Hansson, Janell v Bronze Hospitality Pty Ltd - [2019] FWC 2911

1

Fair Work Act 2009 
s.394—Unfair dismissal

Janell Hansson

v

Bronze Hospitality Pty Ltd
(U2018/6613)

COMMISSIONER WILSON MELBOURNE, 1 MAY 2019

Application for an unfair dismissal remedy. Remittal from appeal. Application for member to 
no longer deal with matter. Principles associated with member ceasing to deal with matter; 
no recusal.

[1] On 18 September 2018, I issued a decision dealing with a jurisdictional objection to 
the continuation of Janell Hansson’s application for unfair dismissal remedy against her 
former employer, Bronze Hospitality Pty Ltd.1 The decision found in favour of Ms Hansson, 
with pertinent findings being that “Bronze Hospitality was not a small business employer at 
the time it dismissed Ms Hansson because it did not employ fewer than 15 employees” and 
that “Ms Hansson has completed the minimum employment period and was a person 
protected from unfair dismissal”.2

[2] After an appeal by the Respondent to the Full Bench, on 20 February 2019, two of 
three grounds of appeal were upheld and the original decision quashed “insofar as it 
determined that Bronze was not a small business employer and that the minimum 
employment period was six months”.3 However, it was found that “the Commissioner’s 
conclusion that all of Ms Hansson’s casual service counts towards her period of employment 
was correct”.4 The Full Bench remitted to me for redetermination the jurisdictional objection 
that Bronze Hospitality was a small business employer, and that Ms Hansson had not served 
the minimum employment period of one year.5

[3] On 12 March 2019, Directions were issued by me listing the redetermination matter 
for hearing and for the filing and service of any further material on which either party sought 
to rely.  On 4 April 2019, Bronze Hospitality, through its Director Andrew Thorpe, provided 
an email to the Commission requesting that I no longer deal with Ms Hansson’s unfair 
dismissal application for reason of apprehended bias.

[4] After receipt of this application, Directions were issued providing parties with an 
opportunity to file further materials relating specifically to the apprehended bias application 
and seeking an indication from the parties as to whether they sought to be heard on the 
subject. Parties were advised that if a hearing was required that the matter would be heard by 
me on 17 April 2019. 

[2019] FWC 2911 [Note: This decision has been quashed - refer to Full 
Bench decision dated 21 May 2019 [2019] FWCFB 3456]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb3456.htm


[2019] FWC 2911

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[5] Only Bronze Hospitality responded to this direction, with submissions on their behalf 
provided on 15 April 2019. Both Bronze Hospitality and Ms Hansson attended the hearing, 
with Bronze Hospitality represented by Mr Thorpe.

[6] There is a necessity for me to determine the application in the first instance.6

[7] There are five grounds of apprehended bias set out in Bronze Hospitality’s written 
submissions, and a sixth was added in the course of the hearing. Overall, Bronze Hospitality 
argues that:

“The reasonable apprehension of bias in this case arises from:
a) the manner in which the hearing was conducted;
b) the manner in which the evidence was considered;
c) the manner in which Bronze’s submissions were considered;
d) the substantial errors of fact in the findings; and
e) the manner in which certain legal issues were ruled-upon.”7

[8] The five grounds identified in the written outline of submissions are as follows:

 Leading questions were asked by me of Ms Hansson in the hearing at first instance, 
amounting to “the adducing of evidence in a manner that appeared designed to assist 
the Applicant’s case”;

 Incorrect factual findings were made against the evidence, with particular reference 
to paragraphs [8] and [25] of the first instance decision;

 Bronze Hospitality’s submissions were misstated in the first instance decision, with 
particular reference to paragraphs [33] and [34];

 Other findings by me were found by the Full Bench to have been misconceived and 
regarded by Bronze Hospitality to have been “cavalier in the extreme” and a reversal 
of the onus of proof;

 The identification of the Respondent in the decision title was incorrect, being shown 
on the published decision as “Bronze Hospitality T/A The Harbour Terrace”, when it 
should have been recorded as “Bronze Hospitality Pty Ltd”.8

[9] The further matter relied upon by Bronze Hospitality was raised in the course of the 
hearing on the matter of apprehended bias and was referred to by Mr Thorpe in the following 
manner:

“The further issue was just on a factual basis, the manner in which you dealt with the 
question of David Walters' authority to sign the letter of termination and that issue 
occupied your mind it appears and it appears in the transcript, when it wasn't an issue 
relevant.  The question about whether Ms Hansson had been dismissed wasn't an issue.  
The only issue that was before the Tribunal at that time - the Commission at that time 
was whether or not the minimum period of employment had been served and questions 
relating to whether Bronze Hospitality was a small business employer.








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The manner in which this question about authority was dealt with, quite frankly again 
I don't want to have an argument about it, but it was a strange approach that was taken.  
It appeared to be irrelevant to the matters that were before the Court - before the 
Tribunal and we say that it's a further matter that causes Bronze Hospitality to have 
that apprehension.

And as I have said in my submissions, the test is not whether there is bias; the test is 
whether a third party that is uninvolved in the matter could form the view that there 
appeared to be bias.  And we say that, particularly in respect of the question that was 
put and then the factual findings that were made that were completely unsupported by 
the evidence and appeared to be relying upon the answers that might have been 
expected from the questions can cause an objective party to go, "This Commissioner 
had made up his mind."”9

[10] This matter raised by Mr Thorpe appears to be connected with an exchange in the first 
instance hearing, in which questions were asked about the person who Ms Hansson said had 
introduced himself to her as “the new venue manager of The Harbour Terrace” with him also 
having told her “he managed four other pubs that also have to do with the Strzelecki Group”, 
as well as him having signed her termination letter.10

[11] Central to consideration of a matter before the Commission is an obligation for the 
presiding member to ensure procedural fairness to all parties in their dealings with them. The 
Full Bench has articulated the need to apply the principles of natural justice and to afford 
procedural fairness in this way: 

“[21] The impartiality of the Commission is central to a fair hearing. Bias, whether 
actual or apprehended, connotes the absence of impartiality. Applied to Commission 
members the governing principle is that a member is disqualified if a fair minded 
observer might reasonably apprehend that the member might not bring an impartial 
mind to the resolution of the question that the member is required to decide. The 
principle gives effect to the requirement that justice should both be done and be seen to 
be done.

...

