Ms Jane Massey v Brighter Access Ltd - [2024] FWC 2001

[2024] FWC 2001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.596 – Representation by lawyers and paid agents

Ms Jane Massey & Ors
v

Brighter Access Ltd & Ors

(U2023/12620)

Various industries

COMMISIONER CRAWFORD

SYDNEY, 30 JULY 2024

Application under section 596 for representation by lawyers and paid agents – consideration of application for recusal on grounds of perceived apprehended bias – application refused

The Applicants[1] seeking to be represented by Employee Dismissals have requested that I recuse myself from the Full Bench dealing with whether they should be granted permission to be represented on the ground of a reasonable apprehension of bias.

The submissions relied upon by the Applicants are set out in the Decision of Deputy President Wright (the Decision).[2]

I am not a member of the Paid Agents Working Group and do not need to consider the Applicants’ submissions concerning this issue.

I agree with and adopt the reasons[3] in the Decision and on that basis I reject the requests for me to recuse myself from these matters. I have determined that I will continue as a member of the Full Bench.

COMMISIONER

Hearing details:

Matter determined on the papers.

Final written submissions:

14 May 2024, for the Applicant.

SCHEDULE A

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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

Case: [2024] FWC 2001
Decision Date: 30 JULY 2024

CaseChat Overview and Summary

In the matter of Ms Jane Massey and others versus Brighter Access Ltd and others, the Fair Work Commission was asked to determine whether the applicants were entitled to be represented by lawyers and paid agents in their proceedings. The application was brought under section 596 of the Fair Work Act 2009. The applicants sought to be represented by Employee Dismissals and argued that the Commissioner should recuse themselves from the case on the grounds of perceived bias. The applicants' submissions were considered in the Decision of Deputy President Wright. The Commissioner, however, did not find any grounds for recusal, agreeing with and adopting the reasons in the Deputy President's Decision.

The legal issues the court had to resolve included whether the Commissioner had a reasonable apprehension of bias, which would necessitate their recusal, and whether the applicants were eligible to be represented by lawyers and paid agents. The Commissioner examined the submissions made by the applicants and found no basis for recusal, as they were not a member of the Paid Agents Working Group. The court's decision to reject the recusal request was based on the reasoning that there was no reasonable apprehension of bias.

The court concluded that the Commissioner would continue as a member of the Full Bench, and the request for recusal was rejected. The reasoning was that the submissions did not establish a reasonable apprehension of bias. As such, the applicants' request to be represented by lawyers and paid agents was not affected by the recusal issue. The matter was determined on the papers, with final written submissions received from the applicants on May 14, 2024. The final outcome of the application to be represented by lawyers and paid agents remains subject to further consideration by the Commission.

Orders