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The Fair Work Commission didn't become a "protagonist" when it aimed to vindicate its "theory" that an employer engaged in an elaborate sham to deprive workers of penalty rates, the Federal Court has found in rejecting an apprehended bias claim.

In two separate decisions in October 2022 and January 2023, the FWC full bench found an already-approved enterprise agreement covering employees of Hot Wok Food Makers (a subsidiary of Mantle Group Hospitality) failed to pass the better-off-overall test and that none of the voting employees were actually covered by the EA.

The bench rejected Hot Wok's selection of the voting cohort, which comprised four employees, was a "minor" error...