[28] It is clear that members of the Commission are bound to act in a judicial 
manner and the principles of natural justice are applicable to hearings before the 
Commission. The term ‘natural justice’ in the context of administrative decision 
making has been equated to an obligation to act fairly or to accord procedural fairness. 
The requirements of natural justice or procedural fairness are not prescribed in a fixed 
body of rules. What is required is judicial fairness and what is fair in one case may be 
quite different from what is required in another. 

[29] The Commission’s obligations regarding the manner in which it must perform 
its functions and exercise its powers are set out in ss.577 and 578 of the Act. 
Relevantly, the Commission must act in a manner that:

 is fair and just;

 is quick, informal and avoids unnecessary technicalities;








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 is open and transparent; and

 takes into account equity, good conscience and the substantial merits of the case.

[30] These obligations may be seen as incidents of a general duty on the 
Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to 
the justice system and is at the very heart of the Commission’s obligations to the 
parties who appear before it.11“ (references omitted)

[12] While applications may be made for a Member to cease dealing with a matter for 
reason of actual or apprehended bias, the Commission’s Fair Hearings Practice Note makes 
the point that a Member should not too readily agree to disqualify themselves12 and follows 
decisions of the Full Bench on the subject; see for example Oram v Derby Gem Pty Ltd13; 
UFU v MEFSB14. The cases in turn follow the proposition enunciated by the High Court in Re 
JRL; Ex parte CJL,15 in which Mason J observed:

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias 
in such cases as Watson and Livesey16 has led to an increase in the frequency of 
applications by litigants that judicial officers should disqualify themselves from sitting 
in particular cases on account of their participation in other proceedings involving one 
of the litigants or on account of conduct during the litigation. It needs to be said loudly 
and clearly that the ground of disqualification is a reasonable apprehension that the 
judicial officer will not decide the case impartially or without prejudice, rather than 
that he will decide the case adversely to one party.”17

[13] The distinction between claims of actual bias and apprehended bias was succinctly 
summarised by Deputy President Asbury in Woolston v Uniting Church in Australia Property 
Trust (Q) T/A Blue Care Bli Bli Aged Care Facility:18

“[12] As the High Court of Australia put it in Ebner v the Official Trustee19  ”…bias 
whether actual or apparent, connotes the absence of impartiality.”20 A claim of actual 
bias requires proof that the decision maker approached the issues with a closed mind or 
had prejudged the matter and for reasons of either partiality in favour of a party or 
some form of prejudice affecting the decision, could not be swayed by the evidence in 
the case at hand.21 The test for apprehended bias is whether “a fair minded lay 
observer might reasonably apprehend that the [decision maker] may not bring an 
impartial mind to the question the [decision maker] is required to decide”.22

[13] Actual bias is assessed by reference to conclusions that might reasonably be 
drawn from evidence about the actual views and behaviour of the decision maker and 
requires clear and direct evidence that the decision maker was in fact biased. It has 
been pointed out that in the absence of an admission of guilt or a clear and public 
statement of bias from the decision maker, actual bias will be difficult to 
establish. 23 Apprehended bias is assessed objectively by reference to conclusions that 
may reasonably be drawn about what an observer might conclude about the possible 
views and behaviour of the decision maker. In relation to apprehended bias, a Court 
may only need to be satisfied that a fair minded and informed observer might conclude 
that there was a real possibility that the decision maker was not impartial.24“ (citations 
in original)








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[14] Bronze Hospitality places no reliance on a claim of actual bias from the Commission 
as presently constituted.

[15] The Courts have held that the possibility of the apprehension of bias must be “firmly 
established” in the case of an application for disqualification for suspected prejudice; for 
example see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss 
Group25 and Laws v Australian Broadcasting Tribunal26, which latter enunciation has been 
applied by the Full Bench, including in the matters of Oram v Derby Gem Pty Ltd27 and UFU 
v MEFSB28. Of itself, prior dealing with a matter is not a reason for the decision maker to no 
longer deal with a matter “when the qualifications for membership of the tribunal are such 
that the members are likely to have some prior knowledge of the circumstances which give 
rise to the issues for determination or to have formed an attitude about the way in which such 
issues should be determined or the tribunal's powers exercised. Qualification for membership 
cannot disqualify a member from sitting”. Prior involvement “with associations or with 
governments who are frequently parties to proceedings before the Commission cannot be 
sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the 
prior acquisition of "skills and experience" amount to such a disqualification.”29

[16] Of course, the appearance of bias to a reasonable observer is to be avoided. Such 
application is distinct from an application for disqualification on the ground of actual bias.

[17] The High Court set out the objective test of the “fair-minded lay observer” in Johnson 
v Johnson30 as follows:

“It has been established by a series of decisions of this Court that the test to be applied 
in Australia in determining whether a judge is disqualified by reason of the appearance 
of bias (which, in the present case, was said to take the form of prejudgment) is 
whether a fair-minded lay observer might reasonably apprehend that the judge might 
not bring an impartial and unprejudiced mind to the resolution of the question the 
judge is required to decide.”31

[18] The test is repeated in Ebner v Official Trustee32 and is based upon the need for public 
confidence in the administration of justice. The High Court observed in Johnson v Johnson
about the test being an objective one that:

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to 
emphasise that the test is objective, is founded in the need for public confidence in the 
judiciary, and is not based purely upon the assessment by some judges of the capacity 
or performance of their colleagues. At the same time, two things need to be 
remembered: the observer is taken to be reasonable; and the person being observed is 
‘a professional judge whose training, tradition and oath or affirmation require [the 
judge] to discard the irrelevant, the immaterial and the prejudicial’”33

[19] In the earlier case of Livesey v NSW Bar Association34, the test was referred to in this 
way (in the context of an appeal in which the Appellant alleged apprehended bias on the part 
of judges who had, in an earlier case, made adverse findings about the credit of a person 
whom the Appellant might bring forward as a witness):








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“It was common ground between the parties to the present appeal that the principle to be 
applied in a case such as the present is that laid down in the majority judgment in Reg. 
v. Watson; Ex parte Armstrong. That principle is that a judge should not sit to hear a 
case if in all the circumstances the parties or the public might entertain a reasonable 
apprehension that he might not bring an impartial and unprejudiced mind to the 
resolution of the question involved in it. That principle has subsequently been applied 
in this Court (see, e.g., Re Judge Leckie; Ex parte Felman; Reg. v. Shaw; Ex parte 
Shaw) and in the Supreme Court of New South Wales (see, e.g., Barton v. Walker). 
Although statements of the principle commonly speak of “suspicion of bias”, we prefer 
to avoid the use of that phrase because it sometimes conveys unintended nuances of 
meaning.”35

