Application was consequently listed for a hearing on 7 May 2025. At the hearing Mr Ren appeared on his own behalf. Ms Kate Warren attended the hearing on behalf of Curtin but did not seek permission to appear or make submissions.

• [12] The Recusal Directions and subsequent Amended Recusal Directions directed Mr Ren to file submissions and evidence in support of the Recusal Application and invited Curtin to file any submissions and evidence in response.

• [13] Mr Ren filed a witness statement setting out his evidence. No witness statement was tendered by any other person present at the Conference or the Hearing.

• [14] Curtin chose not to file any submissions or evidence in relation to the Recusal Application.

• [15] In reaching my decision, I have considered all the submissions made and the evidence tendered, even if not expressly referred to in these reasons for the decision.

• [16] Mr Ren submits that I should recuse myself from any further involvement in the determination of the Application on the basis of apprehended bias.

• [17] The grounds upon which Mr Ren says that I should recuse myself are identified in his witness statement as the following 'incidents' which can be summarised as follows:

1. Incident One - Prejudgement of case - Mr Ren alleges that I "stated that the matter appeared to be an "issue of redeployment". Mr Ren says that he understood that to mean that I had already decided his application lacked merit and was unrelated to the key issues he had raised.
2. Incident Two - Differential treatment of evidence - Mr Ren alleges that I displayed bias asking questions of Ms Power about the evidentiary basis of Mr Ren's case but failing to question what he describes as discrepancies in Curtin's Response. Mr Ren also asserts that I actively assisted the Curtin Representative by drawing her attention to evidence.
3. Incident Three - Differential treatment of statements made during the conference - Mr Ren alleges that I displayed bias by failing to question discrepancies in statements made by the Curtin Representatives during the Conference but asking Ms Power questions about the evidentiary basis of statements she made.
4. Incident Four - Mischaracterisation of the dispute and undermining the EBA's validity - Mr Ren alleges that I mischaracterised the dispute when I asked the parties questions related to whether his work was of a continuing nature because whether his work was of a continuing nature was not in dispute between the parties.

• [18] Mr Ren also asserted in his witness statement that I have a propensity to adopt an unnecessarily rigid interpretation of language in union related proceedings in order to find in favour of employers.

• [19] In his submissions in support of the Recusal Application Mr Ren describes the grounds for recusal as follows:

1. Mischaracterisation of the dispute.
2. Question the EBA wording without basis.
3. Unequal treatment of evidence.
4. Uncritical acceptance of Respondents statements.
5. Active assistance to the Respondent.
6. Dismissal of critical evidence without inquiry.
7. Pattern of strict interpretation.

• [20] Apprehended bias can only be found if it can be said a fair-minded and appropriately informed lay observer would reasonably apprehend that the decision maker might not determine the matter in an impartial and unprejudiced way:[1]

"... bias 'connotes the absence of impartiality' What constitutes impartiality is more than predilections. It requires the decision-maker's mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her."[2]

• [21] Disqualification is only established if there is:[3]

"a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."

• [22] In ALA15 v Minister for Immigration and Border Protection[4] the Full Court of the Federal Court set out the principles for determining a recusal application noting that:

"...(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;

(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer." [FOOTNOTES OMITTED]

• [23] 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.[5]

• [24] The test for apprehended bias has:[6]

"a flexible quality, differing according to the circumstances in which a power is exercised."

• [25] The test for apprehended bias recognises and accommodates differences between court proceedings and other kinds of decision-making.[7] The context in which the test of apprehended bias falls to be applied will clearly affect how the test is applied.[8] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it is made as well as the circumstances leading to the decision.[9]

• [26] The context of proceedings before the FWC includes that it is a specialist Tribunal established to deal with industrial matters in a practical, expeditious and effective manner. The FW Act directs the FWC to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.

• [27] The parties were informed at the outset of the Conference that the Conference provided the parties with an opportunity to explore a fast, flexible and cost-effective agreed outcome, however, if a resolution could not be reached directions would be issued for determining the matter.

• [28] As is my practise at the outset of all conferences I hold, I informed the parties that:

1. The conference was not recorded to enable the parties to fully explore the opportunity for resolution without compromising their positions if they ultimately proceed to arbitration.

1. Any views I expressed in joint or private session were not my firm, fixed or final views but were intended to assist the parties reach a conciliated outcome, or to identify for the parties potential evidentiary or legal complexities they may wish to consider if the matter proceeds to hearing so that they could prepare for the hearing.

• [29] As I routinely arbitrate matters which I conciliate, I am particularly careful to avoid using language which might be interpreted as me having reached any conclusion about the facts or law in dispute.

