Federal Court of Australia

Lye v Fair Work Commission [2026] FCA 95

ORDERS

THE COURT ORDERS THAT:

1.    The Commonwealth of Australia, as represented by the Bureau of Meteorology, be granted leave to intervene at the interlocutory hearing.

2.    The applicant’s application for interlocutory relief is dismissed.

3.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWLING J

INTRODUCTION

1    The applicant, Mr Jacob Lye, seeks urgent interlocutory relief restraining the Fair Work Commission from (a) “continuing, listing, progressing or determining” two appeal proceedings brought by him; and (b) requiring him to participate in those proceedings without his “reasonable adjustment requests having been lawfully considered and determined”. The proceedings are listed for hearing together before a full bench of the Commission, in five days’ time, on 18 February 2026 (the appeals hearing).

2    Mr Lye made a number of requests of the Commission for reasonable adjustments to accommodate his disabilities. Those requests were largely accommodated. This application concerns Mr Lye’s request for the Commission to make orders providing him with a workspace in order to prepare his materials for the appeals hearing. He requested that be either (a) a workspace at the Commission; (b) a workspace at his former employer and respondent in the appeals hearing, the Bureau of Meteorology; or (c) a commercial workspace, such as “WeWork”. Mr Lye says that request was refused by Vice President Gibian on 12 January 2025 and by Vice President Asbury on 29 January 2025. He says the refusals involved jurisdictional error.

3    Mr Lye says that the Commission applied the incorrect legal test in considering his request for reasonable adjustments; failed to consider the application of the Disability Discrimination Act 1992 (Cth) (DDA); failed to perform its functions consistent with its obligations to “respect and value the diversity of the work force by helping to prevent and eliminate discrimination” as provided for by s 578(c) of the Fair Work Act 2009 (Cth) (FW Act); and, took account of an irrelevant consideration that the Commission did not have such facilities “available to the public”.

4    The interlocutory relief was opposed by the Commission. It says there was no error in the consideration of Mr Lye’s request. It says that to the extent that the DDA applied, its test was met. It says the decisions correctly took account of s 578 of the FW Act, and that the availability of the facilities was a relevant consideration.

5    The Bureau made an application to intervene in the interlocutory application. That intervention was limited to written and oral submissions at the interlocutory hearing. Mr Lye did not oppose that intervention. I granted the Bureau leave to intervene. I was satisfied that the Bureau’s interests would be affected by the interim relief sought. I was satisfied that the Bureau’s contribution would be useful and different to the parties and would not unreasonably interfere with the ability of the parties to conduct the proceeding as they wished: see r 9.12 of the Federal Court Rules 2011 (Cth). The Bureau opposed the interlocutory relief.

6    For the reasons explained below, the application for interlocutory relief is refused.

WHAT IS THE TEST FOR RELIEF?

7    The applicant submits that the applicable test for interlocutory relief is that the applicant must demonstrate that there is a serious question to be tried that he is entitled to relief and that the balance of convenience favours the grant of interlocutory relief: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65]-[72] (Gummow and Hayne JJ).

8    Under that test the issue of whether the applicant has made out a serious question and whether the balance of convenience favours the grant of interlocutory orders are related inquiries: see Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ).

9    The Bureau says that in circumstances where the relief sought is more appropriately characterised as an application for a stay of the appeals hearing, the test is that the Court may only grant a stay of the appeal hearings where there are shown to be exceptional circumstances: Woodside Energy Limited v Australian Workers’ Union [2022] FCA 1391 at [30]-[43] (Katzmann J).

10    In its written submissions, the Commission submitted that the test in O’Neill applied. However, in oral submissions at the interlocutory hearing, the Commission submitted that the first order sought, the order restraining the Commission from continuing, listing, progressing or determining the appeals hearing, is in the nature of a stay and so the exceptional circumstances test should be applied. The Commission said that the O’Neill test applied in respect of the second order sought, namely, that order restraining the Commission requiring Mr Lye from participating in the appeals hearing without his reasonable adjustment requests having been lawfully considered and determined.

11    I consider that the test for relief in respect of the order that has the effect of staying the appeals hearing is the exceptional circumstances test. However, and in any event, for the reasons explained below I consider that both tests are satisfied in respect of both orders sought. Both tests are addressed below.

THE RELEVANT EVENTS

The Commission proceedings and the workspace adjustment

12    The applicant is a former employee of the Bureau. His employment was terminated on 22 October 2025.

13    On 7 June 2025, the applicant made a stop bullying application in respect of his employment at the Bureau. That application was listed before Commissioner Redford. On 15 October 2025, the applicant applied for Commissioner Redford to recuse himself in that matter. Commissioner Redford refused that application (recusal decision).

