STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 YEARLY REVIEW OF MODERN AWARDS - FAMILY & DOMESTIC VIOLENCE LEAVE CLAUSE AND OTHER MATTERS

4 yearly review of modern awards – Family & Domestic Violence Leave Clause – reconstitution of Full Bench.

[1] On 27 February 2017 Vice President Watson published his decision in this matter. The Vice President’s resignation from the Fair Work Commission took effect on 28 February 2017. At the time of Vice President Watson’s resignation, the other two members of the relevant Full Bench (Deputy President Gooley and Commissioner Spencer) had not published their decisions and they sought my advice as to whether they may proceed to finalise and publish a decision in the matter, having regard to s.622 of the Fair Work Act 2009 (Cth) (FW Act).

[2] On 27 March 2017 I published a Statement¹ indicating that a hearing in relation to this issue would be listed for 4 April 2017 and inviting interested parties to make submissions, and, in particular, to address the following questions:

1. Are Deputy President Gooley and Commissioner Spencer permitted to issue a decision in this matter? If so, would their decision, taken together with the decision of the Vice President, constitute the Full Bench’s decision?

2. Alternatively, does s.622 of the Fair Work Act require that the President appoint another Member to the Full Bench in order for the Full Bench to issue a decision?

3. If the answer to question 2 is yes and if the President appoints a new Member to the Full Bench, are the parties content for the newly constituted Full Bench to proceed to determine the application after reviewing the materials filed and the transcript of the hearing, without the need for a further hearing?

[3] The Australian Council of Trade Unions (ACTU), Australian Chamber of Commerce and Industry (ACCI) and Australian Industry Group (Ai Group) lodged written submissions and appeared at a hearing on 4 April 2017 together with the Australian Meat Industry Council (AMIC), Master Plumbers Association of NSW and The Pharmacy Guild of Australia.²

[4] During the hearing on 4 April 2017, I invited the parties to file further written submissions commenting on the decision of the New South Wales Supreme Court in Morton v The Transport Appeal Board & Anor No. 1³ (Morton), although noting its different statutory context. I also invited the parties to comment on what was to be done in relation to another matter that was being dealt with by the same Full Bench (albeit at an earlier stage) AM2015/2–Family Friendly Work Arrangements. The ACTU, Ai Group and AMIC subsequently lodged further written submissions.

[5] During the hearing on 4 April 2017 I also indicated that I would issue a further Statement setting out the other matters that were before Full Benches in which the former Vice President was a presiding Member and which had not been completed prior to his resignation. That Statement was issued on 18 April 2017.⁴ It also invited parties interested in those matters to file submissions by 4.00 pm Friday 5 May 2017 indicating whether they continue to pursue their claims and whether the Full Bench should be reconstituted in the respective matter.

[6] At the conclusion of the hearing on 4 April 2017 I informed the parties that I was contemplating referring to the Federal Court of Australia questions of law as to how a decision in matter AM2015/1 can now be concluded. I also indicated that if I did move down that path, I would express a provisional view attaching the questions and the relevant factual matrix and providing interested parties with an opportunity to comment.⁵

[7] There appears to be no authority as to the operation of the relevant provisions of the FW Act in the present circumstances and this is reflected in the quite different propositions put forward in the submissions of the parties that appeared at the hearing on 4 April 2017. Outlines of those submissions follow.

[8] The ACTU submits that Deputy President Gooley and Commissioner Spencer are permitted to publish their decision(s) in AM2015/1 (but not to take any other step in this matter) and that their decision(s), together with the decision of Vice President Watson published on 27 February 2017, will form the decision of the Full Bench. As soon as Deputy President Gooley and Commissioner Spencer have issued their decision(s), Vice President Watson “becomes unavailable to continue dealing with the matter” within the meaning of s.622 of the FW Act, and I must appoint a new Member under s.622 before any additional step in the matter can be taken.⁶

[9] The ACTU disagrees with ACCI’s submission (outlined below) that a new Member must be appointed to the Full Bench before Deputy President Gooley and Commissioner Spencer may issue their decision(s), and also disagrees with the Ai Group’s submission that s.622 does not apply in the present circumstances.

