Ms Jane Massey v Brighter Access Ltd - [2024] FWC 2000

[2024] FWC 2000

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

DEPUTY PRESIDENT WRIGHT

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

Background and submissions

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 primary basis for the recusal requests is the following paragraph from the Full Bench decision in Samuel Howell v Elite Elevators Corporation Pty Ltd [2023] FWCFB 265 (Howell v Elite Elevators – Discontinuance Decision) and the fact that I was a member of the Full Bench in that case along with the President, Justice Hatcher and Commissioner Crawford:

“We note that the respondent’s attendance at the hearing before the President on 14 December 2023 is likely to have caused it to incur legal costs. That hearing was necessitated by Employee Dismissals’ conduct in filing an unauthorised and invalid notice of discontinuance. Section 376(2)(b) of the FW Act authorises the Commission to make an order for costs against (relevantly) a paid agent acting as representative for a party in a s 365 matter where the agent caused the costs to be incurred because of ‘an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute’. We draw attention to the fact that s 377 requires any such costs application to be filed within 14 days after the Commission finishes dealing with the dispute.”

The Applicants made the same following submission with reference to the above paragraph from Howell v Elite Elevators – Discontinuance Decision:

“… the Applicants in these proceedings are unlikely to receive a fair hearing in circumstances where Deputy President Wright and Commissioner Crawford have, on one view, gone as far as to encourage the respondent in Howell to make an application for costs against Employee Dismissals…”

The Applicants also referred to Employee Dismissals being denied procedural fairness in relation to the Howell v Elite Elevators – Discontinuance Decision, and associated proceedings conducted solely by the President.

The Applicants also referred to my potential involvement in a Paid Agents Working Group established by the President as an additional factor in favour of a finding of apprehended bias.

Legal principles

A Full Bench provided the following summary of the principles concerning apprehended bias in Woodside Energy Ltd v The Australian Workers’ Union [2022] FWCFB 192:

“The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[2] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring…

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 2000
Decision Date: 30 JULY 2024

CaseChat Overview and Summary

Ms Jane Massey and others have applied to the Fair Work Commission for permission to be represented by lawyers and paid agents in various employment disputes against Brighter Access Ltd and others. The applicants sought the recusal of Deputy President Wright from the Full Bench on grounds of apprehended bias, referencing a previous decision where Deputy President Wright was a member of the Full Bench that commented on the ability to apply for costs against Employee Dismissals. The applicants argued this indicated a bias against Employee Dismissals and a potential prejudgment of the current cases.

The legal issue before the court was whether Deputy President Wright should recuse themselves from the Full Bench due to a reasonable apprehension of bias. The court considered the principles of apprehended bias, particularly the requirement for a fair-minded observer to reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the case. The court also noted the need for a firm establishment of apprehended bias and the distinction between a potential adverse outcome and a lack of impartiality.

After reviewing the submissions and legal principles, Deputy President Wright decided not to recuse themselves. The court found that the previous decision, which was about the validity of a notice of discontinuance, did not indicate any prejudgment of the current cases or any party involved. The court emphasised that previous decisions do not necessarily imply a fixed view or bias in future cases. Deputy President Wright concluded that their prior involvement did not establish a reasonable apprehension of bias and that it would be contrary to the interests of justice to recuse themselves based solely on their past participation in another matter. Therefore, Deputy President Wright remained part of the Full Bench to decide the applications for representation by lawyers and paid agents.

Orders