[20] The application of the objective test of the “fair-minded lay observer” is set out in 
Ebner v Official Trustee as a two step process requiring identification of relevant matters 
followed by connection of those matters with the case being decided. The High Court 
articulated the application of the principle as follows:

“The apprehension of bias principle admits of the possibility of human frailty. Its 
application is as diverse as human frailty. Its application requires two steps. First, it 
requires the identification of what it is said might lead a judge (or juror) to decide a 
case other than on its legal and factual merits. The second step is no less important. 
There must be an articulation of the logical connection between the matter and the 
feared deviation from the course of deciding the case on its merits. The bare assertion 
that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will 
be of no assistance until the nature of the interest, and the asserted connection with the 
possibility of departure from impartial decision making, is articulated. Only then can 
the reasonableness of the asserted apprehension of bias be assessed.”36

[21] The “fair-minded lay observer” is taken to have some knowledge of the actual 
circumstances of the case;

“In assessing what the hypothetical reaction of a fair-minded observer would be, we 
must attribute to him or her knowledge of the actual circumstances of the case. In 
other words, the observer would take account of the circumstances which led to the 
bringing of the defamation action and the filing of the defences. While it would not be 
proper to attribute to the fair-minded observer the understanding that a lawyer would 
have of the capacity of the members of the Tribunal to make an independent decision 
uninfluenced by previously expressed opinions and conflicting interests (see Vakauta 
v. Kelly), such an observer must be taken to appreciate that the defences filed by the 
Tribunal do not amount to assertions of belief or admissions.” 37

[22] In its consideration of applications of apprehension of bias, the Commission has 
followed these principles, both as to the objective test contained within, and the two steps of 
identification of matters and logical connection (see for example UFU v MFESB38, Priestly v
Department of Parliamentary Services39; Re Metro Trains40; Re: Construction, Forestry, 
Maritime, Mining and Energy Union41).  Application of the apprehension of bias principle to 
the work of the Commission and its predecessors has taken account of its statutory role and 
purpose; see In R v Commonwealth Conciliation and Arbitration Commission; Ex parte 
Angliss Group42; Re Finance Sector Union of Australia and Another Ex Parte Illaton Pty 
Ltd.43








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[23] In UFU v MEFSB44, an appeal decision of the Australian Industrial Relations 
Commission, the Full Bench acknowledged:

“The starting point for our consideration of this issue is the generally accepted 
proposition that members of the Commission are bound to act in a judicial manner and 
the principles of natural justice are applicable to hearings before the Commission. The 
term “natural justice” in the context of administrative decision making has been 
essentially equated to an obligation to act fairly or to accord procedural fairness. As 
Kitto J observed in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth): 
“What the law requires in the discharge of a quasi-judicial function is judicial 
fairness.”

The rule against bias is one of the principles of natural justice.

It follows that the failure of a Commission member to disqualify themselves, in 
circumstances where statements which they have made give rise to a reasonable 
apprehension of bias, is a failure to accord procedural fairness.”45 (references omitted)

[24] Re: Construction, Forestry, Maritime, Mining and Energy Union46 considered the 
conduct of a member of the Commission in retweeting a political criticism that referenced the 
CFMEU. In an appeal over a subsequent argument of apprehended bias, the Full Bench, noted 
in relation to the second of the Ebner steps, that the “logical connection” was an apprehension 
that endorsement of the referenced criticism would lead a fair-minded lay observer to 
conclude the member could not bring an impartial mind to applications for right of entry 
permits, the test for which is that each applicant requires being found as a fit and proper 
person. The Full Bench then made the following findings about application of the relevant 
tests to circumstances which included the retweet as well as subsequent sitting without demur 
on other CFMMEU matters: 

“[20] In reaching this conclusion, we do not accept the CFMMEU’s submission that this 
history may not be taken into account in determining whether there is a reasonable 
apprehension of bias or that, to the extent that the “retweet” may (contrary to our 
earlier conclusion) have given rise to a reasonable apprehension of bias, this 
was necessarily ineradicable by consequent conduct. As was made clear in Ebner, all 
of the relevant circumstances need to be taken into account, and whether a statement or
conduct on the part of a decision-maker creates an ineradicable reasonable 
apprehension of bias must be assessed by reference to the totality of the circumstances. 
As was stated in Johnson v Johnson47 (albeit in relation to a different factual scenario):

“No doubt some statements, or some behaviour, may produce an ineradicable 
apprehension of prejudgment. On other occasions, however, a preliminary 
impression created by what is said or done may be altered by a later statement. 
It depends upon the circumstances of the particular case.”48

[21] We do not consider that the full passage from the judgment of Dawson J 
in JRL referred to in the Decision and the CFMMEU’s submissions stands for any 
different principle. Dawson J said:








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“It is an understandable tendency to assume the existence of a reasonable basis 
for supposing bias where there is, as in this case, an apparent departure from 
the proper standards of judicial behaviour. But the whole of the circumstances 
must be considered and such a conclusion must be firmly established and 
should not be reached lightly: Reg. v. Commonwealth Conciliation and 
Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 
553-554; Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 
CLR 248, at p 262; Reg. v. Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 
32 ALR 47, at pp 50-51. Moreover, the whole of the circumstances are not 
confined to the conduct said to afford reasonable grounds for suspecting a lack 
of impartiality. They include what was done by the judge subsequently, which 
may be sufficient to eradicate any reasonable apprehension of bias 
notwithstanding an earlier lapse in the observance of proper procedures. It is 
clear that an initial failure to hear a party or to allow him to put his case may be 
cured by giving him an appropriate opportunity to be heard at a later stage. 
See Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at pp 99, 101, 125, 129. 
It seems to me to follow that it must also be possible to remove an 
apprehension of bias on the part of a judge which might otherwise arise out of 
the failure to hear a party. After all, that kind of bias is not bias through interest 
or preconceptions existing independently of the case. Suspicion of bias of the 
latter kind, where there are grounds for it, may well be ineradicable. See Reg. 
v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. 
Pty. Ltd.[1953] HCA 22; (1953) 88 CLR 100, at p 116. Here the suggested bias 
is an inability to act impartially which is said to have been demonstrated by the 
fact that representations were made to, or evidence was heard before, the judge 
in the absence of the parties. Remembering that both parties were absent at the 
time, it does not seem to me to have been a situation which was necessarily 
incapable of correction either as regards fairness or as regards the appearance 
as well as the fact of impartiality.”49

