JH Briefs is a blog summarising interesting takeaways from cases decided in the past week.
Robert Dolevski & Ors -v- Virgin Australia Airlines Pty Ltd  FWC 740
Members of the Commission should be reluctant to disqualify themselves in relation to an application for apprehended bias and any apprehended bias must be firmly established .
The test of apprehended bias is from the perspective of a “fair-minded lay observer” and involves a two-step process :
- First, the identification of what it is said might lead the person to decide a case other than on its legal and factual merits; and
- Second, an articulation of the connection between the matter and the feared deviation from the course of deciding the case on its merits.
(see also Ebner v Official Trustee (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ))
The Commissioner’s membership in the Respondent’s frequent flyer program and the holding of a “Club” membership issued by the Respondent did ‘not disclose a predisposition of judgement’  and the Member did not recuse himself .
Sonia Louise D’Ambrosio -v- Fair Work Ombudsman  FWC 846
In section 372 general protections applications, jurisdiction need not be determined by the Fair Work Commission in advance of a conference – s 372 applications simply require an allegation of a ‘contravention of this Part’ ( and ).
Contrast this with s 365 general protections applications involving dismissal where jurisdictional matters such as whether an employee has been dismissed must be resolved before the powers conferred by s 368 can be exercised ( and see also Coles Supply Chain Pty Ltd v Milford  FCAFC 152, 300 IR 146).
Importantly, and often overlooked where an individual alleges breaches of their general protections that do not involve dismissal :
- employers may elect not to participate in a conciliation in the Fair Work Commission; and
- individuals may elect to bypass the Fair Work Commission all together.
Kathryn Roy-Chowdhury -v- The Ivanhoe Girls’ Grammar School  FWC 849
It is important for all parties to be aware that, although the Fair Work Commission generally applies them, the normal rules of evidence do not apply ( and see s 591 of the Fair Work Act 2009 (Cth)).
The Fair Work Commission continues to emphasise that it is not a matter for it to determine the validity or otherwise of a direction or mandate imposed, in this instance, by the Victorian State Government .
The introduction of a COVID-19 vaccination policy may not amount to ‘change’ for the purposes of consultation obligations in an applicable modern Award  – contrast this with the Full Bench’s decision in in CFMMEU v Mount Arthur Coal Pty Ltd  FWCFB 6059 where the Work Health and Safety Act 2011 (NSW) applied.