Adrian Lal v Transport Workers' Union of Australia

[2025] FWC 2786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.372 - Application to deal with other contravention disputes

Adrian Lal
v

Transport Workers' Union of Australia

(C2025/6675)

DEPUTY PRESIDENT BUTLER

BRISBANE, 19 SEPTEMBER 2025

Application to deal with other contraventions dispute - recusal application dismissed

Mr Adrian Lal has applied to the Commission to deal with a general protections dispute not involving dismissal pursuant to section 372 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”). Mr Lal asks that I recuse myself from dealing with the dispute on the basis of my former association with Maurice Blackburn Lawyers, which often acts for the Respondent in this matter, the Transport Workers’ Union of Australia (“TWU”).

I was a Principal of the firm Maurice Blackburn Lawyers (“Maurice Blackburn”) for slightly more than five years, commencing in 2008. The firm acted for the TWU or branches of it during that time, and I personally acted for the TWU or branches of it during that time.

Mr Lal argues that my previous professional role at Maurice Blackburn gives rise to a reasonable apprehension of bias because a reasonable observer might perceive there is an ongoing relationship between me, the TWU, and Maurice Blackburn.

On 19 August 2025 I issued directions to deal with Mr Lal’s application for my recusal (“the recusal application”). Mr Lal was to file any further materials in support of the recusal application by 26 August 2025. Mr Lal filed written submissions and a statutory declaration on 25 August 2025. I have considered both the submissions and the declaration.

My directions of 19 August also allowed for the TWU to file materials if it wished to be heard on the recusal application. It did not do so. Consequently the directions allowing for Mr Lal to file materials in reply were not enlivened. The directions provided that the recusal application would be decided on the papers subject to any direction or order to the contrary. No party sought a direction or order to the contrary.

In addition to filing submissions and a statutory declaration on 25 August 2025, Mr Lal has subsequently sent various items of correspondence in respect of the recusal application. I do not take those items of correspondence as additional submissions, and in any event leave to file additional submissions is not granted.

The test for apprehended bias is usually drawn from the High Court decision in Ebner v Official Trustee in Bankruptcy[1] (“Ebner”). Ebner has been applied by Full Benches of this Commission.[2] I have considered the principles in Ebner and I consider that Mr Lal has articulated the factual basis and the logical connection referred to in Ebner. However, I do not consider any apprehension of bias to be reasonable, having regard to the following:

(a) I do not have the power to determine the dispute, given the matter was brought under section 372 of the Fair Work Act, so this is not a matter in which I will be called upon to make a substantive decision;

(b) a basis for disqualification has not been firmly established;

(c) recusing myself on that basis would be inconsistent with the reasoning in Re Polites; Ex parte Hoyts Corporation Pty Ltd;[3]

(d) a prior relationship as a legal adviser does not of itself disqualify the former adviser from sitting in proceedings before the tribunal of which they are member; and

(e) tribunal members should not grant recusal applications too readily.[4]

Mr Lal’s recusal application is dismissed. The matter will be listed for conference in due course.

DEPUTY PRESIDENT

Hearing details:

On the papers

Final written submissions:

25 August 2025

[1] (2000) 205 CLR 337, [2000] HCA 63.

[2] Including Re Construction, Forestry, Maritime, Mining and Energy Union[2019] FWCFB 214; 283 IR 415 and Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction[2019] FWCFB 3855; 287 IR 30.

[3] [1991] HCA 25; 173 CLR 78.

[4] Re JRL; ex parte CJL (1986) 161 CLR 342, 352 (Mason J).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Adrian Lal v Transport Workers' Union of Australia, the applicant, Mr Adrian Lal, sought to have the Deputy President of the Fair Work Commission, Butler, recuse himself from the case on the grounds of a perceived bias due to his previous professional relationship with Maurice Blackburn Lawyers. The case, which was filed under section 372 of the Fair Work Act, involved a general protections dispute not related to dismissal. The Transport Workers' Union of Australia was the respondent in this matter.

The legal issue before the Deputy President was whether there existed a reasonable apprehension of bias on his part due to his past association with Maurice Blackburn Lawyers, a firm that often acted for the respondent in this case. Mr Lal argued that the Deputy President's previous professional role gave rise to a reasonable apprehension of bias because a reasonable observer might perceive an ongoing relationship between him, the TWU, and Maurice Blackburn. The Deputy President considered the principles established in the High Court decision of Ebner v Official Trustee in Bankruptcy and concluded that while Mr Lal had articulated a factual basis and logical connection for his claim, a reasonable apprehension of bias was not established.

The Deputy President dismissed the application for his recusal, noting that he lacked the power to determine the dispute as the matter was brought under section 372 of the Fair Work Act. He also highlighted that a basis for disqualification had not been firmly established and that it would be inconsistent with the reasoning in Re Polites; Ex parte Hoyts Corporation Pty Ltd for him to recuse himself on that basis alone. Furthermore, he emphasised that a prior relationship as a legal adviser did not automatically disqualify a former adviser from sitting in proceedings before the tribunal of which they were a member. The Deputy President concluded that tribunal members should not grant recusal applications too readily, and thus dismissed the application for his recusal. The case will proceed with a conference to be listed in due course.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established