Yifei Ren v Curtin University - [2025] FWC 1266

[2025] FWC 1266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Yifei Ren
v

Curtin University

(C2025/924)

DEPUTY PRESIDENT BINET

PERTH, 27 MAY 2025

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – recusal application

On 7 February 2025 Mr Yifei Ren (Mr Ren) filed an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) to deal with a dispute with Curtin University (Curtin) pursuant to the dispute resolution procedure contained in clause 65 of the Curtin University Enterprise Bargaining Agreement 2022-2025 (Agreement).

The dispute concerns Mr Ren’s entitlement to apply for conversion to continuing employment pursuant to clause 12.5 of the Agreement.

An email was sent to the parties on 19 February 2025 notifying them that the Application had been allocated to my Chambers and that I proposed to list the Application for a conference to explore the resolution of the Application and/or determine the further programming of the Application. Neither party indicated any objection to engaging in conciliation.

On 25 February 2025, in response to an invitation to do so in the email of 19 February 2025, Curtin filed a response to the Application.

The Application was subsequently listed for a conciliation conference (Conference)

from 1pm (AWST) to 2pm (AWST) on 5 March 2025. Ms Esther Power (Power) was granted leave to represent Mr Ren at the Conference and attended the Conference with Mr Ren. Ms Kate Warren and Ms Xime Hastings attended on behalf of Curtin.

The issues in dispute could not be resolved at the Conference and therefore on 6 March 2025 directions for the filing of materials in advance of a hearing were issued to the parties (Directions).

The Directions required the parties to prepare an agreed statement of facts and law to narrow the issues between the parties. The parties commenced the preparation of those materials.

On 13 March 2025, Mr Ren made an application that I recuse myself from further dealing with the Application (Recusal Application). In light of this the directions issued on 6 March 2025 were vacated and new directions were issued on 19 March 2025 for the filing of materials in relation to the Recusal Application (Recusal Directions). The Recusal Directions inter alia required Mr Ren to file submissions setting out the legal basis for his Recusal Application and copies of any authorities he relied upon. Mr Ren failed to do so within the timeframe set out in the Recusal Directions. Amended Recusal Directions were issued on 2 April 2025 granting him additional time to file his materials (Amended Recusal Directions). Considerable support was extended by my Chambers to Mr Ren to assist him to prepare and file his materials.

The Recusal Directions and Amended Recusal Directions invited Curtin to file materials in response to the Recusal Application.…

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: [2025] FWC 1266
Decision Date: 27 MAY 2025

CaseChat Overview and Summary

Yifei Ren filed an application with the Fair Work Commission (FWC) to resolve a dispute with Curtin University over his entitlement to apply for conversion to continuing employment under clause 12.5 of the Curtin University Enterprise Bargaining Agreement 2022-2025. The primary issue before the Deputy President was whether they should recuse themselves from the case due to alleged bias. The legal issues included whether the Deputy President's conduct during conciliation meetings and communications with the parties warranted recusal and whether the perceived bias was reasonable and substantial.

The Deputy President examined the evidence and submissions from both parties, including Mr Ren’s witness statement and Curtin’s response, to determine if there was a reasonable apprehension of bias. The Deputy President addressed each of Mr Ren’s allegations, such as prejudgement of the case and differential treatment of evidence, and found no basis for recusal. The Deputy President clarified that their questions during conciliation were aimed at understanding the legal and evidentiary basis of the positions of the parties, and were not indicative of a closed mind or bias. The Deputy President also noted the complexity of the factual matrix and the extensive materials filed by Mr Ren, which naturally led to more in-depth discussions about his submissions.

Ultimately, the Deputy President concluded that there was no reasonable apprehension of bias that would warrant recusal. The Deputy President found that their conduct during the conciliation and communication with the parties was consistent with their role in facilitating a resolution and preparing for potential arbitration. The Deputy President also highlighted that their questions were directed at the legal representatives and not Mr Ren personally, given his limited knowledge of employment law and FWC processes. The Deputy President’s findings were based on the totality of the circumstances and the principles of apprehended bias as articulated in relevant case law.

Orders