[10] In relation to AM2015/2, I understand the ACTU’s submission to be that I must direct another Member to form part of the Full Bench to further deal with that matter.⁷

[11] ACCI submits that upon the retirement of Vice President Watson the Full Bench ceased to be properly constituted and s.622(3) required me to “fill the position of the unavailable member”⁸. Deputy President Gooley and Commissioner Spencer are not permitted to issue decisions or otherwise exercise modern award powers or functions until the Full Bench is reconstituted. (Although, ACCI submits, if they did so then s.624 would protect their decisions from being invalid merely because the Full Bench was not properly constituted.) The new Member appointed to the Full Bench would not be required to issue his or her own decision and would have to “take into account” the advanced state of the matter and former Vice President Watson’s decision. I understand ACCI’s submission to be that the decision of the reconstituted Full Bench would be comprised of the decisions of the former Vice President, Deputy President Gooley, Commissioner Spencer and any decision issued by the new Member.⁹ The Pharmacy Guild of Australia supports ACCI’s submissions.¹⁰

[12] ACCI also submits in relation to matter AM2015/2 that the Full Bench must be reconstituted.¹¹

[13] Ai Group’s primary contention is that s.622 does not apply in the current context as it is directed to circumstances where “a current Member … becomes unavailable for some reason (such as illness or leave) rather than a situation where a person ceases to be a Member” of the Commission. Ai Group submits that all that is necessary to bring AM2015/1 to a conclusion is for Deputy President Gooley and Commissioner Spencer now to issue their decisions, and their decisions taken together with the decision of former Vice President Watson will constitute the Full Bench’s decision.¹² In the alternative, even if s.622 does apply, it does not invalidate the decision of former Vice President Watson or prevent Deputy President Gooley and Commissioner Spencer from now issuing their decisions.¹³ AMIC and Master Plumbers Association of NSW support Ai Group’s submissions.¹⁴

[14] Ai Group further submits that in circumstances where a Member of the Full Bench resigns whilst a matter is being dealt with, it is open to the President either to appoint a new Member effectively to replace that Member under FW Act s.618, or alternatively to appoint a new Full Bench under s.618 and transfer the matter to the new Bench pursuant to a direction under s.582.¹⁵ Given that AM2015/2 “is still in its infancy”, Ai Group submits that the former course of action would be the appropriate one in relation to that matter. However, in relation to AM2015/1, whether the Full Bench should be reconstituted or a new Full Bench appointed for the purpose of dealing with any outstanding matters, should be determined after Deputy President Gooley and Commissioner Spencer have handed down their decisions.¹⁶

[15] Ai Group expresses doubt as to the correctness of ACCI’s submission that a newly appointed Member of the Full Bench would have a discretion to not hand down a decision in relation to the matter before the Full Bench.¹⁷

[16] The ACTU, Ai Group and AMIC do not consider the interactive approach to tribunal decision-making discussed in Morton to be applicable to the Commission, given the different statutory contexts.¹⁸ The other parties make no submissions on this point.

[17] There is some consensus between the parties that appeared at the hearing on 4 April 2017 as to what should be done in relation to matter AM2015/2–Family Friendly Work Arrangements. All of the parties seem of the view that I should direct another Member to form part of the Full Bench in order to further deal with that matter – although the ACTU and ACCI submit I am compelled to do so by FW Act s.622(3), while Ai Group submits that it is open and appropriate for me to do so in the circumstances although s.622 does not apply. I will determine the steps to be taken in relation to matter AM2015/2 in the context of the Statement that was issued on 18 April 2017.

