A Fair Work Commission Member should not hear a case if there is a reasonable apprehension that they are biased.
Reasonable apprehension of bias means that a party to a matter before the Commission has a genuine concern that the Commission Member might not be impartial and as a result may not deal with the matter in a fair and balanced way.
The question of a reasonable apprehension of bias is a difficult one involving matters ‘of degree and particular circumstances [which] may strike different minds in different ways’.
A reasonable apprehension of bias involves deciding whether a ‘fair-minded lay observer’ would reasonably apprehend that the decision-maker would not decide a case impartially and without prejudice. It is not bias where a decision-maker decides a case adversely to one party.
Reasonable apprehension of bias may arise in the following four (sometimes overlapping) ways:
While it is important that justice must be seen to be done, it is of equal importance that Commission Members discharge their duty to hear the evidence and decide the matter. This means that they should not accept the suggestion of apprehended bias too readily.
In deciding whether a Commission Member should be disqualified for the appearance of bias, the Commission will consider whether a reasonable and fair minded person might anticipate that the Commission Member might approach the matter with a partial or prejudiced mind.
The question is not whether the decision-maker’s mind was blank, but whether their mind was open to persuasion.
The expression of a provisional view on a particular issue, or warning parties of the outcome of a provisional view, is usually entirely consistent with procedural fairness.
Generally, a Commission Member will not be disqualified in circumstances where it is found that the Member, before being appointed as a Member, gave legal advice or represented a person who now appears before them as a party in their capacity as a Member. However the Member should not hear a matter if the Member:
The general rule is that a Commission Member should disclose any independent knowledge of factual matters that affect or may affect the decision to be made.
A central element of the justice system is that a matter must be decided based on the evidence and arguments presented. A judge (or Commission Member) should not take into account, or indeed receive, secret or private representations from a party or from a stranger about the case they are to decide.
 Dain v Bradley  FWA 9029 (unreported, Booth DP, 29 October 2012) ; citing British American Tobacco Australia Services v Laurie (2011) 242 CLR 283 .
 ibid., 88.