14    The applicant then made an application that the recusal decision, as well as all subsequent directions in the stop bullying application, be stayed pending the determination of an application for permission to appeal the recusal decision. On 13 November 2025, Deputy President Colman refused the applicant’s stay application (stay decision).

15    On 21 November 2025, Commissioner Redford dismissed the stop bullying application on the ground that the applicant was no longer employed with the Bureau (dismissal decision).

16    The applicant filed applications in the Commission for permission to appeal the stay decision and the dismissal decision. They are the decisions the subject of the Mr Lye’s originating application and application for interlocutory relief. As explained, those applications are listed for hearing together on 18 February 2026 (appeals hearing).

17    Following a request made by the applicant for adjustments, on 12 January 2026, Vice President Gibian held a directions hearing to deal with those adjustments. He did so in his capacity as the Commission’s National Practice Leader for Appeals. The Vice President addressed and considered each of the applicant’s requests. Several, but not all, of the requested adjustments were accommodated. Vice President Gibian declined to order a private workspace for the applicant to prepare his materials for the appeals hearing. The applicant requested that the workspace be provided by the Commission, or by the Bureau or at a commercial workspace.

18    On 29 January 2026, Vice President Asbury held a mention for the two appeals the subject of the appeals hearing. The Vice President explained that she was the presiding member for the appeals hearing and conducted the mention in that capacity. The applicant’s requested reasonable adjustments were again addressed and considered. Vice President Asbury refused to provide a workspace for the applicant to prepare his materials for the appeals hearing. The applicant again requested the workspace be provided by the Commission, or by the making of an order for the Bureau to provide a workspace, or for the Commission to provide him access to “another surrounding office” such as a “WeWork”.

19    At the commencement of the interlocutory hearing before me, the applicant confirmed that he contended the decisions of both Vice President Gibian and Vice President Asbury contained jurisdictional error and were the decisions the subject of his originating application and interlocutory application. He also confirmed that the only remaining relevant requested adjustment is the provision of a workspace to enable him to prepare his materials for the appeals hearing.

The applicant’s medical conditions and requested adjustments

20    At the interlocutory hearing, the applicant described his disabilities as:

(1)    Type 1 Diabetes

(2)    Generalised Anxiety Disorder

(3)    Attention-deficit/hyperactivity disorder

(4)    Depression

(5)    Adjustment disorder with features of post-traumatic stress disorder

21    The applicant filed an affidavit in support of his originating application. That affidavit addresses the “necessity for interim relief”. There is no medical evidence in that affidavit, or otherwise before me, demonstrating that the applicant has the above disabilities.

22    Annexed to the applicant’s affidavit filed in this proceeding is a letter from Dr Lagiseti to the Commission dated 15 August 2025. It does not set out Mr Lye’s disabilities. It addresses Mr Lye’s requested reasonable adjustments. It provides:

I write as Jacob's G.P.

May I confirm that I strongly recommend the implementation of the attached list of adjustments to processes involved in the case of my patient Jacob, in the context of his psychological limitations.

23    The attachment to that note is a list of “requested reasonable adjustments”. That list appears to be written by the applicant himself rather than Dr Lagiseti. It uses the expression “I require” and refers to “my case preparation” and elsewhere also uses the possessive “my”. That attachment does not refer to any requested reasonable adjustment for workspace, whether to enable Mr Lye to prepare his materials for the appeals hearing, or for any other purpose.

24    It appears that letter was also before Vice President Asbury at the 29 January 2026 hearing. At that hearing Vice President Asbury said that before her was “requested reasonable adjustments attached to a medical certificate”. I understand this to be a reference to the same document described at [22]-[23] above. Vice President Asbury observed that “nowhere in that requested reasonable adjustments does it require anyone to provide you with a workspace”.

25    The applicant submitted that, although he lived alone in a two-bedroom apartment, a workspace was necessary to ensure that he was able to separate work matters from home matters and ensure that his disabilities were not exacerbated. There was no medical evidence before me that the failure to provide a workspace would exacerbate the applicant’s disability.

IS THERE A SERIOUS QUESTION OF JURISDICTIONAL ERROR BY THE COMMISSION?

26    As explained above, given the different nature of the orders sought and the different submissions made by the made by the parties, I have assessed the applicant’s interlocutory relief by reference to both the serious question test in O’Neill and the exceptional circumstances test. For the reasons explained the application fails on both tests.

Does the Disability Discrimination Act apply to the exercise of the Commission’s functions?