[22] We also reject the CFMMEU’s submission that the Senior Deputy President made 
a decision to recuse himself on 27 July 2017 on the ground of reasonable apprehension 
of bias by reason of the “retweet”. There is no record of any such decision having been 
made (as distinct from a decision on the part of the Senior Deputy President, as head 
of the Organisations Panel, to simply re-allocate the matter). Paragraph [11] of the 
Decision confirms that the Senior Deputy President did not reach any final conclusion 
concerning the recusal application made at that time. We consider that this was a 
situation of the type referred to in Ebner as follows:

“[20] This is not to say that it is improper for a judge to decline to sit unless the 
judge has affirmatively concluded that he or she is disqualified. In a case of 
real doubt, it will often be prudent for a judge to decide not to sit in order to 
avoid the inconvenience that could result if an appellate court were to take a 
different view on the matter of disqualification. However, if the mere making 
of an insubstantial objection were sufficient to lead a judge to decline to hear or 
decide a case, the system would soon reach a stage where, for practical 
purposes, individual parties could influence the composition of the bench. That 
would be intolerable.”50








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[25] In John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v Mr Ronaldo 
Salazar,51 (Salazar) the Full Bench was called to consider an appeal in the matter of an unfair 
dismissal application. The decision dealt with the specific circumstances of procedural 
fairness to unrepresented parties requiring “their day in court”, with a duty of the tribunal to 
provide a fair hearing, but not a positive advantage to a self-represented litigant.

[26] In the original hearing associated with Salazar, the Applicant was self-represented, 
which is the case here as well. While the Respondent in Salazar sought to be legally 
represented, that was refused at first instance

[27] The appeal in Salazar surrounded the anticipation, which was not fulfilled in the 
original hearing, of the Respondent being able to cross-examine the applicant on the matters 
he sought the Commission at first instance to take into account. The Full Bench considered in 
detail the meaning of procedural fairness in the context of a matter such as Mr Salazar’s 
observing the following about matters involving self-represented parties;

“[22] Once an application is made the Commission must hear the case, as a Full Bench 
of the Commission said in Michelletto v. Korowa:

“The Right to a Hearing 
[14] It is implicit in the statutory provisions which we have referred to that 
once an applicant has elected to have his or her application determined by 
arbitration he or she acquires a right to have the case heard. There is a 
corresponding duty in the Commission to hear the applicant’s case. The nature 
of the applicant’s right is, in the time-honoured phrase, a right to their day in 
court. The right to a hearing is not unqualified. Circumstances may render it 
just that something less than a full hearing is appropriate. For example, the Act 
specifically provides for summary dismissal of an application if there is clearly 
no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case 
(s.170CIB).” 

[23] This obligation to hear a case requires the Commission to give the parties the 
opportunity to be heard on the various aspects of the case: Re Media Entertainment 
and Arts Alliance; Ex part Arnel. In that decision the High Court cited Re Australian 
Railways Union; Ex parte Public Transport Corporation:

“But the wide scope given to the Commission in determining the relief which it 
will give does not absolve it from the obligation to observe the rules of 
procedural fairness in exercising its arbitration function. In Re Australian Bank 
Employees Union; Ex parte Citicorp Australia Ltd this court pointed out that it 
was well settled that the Conciliation and Arbitration Commission was bound 
to act judicially and that the Commission, as its successor, is bound to do 
likewise. The court went on to point out that one aspect of the duty to act 
judicially is the duty to hear a party and to allow him or her a reasonable 
opportunity to present his or her case and, coupled with that duty, is the duty to 
consider the case put. And in Re Media Entertainment and Arts Alliance; Ex 
parte Hoyts Corp Pty Ltd the court said that the Commission has a duty in 
considering an application to afford a party a reasonable opportunity to allow 
his or her case to be put.”








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[24] The role of the Commission member when an applicant appears in person also 
needs to be taken into account. The duty is to provide for a fair hearing but not to 
provide a positive advantage to a self represented litigant. As Samuels JA said in 
Rajski v Scitec Corporation Pty Ltd :

‘‘. . . the advice and assistance which a litigant in person ought to receive from 
the court should be limited to that which is necessary to diminish, so far as this 
is possible, the disadvantage which he or she will ordinarily suffer when faced 
by a lawyer, and to prevent destruction from the traps which our adversary 
procedure offers to the unwary and untutored. But the court should be astute to 
see that it does not extend its auxiliary role so as to confer upon a litigant in 
person a positive advantage over the represented opponent....At all events, the 
absence of legal representation on one side ought not to induce a court to 
deprive the other side of one jot of its lawful entitlement. ...An unrepresented 
party is as much subject to the rules as any other litigant. The court must be 
patient in explaining them and may be lenient in the standard of compliance 
which it exacts. But it must see that the rules are obeyed, subject to any proper 
exceptions. To do otherwise, or to regard a litigant in person as enjoying a 
privileged status, would be quite unfair to the represented opponent.’’

[25] In Minogue, the Full Court of the Federal Court recognised that the trial judge 
must strike a balance.

“A trial Judge often faces something of a dilemma. While he or she may be 
bound to provide some advice and assistance to an unrepresented litigant, the 
authorities make it clear that the Judge should not intervene to such an extent 
that he or she cannot maintain a position of neutrality in the litigation. 
However, the boundaries of legitimate intervention are flexible and will be 
influenced by the need for intervention to ensure a fair and just trial.”

[26] It has been held that legitimate intervention includes ascertaining the rights of 
parties. In Downes & Anor v Maxwell Richard Phys & Co Pty Ltd (in liq) [2014] 
VSCA 193 at [25], Osborne JA said:

“Nevertheless in Neil v Nott & Anor the High Court recognised that a frequent 
consequence of self-representation is that the Court must assume the burden of 
endeavouring to ascertain the rights of parties which are obfuscated by their 
own advocacy.”

[27] The boundaries of legitimate intervention must be considered in the context of the 
requirement for the Commission to proceed in a manner which is quick, informal and 
avoids unnecessary technicalities. (Section 577 of the Act) Consistent with this duty 
the Commission, as with its predecessors, often accepts statements from the bar table 
on matters of fact. As Buchanan J observed “the members of FWA have a statutory 
mandate to get to the heart of matters as directly and effectively as possible”. 
However, the Commission must also act in a manner that is fair and just. The parties 
should be made aware of the consequences of making unsworn assertions from the bar 
table when the statements are likely to be contested.”52 (endnotes omitted)








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[28] Bronze Hospitality’s contentions of apprehended bias are set out above and are 
founded on the conduct of the hearing at first instance and the decision made from that 
hearing.