[18] In relation to the present matter, AM2015/1, it seems that the parties that appeared at the hearing on 4 April 2017 share a view that if Deputy President Gooley and Commissioner Spencer are in a position to hand down their decision(s) in the matter in accordance with the FW Act, then their decision(s) together with the earlier decision of former Vice President Watson could comprise the decision in this matter. However, the parties differ as to what, if anything, must be done to enable them properly to hand down their decision(s) and, if it is necessary to reconstitute the Full Bench for that to occur, whether a new Member of the Bench would be required also to issue a decision in the matter.

[19] It seems that the ACTU and Ai Group (supported by AMIC and Master Plumbers Association of NSW) are of the view that the FW Act permits Deputy President Gooley and Commissioner Spencer now to hand down their decision(s) so as to complete the decision-making of the original Full Bench. In contrast, it seems that ACCI (supported by The Pharmacy Guild of Australia) is of the view that I must reconstitute the original Full Bench before Deputy President Gooley and Commissioner Spencer can properly hand down their decision(s). While ACCI is of the view that a new Member appointed to the Full Bench might exercise discretion not to issue his or her own decision (so that the decision of the reconstituted Full Bench comprises the decisions of the members of the original Full Bench), Ai Group considers that a new Member may be required to issue their own decision.

[20] The parties also differ as to the operation of FW Act s.624 in the present circumstances. It seems that ACCI and Ai Group are of the view that if Deputy President Gooley and Commissioner Spencer were now to hand down their decision(s) then, even if there is a deficiency in the constitution of the Full Bench, s.624 would ensure their decision(s) are not invalid.¹⁹ However, the ACTU suggests that reading s.624 harmoniously with the other provisions Division 4 of Part 5-1 of the FW Act and s.618 in particular, has the result that s.624 would not operate to validate a decision made by a Bench with less than three Members. The ACTU also suggests that if there is at present no Full Bench for the purposes of making a decision in matter AM2015/1 then that is a Bench that ‘has emerged’ rather than one that was ‘constituted’ for the purposes of s.624.²⁰

[21] In contrast to matter AM2015/2 (see paragraph [17] above), in relation to AM2015/1 there does not appear any course of action open that would accommodate the views of all of the parties that appeared at the hearing on 4 April 2017. While neither the ACTU nor Ai Group submit that the FW Act actually prohibits me appointing a new Member to the Full Bench for the purpose of delivering a decision in AM2015/1, it seems from their submissions that they would consider this at the least inappropriate.²¹ Further, even if it was accepted that Vice President Watson’s decision should comprise part of the decision of such a reconstituted Full Bench (which I consider open to argument), reconstitution could result in a different decision in the matter to that which would result from the course of action proposed by the ACTU and Ai Group.

[22] As I indicated at the hearing on 4 April 2017, my concern is to find a process or outcome that will give certainty to the parties to this proceeding and to persons affected by any variations to modern awards that might arise from it.²² The ACTU’s claim in AM2015/1 is for a new paid leave entitlement to be inserted into every modern award. I am particularly concerned, if this proceeding was to result in variations to modern awards, about the potential at some time in the future for enforcement of an award obligation to be subject to collateral attack on the basis that there was no Full Bench decision or the Full Bench was not properly constituted.

[23] Given the novelty of the issue, its potential practical impact and the differing views as to what the FW Act requires or permits in the circumstances, my provisional view is that I should seek certainty in the final disposition of matter AM2015/1 by referring questions of law to the Federal Court pursuant to s.608(1) of the FW Act. Section 608(1) confers a discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Court.

[24] A referral of a question of law to the Federal Court is to be in the form of a ‘special case’ in accordance with Part 38 of the Federal Court Rules 2011. A special case must state the facts briefly but specifically and attach all documents necessary to enable the Court to decide the questions raised by the special case.

[25] The Attachment to this Statement sets out on a provisional basis the statement of facts, questions of law and other materials proposed to be provided to the Federal Court.