27    Mr Lye says that the Commission failed to apply the DDA in the exercise of its functions in refusing his reasonable adjustments. He says that the obligations under the DDA apply to the Commission.

28    The Commission says that the applicant has not explained how any test or obligation under the DDA applies or is imported into the FW Act, or how in the exercise of its powers the Commission must comply with the DDA. The Commission says that to the extent there is an allegation that the Commission did not comply with the DDA, a Commission member is afforded immunity by operation of s 580 of the FW Act.

29    Section 24 of the DDA provides that is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability. I was not addressed on the application of that provision by any party.

30    Section 29 of the DDA provides that it is unlawful for a person who performs any function or exercises any power under a Commonwealth law to discriminate against another person on the ground of the other person's disability in the performance of that function or the exercise of that power. Whilst I raised that provision with the parties, none of the parties addressed me on it or presented any submissions, save the Commission said it is unclear how s 29 would operate in conjunction with s 580 of the FW Act.

31    Ultimately, the Commission submitted that even if the DDA does apply to the Commission, the way Vice President Gibian and Vice President Asbury dealt with the applicant’s requests for adjustments complied with the framework of that Act.

32    In circumstances where I was not provided with any argument or submissions on ss 24 and 29, and given my conclusions below as to how Vice President Gibian and Vice President Asbury dealt with the applicant’s requests for adjustments, it is unnecessary for me to determine whether the DDA applies to the Commission in the performance of its functions or exercise of its powers. I will assume, without reaching a view and only for the purposes of deciding the claim for urgent interlocutory relief before me, that it does.

Did the Commission apply the incorrect legal test in considering the applicant’s request for reasonable adjustments?

33    Without reaching a view but assuming that the DDA applies to the Commission in the performance of its functions, I am satisfied in any event that Vice President Gibian and Vice President Asbury took into account all of the relevant circumstances that would apply in assessing unjustifiable hardship as provided for by the DDA.

34    Section 6 of the DDA describes indirect discrimination. Section 6(2) relevantly provides that a person discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

35    Section 4 provides that an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. Section 11 provides that in determining whether a hardship that would be imposed on a person would be an unjustifiable hardship, “all relevant circumstances of the particular case must be taken into account”, including:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person.

36    Section 11(2) provides that the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

37    Having regard to the transcripts of the 12 January 2026 and 29 January 2026 hearings, I am satisfied that both Vice President Gibian and Vice President Asbury considered the substance and circumstances of the assessment and approach to unjustifiable hardship. That is evident through the matters discussed and reasons given for refusing the applicant’s request for a workspace.

38    In assessing the benefit or detriment from such an order, the Vice Presidents addressed and explained that the Commission does not have private rooms available for litigants to prepare their cases before the Commission. They addressed and explained that there are conference rooms available in the public areas of the Commission, which are intended to be used by parties to proceedings during hearings. They considered and explained that they are not available for exclusive use. Vice President Asbury considered and explained that those rooms could be used by the applicant.

39    Again, in considering any detriment from such an order, the Vice Presidents explained and considered that it was not appropriate, for a range of propriety and safety reasons, to have litigants in the private areas of the Commission.

40    In considering the effect of the applicant’s disability and any detriment to be suffered by him, Vice President Gibian provided the applicant with more time to prepare his submissions because the Commission does not have workspaces available for his exclusive use. The Vice President agreed with the applicant’s request for the deadline for filing submissions to be extended by 13 days.

41    In considering the effect of the applicant’s disability and any detriment to be suffered by him, Vice President Asbury said that Dr Lagiseti’s certificate did not provide for, request or require the provision of a workspace.

42    As to a room being provided at the Bureau, the Vice Presidents explained and considered that they did not have power to make such an order.

43    Both Vice Presidents, in assessing the benefit or detriment to the applicant, raised and considered the ability of the applicant to attend a public library to prepare his materials. The Vice Presidents raised and considered the applicant’s ability to have prepared his various hearings to that point without a workspace. They considered his ability to prepare, with his present resources, including his home.

44    As to providing a commercial workspace such as through “WeWork”, the Vice Presidents raised and considered the financial circumstances and consequences of such an order, including the budgetary and authorisation constraints.

45    I am satisfied that the above matters demonstrate that Vice President Gibian and Vice President Asbury took into account all of the relevant circumstances that would apply in assessing and considering unjustifiable hardship as provided for by the DDA.

46    I am therefore not satisfied that there exists a serious question of jurisdictional error on the basis that Vice President Gibian and Vice President Asbury applied the incorrect legal test. The Vice Presidents’ consideration of the applicant’s requests was diligent, courteous and thorough.