[29] The appeal decision records that there were three grounds of appeal; first, that the 
conclusion that four casual employees were each employed on a regular and systematic basis 
and thereby were to be included in the analysis of whether Bronze Hospitality was a small 
business employer was in error;53 second and relatedly, that the conclusion in the first instance 
decision that the minimum employment period was only six months and not one year was in 
error;54 and third it was in error to find that Ms Hansson’s employment had been on a regular 
and systematic basis with a reasonable expectation of ongoing employment and thereby to be 
taken into account in determining her total period of employment.55 The Full Bench upheld 
the first two of the appeal grounds but not the third.56 It quashed parts of the first instance 
decision and remitted those matters for redetermination, making the following findings:

“[46] It follows from our conclusions in respect of the first and second grounds of 
appeal that the Commissioner’s decision was affected by appealable error. On this 
basis, the appeal should be upheld and the decision quashed, insofar as it determined 
that Bronze was not a small business employer and that the minimum employment 
period was six months. The decision is otherwise confirmed.

[47] In our view, the appropriate course is for us to remit Bronze’s jurisdictional 
objection that it was a small business employer to Commissioner Wilson for 
redetermination. This will afford to the parties an opportunity to call or seek to have 
produced further evidence of the working arrangements of the four contested 
employees, and potentially the nine additional employees.

[48] We order as follows:

(1) The first and second grounds of appeal are upheld;

(2) The decision ([2018] FWC 5665) is quashed, insofar as it determined that 
Bronze was not a small business employer and that the minimum employment 
period was six months;

(3) The decision is otherwise confirmed; and

(4) Bronze’s jurisdictional objection that it was a small business employer, and 
that Ms Hansson had not served the minimum employment period of one year, 
is remitted to Commissioner Wilson for redetermination.”

[30] Bronze Hospitality’s submissions on the matter of apprehended bias point to a number 
of paragraphs in the first instance decision which it suggested evidences an apprehension of 
bias. In particular it refers to [8], [25], [33], [34], [37] and [42]. It also refers to the conduct of 
the hearing at first instance before me on 7 September 2018.

First Apprehended Bias Ground








[2019] FWC 2911

12

[31] The First Apprehended Bias Ground deals with the subject of leading questions having 
been asked of Ms Hansson. The matter contended by Bronze Hospitality involves this 
exchange:

“THE COMMISSIONER:  What I need you to do is just tell me how that employment 
came about, how you think it was regular and systemic and then how it changed into 
ongoing employment after the end of January 2018.

MS HANSSON:  Okay.  So when I applied for the job via Seek, I recall that pretty 
much the very next day I went in for a trial and received a casual position that night.  
The reason I believe it was regular and systematic was just due to the fact I was doing 
more hours sometimes as a casual than I even did as a full timer; up to sometimes 70 
hours a week and no less than sort of eight fortnights at 65 hours per fortnight.  That is 
when after about a month I got offered a full time position that ours a didn't take effect 
until 22 January, so a month after I was already offered the position.

THE COMMISSIONER:  Who came to offer you the full time position?

MS HANSSON:  At the time it was actually the original venue manager, Jarrod, but 
he was dismissed at the time and then I guess the next senior manager, Hamish Laird, 
then continued to give me the position.

THE COMMISSIONER:  All right.  Does that mean Jarrod said to you, "We want you 
now to work on a permanent basis?"  Was he the first one to say that?

MS HANSSON:  I was basically asked from the moment I set foot in The Harbour 
Terrace to basically be the reliable one.  I would say, yes, from the moment I was there 
I was asked - it was going to be busy, it was Christmas period, school holidays, and to 
expect I would have a lot of hours.  I think on one, even, fortnight I did something like 
80 hours.

THE COMMISSIONER:  All right.  Are you saying then that when you started in 
November, you believed - well, let me turn this around.  What did you believe about 
what would be occurring with your future employment?

MS HANSSON:  Well, I would assume after starting at the beginning of the holiday 
period that I was going to expect regular work due to the fact that they told me it was 
their busiest period.

THE COMMISSIONER:  All right.  Am I correct in saying that you were told initially 
it was a trial period of employment?

MS HANSSON:  No, just for the actual two hours I did originally.

THE COMMISSIONER:  I see.  That's what you meant.  All right.”57

[32] Bronze Hospitality also expressed a concern about the question posed in PN 4658, first 
posed as a question about “November”, and then about Ms Hansson’s belief at the start of her 
employment.








[2019] FWC 2911

13

[33] In context the questions asked of Ms Hansson were nothing more than an endeavour to 
elicit an understanding of her case. She said, with some degree of ambiguity in response to an 
open question that the person who offered her a full-time position was “Jarrod, but he was 
dismissed at the time and then I guess the next senior manager, Hamish Laird, then continued 
to give me the position”. What could be made of that response without clarification is open to 
debate. The questions that followed, “Does that mean Jarrod said to you, "We want you now 
to work on a permanent basis?" Was he the first one to say that?” were an endeavour to clarify 
the response. The proposition that Jarrod had been the person to offer Ms Hansson the full-
time position had already been mentioned by her. The question referencing “November” was 
withdrawn and an open question put to Ms Hansson instead.

[34] A fair-minded lay observer would not find the exchange to be inappropriate or beyond 
the boundaries of legitimate intervention in order to proceed in a manner which is quick, 
informal and avoids unnecessary technicalities so as to get to the heart of matters as directly 
and effectively as possible, but without a failure to be seen to act in a manner that is fair and 
just to each party.

[35] Neither party was represented by a lawyer or paid agent and the material before the 
Commission was somewhat basic and not susceptible to a comprehensive narrative. Other 
than the framing of the question itself, Bronze Hospitality point to no other conduct that may 
lead to the view that Bronze Hospitality were not accorded a fair opportunity to present their 
case. The fair-minded lay observer listening to the exchange between myself and the 
Applicant would have been unlikely to discern an unreasonable or even unusual intervention 
in the case that she was endeavouring to put. The same observer would have noticed similarly 
leading questions being directed to Mr Thorpe as well as to Ms Hansson.59

[36] To the extent that the foregoing interaction with the parties in the first instance hearing 
and within First Apprehended Bias Ground amounts to a failure to accord either party 
procedural fairness, such was not raised on appeal or found to be so by the Full Bench.  
Instead, the relevant grounds of appeal related to the analysis conducted in the decision and 
the subsequent findings made. The First Ground does not reasonably identify what it is said 
might lead me to decide the remitted case other than on its legal and factual merits; and does 
not provide an articulation of the logical connection between what has been said and the 
feared deviation from the course of deciding the case on its merits.

