Tesa Group Pty Ltd v Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA

TESA Group Pty Ltd v Mining and Energy Union [2025] FCA 922

File number(s): NSD 495 of 2025
Judgment of: RAPER J
Date of judgment: 11 August 2025
Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decisions of a Deputy President of the Fair Work Commission – whether the Commission erred by the failure of the Deputy President to recuse herself – principles of apprehended bias – application refused
EVIDENCE – Parliamentary Privileges Act 1987 (Cth), s 16(3) – scope of paragraph (c) exclusion – whether statements made in Parliament are prohibited in the context of applications for recusal on the basis of apprehended bias
Legislation:

Fair Work Act 2009 (Cth) ss 306A, 306E(2), (8), 562, 563, 627, 634, pt 2-7A

Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Parliamentary Privileges Act 1987 (Cth) s 16(3)(c)
Cases cited:

Application by Mining and Energy Union re Maules Creek [2025] FWC 880

Applications by the Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 2190

Applications by the Mining and Energy Union re Maules Creek Coal Pty Ltd [2025] FWC 1499

Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809; 299 FCR 50

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76

Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 16

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Leyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341

Locobail (UK) Ltd v Bayfield Properties [2000] 1 QB 451

McCloy v Latham [2015] NSWSC 1782

Mining and Energy Union [2025] FWC 779

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148

Rann v Olsen (2000) 76 SASR 450

Re Polites; Ex parte Hoyts Corporation Ltd [1991] HCA 25; 173 CLR 78

SZBLY v Minister for Immigration and Citizenship [2007] FCA 765; 96 ALD 70

SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; 169 ALD 579

Yukon Francophone School Board v Yukon [2015] 2 SCR 282
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 60
Date of last submission/s: 11 July 2025
Date of hearing: 18 July 2025
Counsel for the Applicants: Mr L Howard
Solicitor for the Applicants: Kingston Reid
Counsel for the 1st Respondent: Mr R Reitano
Solicitor for the 1st Respondent: Mining and Energy Union
Solicitor for the 2st Respondent: Corrs Chambers Westgarth (the second respondent filed a submitting notice)
Solicitor for the 3rd Respondent Ashurst (the third respondent filed a submitting notice)
Solicitor for the 4th
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Details
Case
[2025] FCA 922
Decision Date

CaseChat Overview and Summary

In Tesa Group Pty Ltd v Mining and Energy Union, the applicants sought judicial review of decisions made by a Deputy President of the Fair Work Commission. The applicants argued that the Deputy President should have recused herself due to apprehended bias. The Fair Work Commission's decisions were challenged on the grounds that they were made without the Deputy President disclosing relevant information that might have led to a reasonable apprehension of bias. The Federal Court was tasked with determining whether the Deputy President's failure to recuse herself constituted a legal error.

The court had to address the principles of apprehended bias and determine whether the Deputy President's conduct warranted recusal. It also needed to assess whether the Commission's decisions were flawed due to the absence of a recusal. The court was required to consider the evidence presented by the applicants, including references to Hansard, and determine whether these references should be admitted into evidence under the Parliamentary Privileges Act 1987 (Cth). The central issue was whether the Deputy President's actions amounted to a failure to observe the standards of procedural fairness, thereby invalidating the Commission's decisions.

The Court held that the applicants could not establish a case of apprehended bias, regardless of whether the Hansard references were considered. The Court found that the Deputy President's conduct did not give rise to a reasonable apprehension of bias. Consequently, the Court dismissed the applicants' claim for judicial review. The Court also briefly addressed the issue of parliamentary privilege, concluding that the occasion contemplated by s 16(3)(c) of the Parliamentary Privileges Act did not apply in this case. Therefore, the applicants' claim was unsuccessful, and the Court dismissed their application.

The Court made orders dismissing the applicants' amended originating application. It set a timeline for any application for costs, requiring such applications to be filed and served by 4:00pm on 18 August 2025. Responses to any costs application were to be filed and served by 4:00pm on 25 August 2025. If no application for costs was made within the specified timeframe, no order would be made regarding costs.

Orders

Orders of the court

1. The applicants’ amended originating application be dismissed.

2. Any application for costs, together with any evidence and submissions (of not more than four pages) be filed and served by 4:00pm on 18 August 2025.

3. Any affidavit(s) and submissions (of not more than four pages) in response be filed and served by 4:00pm on 25 August 2025.

4. If no application for costs is made within the time frame fixed by order 2 above, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To the extent that it was reasoned otherwise, in short ex tempore reasons by McDougall J in McCloy v Latham [2015] NSWSC 1782, the misstep appears to have arisen from the way that the summons pleaded that the observer was to draw inferences: at [5], [28]–[29]. Similarly, and respectfully, whilst Charlesworth J felt compelled by the principle of comity to follow McDougall J’s reasoning, it does not appear that Charlesworth J was assisted by the parties in, Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809; 299 FCR 50 per Charlesworth J at [215]–[219], as to why the reasoning in Rann v Olsen and Leyonhjelm are particularly instructive. Conclusion For these reasons, the application must be dismissed. The respondent foreshadowed making an application for costs at hearing and therefore procedural orders will be made to deal with that application.

Ratio Decidendi

Legal Principle Established

Sections 21 to 23 of the Federal Court of Australia Act 1976 (Cth) are given in the following terms:21 Declarations of right(1) The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.(2) A suit is not open to objection on the ground that a declaratory order only is sought.22 Determination of matter completely and finallyThe Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.23 Making of orders and issue of writsThe Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. The applicants have sought writs of certiorari to quash the decisions to dismiss the recusal applications and the substantive decisions made. The Court has jurisdiction because the subject matter of the dispute: an application for recusal for apprehended bias arising with respect to an application under s 306E of the FW Act, is clearly a matter arising under the FW Act within the meaning of s 562. This is because the subject matter is whether the Commission in exercising its executive function under the FW Act did so within the limits of its jurisdiction in deciding that any decision on the substantive application would not be attended by bias. The question of Parliamentary privilege does not need to be decided As will be evident from the reasoning below, the Court received into evidence, extracts from Hansard, relied upon by the applicants to support their contention as to apprehended bias. These extracts were the subject of successful objection below (and not admitted into evidence) on the basis that they purportedly fell within s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth). For the reasons which follow, I am of the view that the applicants cannot make out their claim of apprehended bias, whether the Hansard references are taken into account or not, and therefore there is no need for me to resolve any conflict within the authorities about whether the prohibition arises in the context of apprehended bias proceedings. However, I have briefly, set out at the end of my reasons, why I am of the view that, the occasion contemplated by s 16(3)(c) does not arise in this case. Organising principles There was no real dispute between the parties as to the applicable test and relevant organising principles for determining whether there is an occasion of apprehended bias.