Did the Commission fail to perform its functions consistent with its obligations in s 578(c)?

47    Section 578(c) provides that in performing functions or exercising powers in relation to a matter under a part of the FW Act, the Commission must take into account the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of (among other things) physical or mental disability. The parties did not direct me to any authority as to the scope and meaning of s 578(c). The Bureau contended that the provision is facultative and not mandatory. It is not necessary for me to determine that question. In any event, and for the reasons explained above as to the manner in which the Vice Presidents dealt with the request for workspace, I am not satisfied of a serious question of any failure with respect to s 578(c).

Did the Commission take account of an irrelevant consideration?

48    In his written submissions, the applicant says that the Vice Presidents took into account an irrelevant consideration by refusing his request by reference to considerations such as “not available to the public” or “institutional convenience”. I am not satisfied that those considerations are irrelevant. The lack of those facilities, or the inconvenience in ordering them, is relevant, at least, to the likely detriment arising from such an order.

Conclusion on serious question

49    In all of those circumstances I consider that any serious question is, at best, very weak.

DOES THE BALANCE OF CONVENIENCE FAVOUR THE RELIEF?

50    The Commission did not make submissions as to the balance of convenience in this matter, however they did draw the Court’s attention to a number of matters that have assisted my consideration of the balance of convenience.

51    On 8 December 2025, the Commission listed the appeals for hearing and made directions as to the timing for the filing of material. The Commission explained that those directions were amended twice to allow the applicant to have further time to file and serve his material. The Commission noted further its obligation under s 577(1)(b) of the FW Act, to perform its functions in a manner that is quick; and its obligation under s 577(1)(a), to perform its functions and exercise its powers in a manner that is fair and just to all parties.

52    The applicant contends that the balance of convenience strongly favours the granting of interlocutory relief. He submits that the prejudice that he may suffer is participatory and structural. He said it is participatory in that it affects his “actual participation in the hearing without proper preparation”; and structural in that “procedural prejudice becomes embedded in [his] process with the Fair Work Commission, and participation fairness cannot be retrospectively reconstructed once that has occurred within [the] process”.

53    I am not satisfied that the applicant will be denied participation in the appeals hearing. Even accepting any difficulties arising from his disabilities, the applicant has had at least from early December 2025 when he filed his appeals, to prepare for those appeals. Directions were in place from 8 December 2025. The applicant has some time, albeit short, between the date of this decision and the appeals hearing. The applicant prepared submissions, in the application before me, within 24 hours of my orders.

54    I do not consider the prejudice claimed by the applicant in this regard to be a factor that weighs heavily in the applicant’s favour. I am not satisfied that any lack of preparation, in respect of a hearing that the applicant has known about for over two months, constitutes significant prejudice. I am not satisfied of the applicant’s explanation for his lack of preparation for the hearing. As stated at [25], there was no medical evidence before me that the failure to provide a workspace would exacerbate the applicant’s disability.

55    As to what the applicant describes as “structural” prejudice that embeds procedural prejudice into the proceedings before the Commission, for the reasons explained above I am not satisfied that the failure to order a workspace embeds such procedural prejudice. As I stated at [49], I am satisfied that there is, at best, a very weak serious question of jurisdictional error by the Commission.

56    The Bureau submits that there is no significant prejudice to the applicant if the stay is refused. It says the applicant maintains the ability to appear at the appeals hearing and present his submissions. It submits he has avenues of review if he is unsuccessful in the Commission. I accept those matters weigh in the balance.

57    By contrast, the Bureau submits that there is some detriment to it if the applicant’s interlocutory application is granted and the appeals are not heard and determined. It says that further delay may prejudice the Bureau’s ability to respond to the applicant’s allegations, and that difficulties may arise in the Bureau’s ability to put its case where relevant employees may have left their employment. It reiterated the Bureau’s desire to have the matter before the Commission finally determined as expeditiously as possible. I accept these matters weigh in the balance.

58    The Bureau also submits that, given the applicant has participated in all of the hearings in the Commission, and the hearings in this Court, without the provision of the workspace in which he seeks, the Court should view the interlocutory relief sought as “a means by which the [a]pplicant seeks to stifle the hearing and determination of the [Commission proceedings] which he instituted and in doing so, impede the Bureau’s ability to have them finally heard and determined”. At the hearing before me, the applicant accepted that his participation in the hearings in this Court and in the Commission without the provision of a workspace is a relevant matter that could be taken into account. However, the applicant submitted that it was not a “relevant consideration overall” because the fact he can do some things does not necessarily mean he can do others. That is, the fact he has coped in some circumstances does not mean he can and will cope in all circumstances. In weighing up the balance of convenience, I take into account the applicant’s participation in these proceeding and the proceedings before the Commission without the provision of a workspace. However, I do not weigh this consideration heavily against the applicant, given I do not know all of the facts and circumstances behind the applicant’s participation.