Second Apprehended Bias Ground

[37] Bronze Hospitality’s Second Apprehended Bias Ground deals with the argument that 
there were incorrect factual findings against the evidence. The ground particularly refers to 
paragraphs [8] and [25] of the first instance decision. Those paragraphs may reasonably be 
regarded as connected with Appeal Ground 3, being an analysis of Ms Hansson’s working 
arrangements leading to the finding made in the first instance decision at paragraph [26] that 
Ms Hansson’s employment as a casual was regular and systematic. Given that Appeal Ground 
3 was not upheld by the Full Bench, which found the conclusion that Ms Hansson’s 
employment as a casual was regular and systematic “was plainly open to the Commissioner”, 
with there being “an ample basis in the evidence for the Commissioner to conclude that Ms 
Hansson’s period of employment was on a regular and systematic basis” and it being a 
“correct conclusion”,60 no apprehension of bias reasonably arises from the those aspects of 
Bronze Hospitality’s submissions on the Second Apprehended Bias Ground dealing with 
paragraphs [8] and [25] of the first instance decision.








[2019] FWC 2911

14

Third and Fourth Apprehended Bias Ground 

[38] Bronze Hospitality’s Third Apprehended Bias Ground deals with paragraphs [33] and 
[34] of the first instance decision putting forward that the decision misstated the company’s 
submissions on its preferred construction of the Act that short term casual employment was 
incapable of being considered as regular and systematic employment within the meaning 
s.383 of the Act whereas the submissions were in fact that regular and systematic employment 
does not commence on the first day of casual employment but rather develops over a period 
of time. Bronze Hospitality submits that by incorrectly stating the Respondent’s submissions 
it “ignored Bronze’s position and failed to consider the point of time from which the 
Applicant been employed on a regular and systematic basis AND had a reasonable 
expectation of continuing employment” thereby overstating the Applicant’s service.61

[39] The Respondent’s Fourth Apprehended Bias Ground deals with the findings made in 
paragraphs [37] and [42] of the first instance decision arguing that in relation to paragraph 
[37], that the Full Bench found the test that had been applied had been misconceived as well 
as being “a reversal of the onus of proof”.62

[40] Bronze Hospitality argues in these proceedings in respect of paragraph [42] of the first 
instance decision that the reasoning applied was invalid. The paragraphs referred to are within 
the section of the first instance decision dealing with Bronze Hospitality’s potential status as a 
small business employer, leading to a finding that four casual employees should be included 
within the count for the purpose of assessing the company’s status as a small business. On 
appeal, the Full Bench rejected the analysis undertaken with the following findings being 
made:

“[26] For these reasons, we consider that the Commissioner’s conclusion that the four 
‘contested’ casuals and the nine additional casuals were employed on a regular and 
systematic basis was not open on the evidence. The consequence of this is that there 
was no basis for the Commissioner to determine that Bronze was not a small business 
employer.”63

[41] The circumstances of Bronze Hospitality’s submissions in relation to its Third and 
Fourth Apprehended Bias Grounds include the acceptance of its appeal ground by the Full 
Bench with the attendant consideration of whether further submissions and evidence were 
required on the subject.

[42] It was for the Full Bench to form the view whether it was appropriate in the 
circumstances for the matter to be remitted to me for further hearing and indeed it formed that 
view. The fair-minded lay observer of the proceedings would likely be aware that at the point 
of a successful appeal, the Full Bench will often to consider whether a rehearing can be 
undertaken by the Member at first instance. The same observer would likely accept that in the 
absence of any later statements or conduct which might give rise to an apprehension of bias, 
the Member concerned is most likely to re-determine the matter impartially and in accordance 
with the findings made by the Full Bench and without bias to any party. To that extent there 
cannot reasonably be an apprehension of bias and the Third and Fourth Apprehended Bias 
Ground are likely otiose.








[2019] FWC 2911

15

[43] In relation to those grounds, Bronze Hospitality has pointed to no real apprehension of 
bias, with its submissions on the subject amounting to nothing more than an argument that the 
likelihood of embarrassment on my part from having to deal with the same subject twice 
amounts to apprehended bias. No fair-minded lay observer would conflate embarrassment 
with bias. To do so would result in Full Benches being barred from remitting matters to 
members at first instance. The Third and Fourth Apprehended Bias Grounds do not 
reasonably identify what it is said might lead me to decide the remitted case on the basis of 
anything other than on its legal and factual merits; and do not provide an articulation of the 
logical connection between what has been said and the feared deviation from the course of 
deciding the case on its merits.

Fifth Apprehended Bias Ground 

[44] The Fifth Apprehended Bias Ground is in relation to the title given to the Respondent 
in the published first instance decision, being “Bronze Hospitality T/A The Harbour Terrace”.  
While the title used was consistent with Ms Hansson’s originating application, such is 
contrary to an indication given by Mr Thorpe in the course of the hearing to the effect that the 
company Bronze Hospitality Pty Ltd is a corporation which provides staff to the business of 
The Harbour Terrace with The Harbour Terrace and its operating entity, Norfolk Hobbs Pty 
Ltd having no employees.64 This indication was overlooked in the course of preparing the 
final decision for publication. It is unlikely that any observer of the proceedings would get to 
a point of considering that there is an apprehension of bias because a correction was 
overlooked. The Respondent has not identified what may lead me to decide the remitted case 
other than on its legal and factual merits; and have not provided an articulation of the logical 
connection between what has been said and the feared deviation from the course of deciding 
the case on its merits.

Sixth Apprehended Bias Ground 

[45] The Sixth Apprehended Bias Ground deals with the assertion that the questions 
regarding Mr Walters were inappropriate. The submission set out above that the questions 
were a “strange approach” to be taken and irrelevant.

[46] In context, the following are the exchanges in the first instance hearing regarding Mr 
Walters:

“THE COMMISSIONER:  All right.  Ms Hansson, can I just ask you to - well, actually 
before I do that, I've just got a question of Mr Thorpe.  You have dealt with the 
employee matters.  I just wanted to also ask you about the contention that Ms Hansson 
put forward which was that on occasion there were staff swapped between The 
Harbour Terrace and the Coventry thing, whatever it is - I'm not quite sure.  What do 
you what to say about that?  Did that occur?