• [30] The Application concerns a dispute about Mr Ren's entitlement to apply for conversion to continuing employment pursuant to clause 12.5 of the Agreement. Clause 12.5 provides as follows:

"12.5 Conversion of Fixed Term Appointment to Continuing Appointment

(a) This clause will not apply to an Employee appointed in accordance with:

(ii) clause 15 (Aboriginal and Torres Strait Islander Employment).

(b) Where an Employee has been engaged on 2 or more consecutive Fixed Term Appointments and those Appointments were in the same Faculty or area for a combined period of at least 2 years, the Employee is eligible to apply for Continuing Appointment status.

(c) Where an Employee is eligible to apply for a Continuing Appointment, the University will offer the Employee a Continuing Appointment, provided that:

(i) they are undertaking work of a continuing nature;

(ii) they were appointed through a merit selection process for at least one of the Fixed Term Appointments; and

(iii) they are meeting and maintaining University work performance expectations and have demonstrated the capacity to meet the performance expectations required in the continuing role.

(d) The University may refuse to appoint an Employee to a Continuing Appointment in accordance with clause 12.5(c) on reasonable grounds. Where the University does so refuse the reason(s) for the refusal will be provided to the Employee in writing."

• [31] The clause is a bespoke provision open to varying interpretation and the factual matrix in Mr Ren's case is reasonably complex. This is reflected in Mr Ren's Form F10 application and attachments which exceeded 230 pages.

• [32] In endeavouring to assist the parties to better understand each other's positions and encourage them to resolve the matter via conciliation, I asked both parties questions about the legal and evidentiary basis of their respective positions.

• [33] Mr Ren was represented at the Conference by a legal practitioner Ms Power. My questions and comments during the course of the Conference were directed to the Curtin representative and Ms Power, not Mr Ren. Notwithstanding that he was represented, Mr Ren elected to respond to a few of my questions himself.

• [34] The Conference was short. It last only for an hour. As noted earlier in this decision, the materials filed on behalf of Mr Ren were extensive. The Form F10 Application alone extended to 14 pages. Curtin's response was, in contrast, only 5 pages and attached no evidentiary material. Given the scope and detail contained in the materials filed by Mr Ren those materials primarily, and unsurprisingly, formed the basis of discussions during the course of the Conference.

• [35] The submissions made by Ms Power at the Conference were relatively lengthy. Once the issues raised by Ms Power were explored, there was limited time left for Curtin to make as detailed submissions as Ms Power, beyond those they made briefly in the course of discussing Ms Power's submissions and her proposals for resolution.

• [36] Mr Ren has a strong accent. It would appear that English is not his first language. On his own admission he has no knowledge of employment law or the practices or processes in the FWC. Given my questions were directed at experienced legal practitioners and the conversation moved quickly, it may well be the case that he did not fully comprehend all of the discussions or the purpose of those discussions.

• [37] For example, it is clear that Mr Ren does not understand the full scope of the issues in dispute. The question of whether Mr Ren's employment was of a continuing nature is clearly disputed by Curtin in the Curtin Response and at the Conference. It is clear from the submissions filed by both parties that what constitutes 'continuing employment' for the purposes of clause 12.5 is not clear or undisputed. The fact that the meaning of a clause of an enterprise agreement is not universally agreed does not make the agreement invalid at law and I did not suggest that to be the case.

• [38] I did not state that the Application appeared to be an issue of redeployment. I did query why Ms Power appeared to be relying on arguments relevant to redeployment rather than the provisions of the clause in dispute. In response Ms Power clarified the nature of her submissions.

• [39] To the extent that Mr Ren's materials were the subject of discussion during a greater proportion of the Conference, that was purely a function of the fact that he provided significantly more materials than Curtin.

• [40] To the extent that Ms Power was asked on occasion if she was able to evidence statements she made, this was a function of the fact that she was an advocate and not a witness to events in dispute in contrast to the Curtin Representatives which were able to provide some context of some events from their personal participation in those events. The need to tender evidence to support their various positions at a hearing was discussed with both parties.

• [41] A cursory review of my published decision reveals that I have found in favour of union parties in relation to interpretation disputes no less often than I have found in favour of employer parties.

• [42] At the end of the Conference, it was explained to the parties that in the absence of an agreed outcome, the Application would be arbitrated and directions issued to the parties to invite them to file submissions, evidence and authorities in relation to their arguments.

• [43] Having considered the submissions of the parties, the evidence tendered and the relevant authorities I am satisfied that it is not appropriate to recuse myself.

[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

[2] Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA [2013] FWC 4034 at [32].

[3] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Resmed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152 at [32].

[4] [2016] FCAFC 30 at [35]- [36].

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

[6] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]- [23].

[8] Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [25].

[9] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23].

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