59    In all of these circumstances, I do not consider the balance of convenience favours the grant of injunction.

60    Whether the applicant has made out a serious question and whether the balance of convenience favours the grant of interlocutory orders are related inquiries. Where I have found, at best, a very weak serious question, and that the balance does not favour the grant of the relief sought, it follows that the application must fail.

ARE THERE EXCEPTIONAL CIRCUMSTANCES?

61    As explained, and for completeness, I have also considered whether the applicant has shown exceptional circumstances which could warrant the making of the first order sought by the applicant, for what the Commission and the Bureau submit is an application for a stay of the appeals hearing.

62    The authorities make clear that the power to order a stay is discretionary and such an intervention should not take place lightly. The likely outcome if a stay is not granted must be so adverse and severe that the attainment of justice requires interlocutory intervention: see Woodside [41] and [72] (Katzmann J) citing Newcrest Mining Limited v Industrial Relations Commission (NSW) [2005] NSWCA 85; 139 IR 72 at [5] (Bryson JA).

63    In determining whether exceptional circumstances exist, questions of convenience are relevant, but not simply as the balance of convenience. The test is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other: see Woodside [41] (Katzmann J) citing Newcrest at [5] (Bryson JA).

64    It is necessary to demonstrate a strong case for a stay. It may be relevant to inquire whether the applicant has a strong case for final relief, but the existence of a strong case for final relief, as opposed to a strong case for a stay, is not a necessary condition: BHP Coal Pty Ltd v Mining and Energy Union [2025] FCA 1116 at [39], [41], [47], [50] and [52] (Wheelahan J).

65    I do not consider there to be exceptional circumstances which warrant the making of the order sought by the applicant. The refusal of a stay would not have consequences “so adverse and severe that the attainment of justice requires interlocutory intervention”: Woodside [41] and [72] (Katzmann J) citing Newcrest at [5]. I do not consider the applicant to have a strong case for stay. Relevantly, the applicant also does not have a strong case for final relief.

66    As to the case for stay, I have found that there is no significant prejudice to the applicant if a stay is refused: at [53]-[59]. As I stated at [56], applicant maintains the ability to appear at the hearing before the Full Bench of the Commission and present his arguments. If he is unsuccessful, he may have other rights to challenge that decision. The kinds of exceptional circumstances that warrant a stay do not arise in this case.

67    Relatedly, as to the case for final relief, I have found that, at best, a very weak serious question of jurisdictional error arises by the Commission.

68    Accordingly, I am satisfied that no exceptional circumstances arise in the present matter.

change to the orders sought after the hearing

69    After the conclusion of the hearing, the applicant emailed my chambers and stated that he does not press orders 1 and 2 set out at paragraph [1] above. Rather, he seeks a number of orders provided to the Commission in draft on 4 February 2026 (draft orders 3-6). These draft orders were not previously provided to the Bureau. Draft order 3 is in similar terms to order 2 above and is as follows:

3. Interim relief to preserve procedural fairness pending determination

Pending the final determination of this proceeding, the Fair Work Commission is restrained from continuing the appeal proceedings unless and until the Commission has:

•    properly considered and determined the Applicant’s requests for reasonable adjustments in accordance with:

•    the Disability Discrimination Act 1992 (Cth), and

•    the Fair Work Act 2009 (Cth); and

•    afforded the Applicant a procedurally fair opportunity to participate in the proceedings with those reasonable adjustments in place.

70    Draft order 4 seeks that the parties have liberty to apply on 48 hours’ notice, draft order 5 seeks that the proceeding be listed for case management, and draft order 6 seeks that costs be reserved.

71    These orders were said to be provided by the applicant “for clarity”. There was no lack of clarity at the hearing. The applicant unequivocally confirmed at the hearing that he sought orders 1 and 2, and the hearing was conducted on that basis. The Commission and the Bureau were not provided with the opportunity to address the Court on draft orders 3 to 6. Insofar as the applicant seeks to amend his interlocutory application after the hearing and without proper explanation, I refuse that amendment. In any event, for the reasons explained above, the application for draft orders 3 to 6 would fail.

DISPOSITION

72    For all of the reasons set out above the applicant’s application for interlocutory relief is dismissed. The Commission did not address me on costs. I will reserve the costs of the Commission and Bureau.

Associate:

Dated:    13 February 2026