MR THORPE:  Well, that's not the case.  There is a consultant who Bronze Hospitality 
uses from time to time named David Walters.  I expect Ms Hansson will know of him.  
He comes in and gives consulting advice from time to time, and he consults to a 
number of businesses.”65

And further;








[2019] FWC 2911

16

“THE COMMISSIONER: All right. Thank you. In that case I just want to turn to 
you, Ms Hansson, to make sure you've had this opportunity. I heard the respondent to 
say fairly firmly that there is no connection between The Harbour Terrace and the 
other businesses which may operate around Mr Thorpe and the other people in his 
circle. Now, is there anything you want to say about that particular proposition, 
Ms Hansson?

MS HANSSON: I do know David. I have never been told that he was a consultant.
He introduced himself as the new venue manager of The Harbour Terrace, but he also 
told me he managed four other pubs that also have to do with the Strzelecki Group.

THE COMMISSIONER: All right.

MS HANSSON: He is the one that also, sorry, sent me the contract for the work when 
I had problems - look, I'm so sorry, I just didn't expect that they're the kind of 
questions I would be asked.

THE COMMISSIONER: All right. The proposition which was put, I guess contrary 
to you - - -

MS HANSSON: I'm sorry, he also signed - he was the one that also signed my 
termination letter.

THE COMMISSIONER: Who was?

MS HANSSON: David Walters.

THE COMMISSIONER: All right. Look, I'll come to that in a moment. The 
proposition which is put by the respondent is that these other businesses have nothing 
to do with the running of The Harbour Terrace; that they're not associated entities, 
they do not share resources, employees or premises. Is that a proposition you agree 
with?

MS HANSSON: Sorry? Was that for me?

THE COMMISSIONER: Yes. Do you want me to repeat that?

MS HANSSON: Yes, please.

THE COMMISSIONER: You say this is all part of a larger company and I should 
take into account employees of the larger operation. Against that the respondent says, 
well, as a matter of fact that's not the case. Instead what is the case is that The 
Harbour Terrace is one business that is on its own and has nothing to do with these 
other businesses. They don't share employees, premises or resources. Is that 
something you agree with?

MS HANSSON: I disagree with that, yes.

THE COMMISSIONER: All right. What do you want to say about why you 
disagree?








[2019] FWC 2911

17

MS HANSSON: I just basically would like to say that regardless of if it's a bigger 
business or not, there is enough employees just at The Harbour Terrace alone to 
warrant the minimum 15. The fact that there is manager swapping between the 
Coventry and The Harbour Terrace just goes to show me that there must be either a 
larger entity and - if it's not a consultant agency, it has got to be something else.

THE COMMISSIONER: All right.

MS HANSSON: David does run both bars apparently as the venue manager, as well.

THE COMMISSIONER: All right. Now, can I just turn to that matter about 
Mr Walters. Mr Thorpe, the applicant says that the termination letter was signed by 
Mr Walters. Is that the case?

MR THORPE: Yes.

THE COMMISSIONER: Is that in the material before me?

MR THORPE: I think Ms Hansson has put the letter before you.

THE COMMISSIONER: Yes, I can see it now. All right. He was acting for and on 
behalf of Bronze Hospitality at the time?

MR THORPE: He was - - -

THE COMMISSIONER: I think that would be a yes, surely, if he signed the letter.

MR THORPE: Yes, well - - -

THE COMMISSIONER: What was his authority?

MR THORPE: I drew the letter after consulting with Katie Poland, the director. I had 
reports about the incident that prompted the dismissal. Ms Hansson was scheduled to 
come in that day for a shift, but because it had been determined that the incident 
warranted instant dismissal, the letter was sent out to The Harbour Terrace which is 
close to where Ms Hansson lives and a process server was sent to collect it. It needed 
to be signed and Mr Walters signed it.

THE COMMISSIONER: What was his authority to do so?

MR THORPE: Directed to do so by a director.

THE COMMISSIONER: Who was the director who directed it?

MR THORPE: Katie Poland.

THE COMMISSIONER: I'm still not clear about his authority. Can I direct a person 
on the street to sign the letter?








[2019] FWC 2911

18

MR THORPE: Is that a question for me?

THE COMMISSIONER: Yes.

MR THORPE: I would need to know the circumstances.

THE COMMISSIONER: Well, the circumstances of dismissing an employee from 
one of your businesses. Mr Thorpe, it's a serious question. What was his authority?

MR THORPE: No, no, well, he - there was an exchange of emails. Mr Walters had 
conducted an investigation into the incident; had obtained statements from one or two 
managers and an employee. Those statements had been shared with me and with the 
then sole director, Katie Poland. It was then determined that there would be a 
dismissal. The director - because it was important that Ms Hansson be given notice of 
her dismissal prior to preparing herself and coming to work, Mr Walters was given 
authority by email to sign the letter of dismissal.

THE COMMISSIONER: What was his purpose in the business that day?

MR THORPE: I don't know. He was visiting the premises at that time and I arranged 
- I had to work out the best way, the quickest way, to get the letter to Ms Hansson. I 
learned that he was at The Harbour Terrace premises and so I arranged for that letter to 
be sent to him, and Katie Poland instructed him to sign it.

THE COMMISSIONER: All right.

MS HANSSON: Just so you know, on the letter it also doesn't have his name; it's just 
a signature. I only worked out that it was David just by the way it was written.

THE COMMISSIONER: All right.

MS HANSSON: And it was given to me two days after they had already decided to 
sack me.

THE COMMISSIONER: Was your dismissal communicated to you by Mr Walters?

MS HANSSON: No, it was not.

THE COMMISSIONER: So who was it communicated to you by?

MS HANSSON: Nobody.

THE COMMISSIONER: What does that mean? You first learned about it from the 
letter - - -

MS HANSSON: I had some stranger knock on my front door two hours before I was 
meant to start. He wouldn't give me his name, where he was from and he handed me 
and my husband a white envelope with a letter in it.”66








[2019] FWC 2911

19

[47] The context of the foregoing questions and answers is relatively simple – what is the 
involvement of Mr Walters in the company and was he an employee of the Respondent who 
should be included in the count of employees for the purposes of ascertainment of whether it 
was a small business or not? Mr Walters had been described by the Respondent as a 
“consultant” who gives “consulting advice”, yet Ms Hansson asserted he had signed her 
termination letter.  It was unclear at the time the questions were asked whether Mr Walters’ 
authority to terminate Ms Hansson’s employment was because he was an employee of Bronze 
Hospitality, noting that the term “consultant” is prone to ambiguity in workplace settings, like 
other similar terms such as “contractor”.  If Mr Walters was an employee of Bronze 
Hospitality, then, depending on the overall evidence, he may need to be counted for the 
purposes of assessing whether Bronze Hospitality was a small business employer.  A fair-
minded lay observer of the proceedings may well have seen uncertainty about the overall 
business arrangements of the Respondent and what had been contended by either party in 
relation to the actual running of the business from which the Applicant was dismissed. The 
same observer would be unlikely to have discerned any lack of fairness in the questions.