[26] The parties that appeared at the hearing on 4 April 2017 and any other interested persons are requested to provide submissions on the provisional view that a referral should be made to the Federal Court and also on the contents of the Attachment by 4 pm on Wednesday 10 May 2017. In particular, the parties are asked either to confirm that they concur with the proposed statement of facts and that in the context of those facts the Court’s answers to the questions will dispose of the issue, or to propose alterations or additions to the statement of facts or the questions.

[27] Having considered the submissions, I will issue a decision as to whether a referral will be made to the Federal Court. If the decision is to make a referral, the special case will be settled having regard to the submissions and the requirements of the Court.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR592491>

Attachment A

PROPOSED REFERRAL OF QUESTIONS OF LAW TO THE FEDERAL COURT

4 yearly review of modern awards—Family & Domestic Violence Leave Clause
(AM2015/1)

Statement of Facts

1. The questions for the consideration of the Court relate to proceedings of the Fair Work Commission (FWC) as part of the 4 yearly review of modern awards conducted under s.156 of the Fair Work Act 2009 (Cth) (FW Act).

2. As part of the 4 yearly review of modern awards, in or around February 2015 the Australian Council of Trade Unions (ACTU) sought inclusion of a family and domestic violence paid leave clause in all modern awards (matter AM2015/1). Matter AM2015/1 must be heard and determined by a Full Bench of the FWC.

3. In or around October 2015 the President of the FWC constituted a Full Bench to hear and determine matter AM2015/1. The Full Bench comprised Vice President Watson, Deputy President Gooley and Commissioner Spencer.

4. At the time the Full Bench was constituted, Vice President Watson was a Deputy President of the FWC who retained the designation of Vice President by virtue of his former office as a Vice President of the Australian Industrial Relations Commission. Vice President Watson was the most senior Member of the Full Bench under s.619 of the FW Act.

5. Written submissions and other materials were filed in matter AM2015/1 between June and October 2016, evidence was heard on 14-18 November 2016 and final oral submissions were heard on 1-2 December 2016. The hearing of the matter by the Full Bench concluded on 2 December 2016 and the Full Bench reserved its decision.

6. On or around 20 January 2017, Vice President Watson wrote to the Governor-General tendering his resignation as a Member of the FWC, with effect from the close of business on 28 February 2017.

7. On 20 February 2017 Vice President Watson provided the other Members of the Full Bench with a draft of his decision in matter AM2015/1 which did not include his final conclusion.

8. On 27 February 2017 Vice President Watson caused his decision and reasons in matter AM2015/1 to be published and sent to the parties (Attachment 1). Deputy President Gooley and Commissioner Spencer were not able to issue their decision or decisions at that time and to date they have not issued their decision or decisions in the matter.

9. At close of business on 28 February 2017 Vice President Watson ceased to be a Member of the FWC.

Questions for the Consideration of the Court

10. The questions for the consideration of the Court are:

1) Are Deputy President Gooley and Commissioner Spencer presently permitted by the FW Act to issue their decision or decisions in matter AM2015/1?

2) If the answer to question 1 is yes: for the purposes of the FW Act will their decision or decisions, taken together with the decision of former Vice President Watson, constitute a Full Bench decision in matter AM2015/1?

3) If the answer to question 1 is yes and the answer to question 2 is no: for the purposes of the FW Act will their decision or decisions without the decision of former Vice President Watson, constitute a Full Bench decision in matter AM2015/1?

4) If the answer to question 1 or questions 2 and 3 is no: does the FW Act require or permit the President of the FWC to direct another FWC Member to form part of a Full Bench with Deputy President Gooley and Commissioner Spencer in order to obtain a Full Bench decision in matter AM2015/1?

5) If the answer to question 4 is yes: will the FW Act require the new member of the Full Bench to issue a decision in the matter?

6) If the answer to question 4 is yes: whose decisions will constitute the Full Bench decision in the matter, and, in particular, will the decision of former Vice President Watson comprise part of the decision in the matter?

