Application for a regulated labour hire arrangement order – recusal application – apprehended bias – attempted reliance on parliamentary debates – parliamentary privilege –Secure Australian Jobs Plan – whether a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question the judge is required to decide – whether apprehension reasonable – application dismissed

The following is an edited version of a decision delivered ex tempore on 18 March 2025, to which I have added citations.

In these proceedings the Mining and Energy Union seeks a regulated labour hire arrangement order in respect of Tesa Group Pty Ltd (“Tesa”) and HVA Technical Services Pty Limited (“HVA”), along with a host employer, Mangoola Coal Operations Pty Limited (“Mangoola”).

The matter is being heard together with another application by the same applicant, in relation to the same host employer (matter LH2024/15). Both matters are listed for hearing on 19 and 20 March 2025. The parties were given notice of the listing on 30 January 2025.

On the afternoon Friday 14 March 2025, Tesa and HVA, along with another entity whose standing has been attributed to their interest in the proceedings, Programmed Skilled Workforce Limited, filed an application seeking orders that I be recused from this matter and that it be remitted to a different Member of the Commission. In support of their application they filed an affidavit of a lawyer annexing two excerpts from the Hansard of the House of Representatives in the Australian parliament, both from 2021, and a print out from the Prime Minister’s website entitled Secure Australian Jobs Plan, also bearing a date in 2021.

I invited parties wishing to do so to file any materials in relation to the application by 2 pm on Monday, 17 March 2025, and to file any materials in reply by 10 am on Tuesday, 18 March. I listed the matter for 2 pm on Tuesday 18 March.

Mangoola filed no materials, and its lawyers indicated it did not wish to be heard on the application. At its request I excused Mangoola from attending the hearing of the recusal application.

The other respondent in matter LH2024/15 did not file any recusal application and nor did it file any materials in support of Tesa and HVA’s recusal application.

The substantive applicant did not file any materials in relation to the recusal application.

Legislative framework

The substantive application has been brought under section 306E of the Fair Work Act 2009 (Cth) (“the Fair Work Act”), which provides for the Commission to make a regulated labour hire arrangement order in certain circumstances. Section 306E was inserted by operation of section 3 and Schedule 1 item 73 of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (“the Closing Loopholes Act”); those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mining and Energy Union [2025] FWC 779
Case: [2025] FWC 779
Decision Date: 19 MARCH 2025

CaseChat Overview and Summary

The Mining and Energy Union sought a regulated labour hire arrangement order in respect of Tesa Group Pty Ltd, HVA Technical Services Pty Limited, and host employer Mangoola Coal Operations Pty Limited. Tesa and HVA, along with another entity whose standing has been attributed to their interest in the proceedings, Programmed Skilled Workforce Limited, filed an application seeking orders that the Deputy President be recused from the matter and that it be remitted to a different Member of the Commission. The Deputy President declined to recuse themselves. The applicants argued that the Deputy President was involved in, supported, or expressed opinions in connection with something called the "Secure Australian Jobs Plan." The Deputy President considered that the application was based on inadmissible evidence, which was excluded from consideration. Even if the application had been based on admissible evidence, the Deputy President found that the applicants had not established a logical connection between the identified matters and the apprehended deviation from deciding the case on its merits. The Deputy President found that the asserted apprehension of bias was unreasonable and dismissed the recusal application.

Orders