Australian Workers' Union, The v Woodside Energy Ltd

The Australian Workers' Union (AWU) and Woodside Energy Ltd appeared before the Fair Work Commission (FWC) in a dispute concerning the refusal of the AWU to grant Woodside permission to produce certain documents. The case was initially decided on 20 July 2022, with a subsequent objection from Woodside regarding the arbitration process and an appeal against the decision. Woodside subsequently filed a formal application for the recusal of the decision-maker, citing apprehended bias. The AWU opposed the application, and the matter was set for a hearing on 30 August 2022. The appeal was dismissed on 2 September 2022, but the recusal application proceeded.

The central legal issue before the court was whether the decision-maker should be recused from the case due to apprehended bias. Woodside argued that the decision-maker should recuse themselves based on the grounds that they had previously expressed views on the matter, had been involved in related proceedings, and had made comments that could be perceived as biased. The AWU countered that there was no basis for the apprehension of bias and that the decision-maker had acted impartially throughout the process.

The court considered the submissions and evidence provided by both parties, including witness statements and documentary evidence. The court found that the decision-maker had not exhibited any behaviour that would lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the decision-maker might not determine the matter in an impartial and unprejudiced way. The court held that the decision-maker's previous involvement in related proceedings and comments made did not amount to bias and that the decision-maker was capable of presiding over the case without prejudice.

Accordingly, the court dismissed Woodside's application for the recusal of the decision-maker. The decision-maker continued to preside over the matter, and the appeal against the original decision to produce documents was not affected by the outcome of the recusal application.