7) If the answer to question 1 or questions 2 and 3 is no, and the answer to question 4 is also no: does the FW Act require or permit the President of the FWC to constitute a new Full Bench in order to obtain a Full Bench decision in matter AM2015/1?

Subsequent Proceedings

11. The following paragraphs outline proceedings in Matter AM2015/1 subsequent to paragraph 9 above.

12. On 23 March 2017 Deputy President Gooley and Commissioner Spencer sent a memorandum to the President of the FWC seeking advice as to how a decision in matter AM2015/1 might now be finalised.

13. On 27 March 2017 the President of the FWC issued a Statement attaching Deputy President Gooley’s and Commissioner Spencer’s memorandum and notifying a hearing on 4 April 2017 in relation to issues it raises (Attachment 2).

14. On 3 and 4 April 2017, the ACTU, Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (Ai Group) filed written submissions in response to the Statement of 27 March 2017 (Attachments 3-5).

15. At the hearing on 4 April 2017, the ACTU, ACCI, Ai Group, Australian Meat Industry Council (AMIC), Master Plumbers Association of NSW and The Pharmacy Guild of Australia made oral submissions (transcript at Attachment 6).

16. During the hearing on 4 April 2017, the President of the FWC invited the parties to file further written submissions commenting on the decision in Morton v The Transport Appeal Board & Anor No. 1 [2007] NSWSC 1454 (Attachment 7).

17. At the conclusion of the hearing on 4 April 2017 the President informed the parties that he was contemplating referring to the Federal Court of Australia questions of law as to how a decision in matter AM2015/1 can now be concluded.

18. On 12 and 13 April 2017, the ACTU, Ai Group and AMIC filed further written submissions (Attachments 8-10).

19. On 18 April 2017 the President of the FWC issued a Statement setting out the other matters that were before Full Benches in which Vice President Watson was a presiding Member and which had not been completed prior to his resignation (Attachment 11).

20. On 28 April 2017, the President of the FWC issued a Statement expressing a provisional view that he should refer questions of law to the Federal Court pursuant to s.608 of the FW Act and setting out on a provisional basis the statement of facts, questions of law and other material proposed to be provided to the Court for that purpose. This Statement also sought submissions on the provisional view and on the proposed statement of facts and questions of law (Attachment 12).

Attached Documents

The attachments to this document are set out in the following table.

1 [2017] FWC 1733

2 Transcript 4 April 2017

3 [2007] NSWSC 1454

4 [2017] FWC 2189

5 Transcript 4 April 2017, PN284

6 Further written submissions of the ACTU dated 12 April 2017, paragraph 4

7 Transcript 4 April 2017, PN56; further written submissions of ACTU dated 12 April 2017, paragraph 33

8 Written submissions of ACCI dated 3 April 2017, paragraph 4.18

9 Ibid, paragraphs 4.16-5.8

10 Transcript 4 April 2017, PN239

11 Ibid, PN60

12 Written submissions of Ai Group dated 3 April 2017, paragraphs 42, 34, 11 and 28

13 Ibid, paragraphs 47-57

14 Transcript 4 April 2017, PN231 and PN235

15 Written submissions of Ai Group dated 13 April 2017, paragraphs 6-7 and 16

16 Ibid, paragraphs 9, 18 and 25

17 Ibid, paragraphs 20-21

18 Further written submissions of ACTU dated 12 April 2017, paragraphs 15-27; written submissions of Ai Group dated 13 April 2017, paragraphs 27-29; written submission of AMIC dated 10 April 2017, paragraph 4

19 Written submissions of ACCI dated 3 April 2017, paragraph 4.21; written submissions of Ai Group dated 3 April 2017, paragraphs 29-30 and transcript 4 April 2017, PN173

20 Transcript 4 April 2017, PN66-PN70

21 Written submissions of Ai Group dated 13 April 2017, paragraph 20

22 Transcript 4 April 2017, PN283