[48] The Sixth Apprehended Bias Ground appears to assert that an enquiring mind about 
the overall circumstances of the matter and the meaning of the business arrangements faced 
by the Commission gives rise to an apprehension of bias. The Sixth Ground does not 
reasonably identify what it is said might lead me to decide the remitted case other than on its 
legal and factual merits; and does not provide an articulation of the logical connection 
between what has been said and the feared deviation from the course of deciding the case on 
its merits.

[49] In overall context, it is unlikely that a fair-minded lay observer would form the view 
that any of the apprehended bias grounds, whether singularly, in combination or in total, 
indicate a predisposition on my part or otherwise show an inability to hear the matter 
impartially to conclusion. Accordingly, the application that I no longer deal with the matter 
for reason of apprehension of bias is refused.

[50] The matter remitted to me by the Full Bench will be relisted for hearing and 
determination at the earliest opportunity. There are two matters remaining for determination; 
an interlocutory matter relating to the content and return date of an Order for the Production 
of Documents (following an application by Ms Hansson), and the hearing of the matter 
remitted by the Full Bench.  In this regard:

 a mention hearing in relation to the Order for the Production of Documents will be 
convened by telephone on Monday, 6 May 2019 at 4.15pm AEST/2.15pm WST; and

 the hearing of the matter remitted by the Full Bench will be by video-conference on 
Monday, 27 May 2019 at 2.00pm AEST/12.00pm WST.

COMMISSIONER

Appearances:


OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL




 



[2019] FWC 2911

20

J. Hansson on her own behalf. 
A. Thorpe for the Respondent. 

Hearing details:

2019. 
Melbourne (VC to Perth):
17 April. 

Printed by authority of the Commonwealth Government Printer

PR707681

                                               
1 [2018] FWC 5665.
2 Ibid, [43] – [44].
3 [2019] FWCFB 1099, [46].
4 Ibid, [44].
5 Ibid, [48].
6 See Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility

[2016] FWCFB 278 , at [10] “In the Australian legal system, any application that a decision-maker, whether a judge of a 

court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or 

herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in 

the first instance by the decision-maker.”, with reference to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 

at [74].
7 Exhibit R5, Bronze Hospitality Outline of Submissions (Apprehended Bias), pp. 2.
8 Ibid, pp.2 – 5.
9 Transcript, 17 April 2019, PN 22 – 24.
10 Transcript, 7 September 2018, PN 280 – 287.
11 Viavattene v Health Care Australia [2013] FWCFB 2532, at [21] - [30].
12 Fair Hearings Practice Note, [28]; https://www.fwc.gov.au/resources/practice-notes/fair-hearings
13 (2003) 134 IR 379, at [109].
14 (2005) 141 IR 438, at [78].
15 (1986) 161 CLR 342, pp. 352, per Mason J.
16 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW. Bar Association (1983) 151 CLR 288.
17 Ibid, pp.352.
18 [2015] FWC 5853; appealed, but findings not disturbed on appeal (see [2016] FWCFB 278).
19 (2000) 205 CLR 337.
20 Ibid at 348.
21 Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].
22 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.
23 Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, pp. 4-5 citing Sun v 

Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.
24 Ibid at pp. 4-5.
25 (1969) 122 CLR 546, pp. 553, per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ.
26 (1990) 170 CLR 70, pp. 100, per Gaudron and McHugh JJ.
27 (2003) 134 IR 379, at [107].
28 (2005) 141 IR 438, at [76].
29 Re Polites & Anor; Ex parte The Hoyts Corporation Pty Ltd & Ors (1991) HCA 25, 38 IR 114, pp. 118 – 120, per 

Brennan, Gaudron & McHugh JJ.
30 (2000) 201 CLR 488.
31 Ibid, pp 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
32 (2000) 205 CLR 337, at pp. 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ.
33 (2000) 201 CLR 488, pp. 493.
34 (1983) 151 CLR 288.
35 Ibid, pp. 293-294.






https://www.fwc.gov.au/resources/practice-notes/fair-hearings


[2019] FWC 2911

21

                                                                                                                                                  
36 (2000) 205 CLR 337, pp. 345.
37 (1990) 170 CLR 70, pp. 87 – 88, per Mason CJ and Brennan J; see also p.95, per Deane J, p.98, Gaudron and McHugh JJ.
38 (2005) 141 IR 438, at [79] and [84], per Ross VP, Hamilton DP, Gay C.
39 [2011] FWA 672, at [11], per Watson VP.
40 Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union; Communications, Electrical, Electronic, 

Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Association of Professional Engineers, 

Scientists and Managers, Australia, 2013 FWC 4034, at [33].
41 [2019] FWCFB 214.
42 (1969) 122 CLR 546.
43 (1992) 42 IR 352.
44 (2005) 141 IR 438.
45 Ibid, at [61] - [63].
46 [2019] FWCFB 214 (now under judicial review in the Federal Court).
47 [2000] HCA 48, 201 CLR 488.
48 Ibid at [14] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
49 [1986] HCA 39, 161 CLR 342 at 371-2.
50 [2000] HCA 63, 205 CLR 337 at [20] per per Gleeson CJ, McHugh, Gummow and Hayne JJ. 
51 [2014] FWCFB 7813. 
52 Ibid. 
53 [2019] FWCFB 1099, [7].
54 Ibid.
55 Ibid, [27].
56 Ibid, [26], [45].
57 Transcript, 7 September 2018, PN 40 – 50.
58 Transcript, 7 September 2018. 
59 See, for example, Transcript, 7 September 2018, PN 164, 166.
60 Ibid, [36] – [37].
61 Exhibit R5, pp.4.
62 Ibid.
63 [2019] FWCFB 1099.
64 Transcript, 7 September 2018, PN 158 – 168.
65 Ibid, PN 274 – 275.
66 Ibid, PN 280 – 329.

Cases cited by this decision: