[2020] FWCFB 1804
FAIR WORK COMMISSION

STATEMENT


Fair Work Act 2009
s.285—Annual wage review

Annual Wage Review 2019–20
(C2020/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
MR FERGUSON
MR WOODEN
MS LABINE-ROMAIN

MELBOURNE, 6 APRIL 2020

TIMETABLE VARIATION

1. Background

[1] A Statement published on 23 March 2020 varied the timetable for the Annual Wage Review 2019–20 (2019–20 Review) as follows:

[2] It was also noted that the post-Budget consultations initially scheduled for 18 and 19 May 2020 would not proceed.

[3] In taking into account the consequences of the COVID-19 pandemic, the March statement noted that further changes to the timetable would be necessary to provide parties with an opportunity to comment on a rapidly changing environment and relevant data as it emerges. The statement also outlined the proposal by Ai Group to defer any decision until after the release of the Australian Bureau of Statistics’ (ABS) National Accounts for the March Quarter 2020 on 3 June 2020. 2

[4] To settle the timetable as soon as practicable, parties were invited to file a short submission setting out their response to Ai Group’s proposal and other views that they had in relation to the timetable, by 4.00pm Wednesday 1 April 2020.

2. Submissions

[5] Submissions were received from:

•  the Australian Government;

•  the Australian Council of Trade Unions (ACTU);

•  Australian Industry Group (Ai Group);

•  Australian Chamber of Commerce and Industry (ACCI); and

•  Master Grocers Australia (MGA)

[6] Consistent with its proposal, Ai Group supported the postponement for the lodgement of reply submissions and submitted that one day of final consultations be scheduled to allow parties to make short oral submissions and address any further questions from the Expert Panel. It is proposed that this take place in June, shortly after the lodgement of the proposed submissions of 8 June 2020. 3

[7] The Australian Government submitted that the Expert Panel ‘should utilise any available mechanisms that enhance its ability to consider all economic data and other information relevant to the impact of the coronavirus pandemic when making its decision.’ 4

[8] ACCI did not oppose the proposed timetable put forth by Ai Group, and also submitted that final consultations should still proceed. 5

[9] MGA submitted that ‘any decision relating to the Annual Wage Review decision be delayed until after the March Quarter 2020 National Accounts have been released, with an opportunity to file further submissions by 8 June 2020.’ 6

[10] The ACTU supported Ai Group’s proposal that the Panel take into account the March Quarter National Accounts Data and accepted that it is necessary for the Panel to inform ‘itself of the best data and analysis available about the impacts of the COVID-19 pandemic on employees, employers and the economy.’ 7

3. Consideration

[11] There is a broad consensus that the Panel should take into account the March Quarter National Accounts released on 3 June 2020 and that interested parties be afforded a reasonable opportunity to make submissions about how the March Quarter National Accounts should be taken into account. It is also generally agreed that a day of final consultations should be scheduled to allow parties to make short oral submissions and address any further questions from the Panel.

[12] There is no doubt that the Commission is bound to ‘act judicially’, which includes an obligation to afford parties procedural fairness. Further, s.289 provides, relevantly, that in relation to each Annual Wage Review the Panel must ensure that ‘all persons and bodies have a reasonable opportunity to make written submissions’ and to make comments on submissions filed.

[13] The application and content of the doctrine of procedural fairness is determined by the context, as is what constitutes a ‘reasonable opportunity’ in s.289. As Mason J observed in Kioa v West:

‘What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision - maker is acting.’ 8

[14] A key contextual consideration in relation to the present proceedings is the statutory constraints regarding the conduct of Annual Wage Reviews. In particular, section 285(1) provides that the expert Panel ‘must conduct and complete an annual wage review in each financial year’ (emphasis added). It follows that 30 June 2020 provides the outer limit for the completion of the 2019–20 Review.

[15] It is apparent from the submissions filed that the statutory time constraints are well understood by the parties. As the Australian Government put it ‘the Government acknowledges the challenges presented to the Fair Work Commission by the statutory requirement that the Annual Wage Review 2019-20 be completed by 30 June 2020.’ 9 The ACTU submission also gave detailed consideration to the fixed outer limits prescribed by the legislation.10

[16] We also note that Ai Group 11 and the ACTU12 propose that the Panel’s decision be handed down in mid-June and that ACCI submits that ‘it remains important … that there be a due period of notice prior to the commencement of any increase.’13

[17] Taking into account the submissions and the matters identified above we have decided to revise the timetable to:

•  extend the date for the filing of reply submissions (from 23 April 2020 to 4 May 2020);

•  provide an opportunity to file supplementary submissions by 29 May 2020;

•  take into account the March Quarter National Accounts Data;

•  provide parties with an opportunity to make submissions (and comment on submissions filed) in relation to the March Quarter National Accounts Data; and

•  provide interested parties with an opportunity to make short oral submissions and to respond to Panel questions (at 2pm on 10 June 2020).

[18] The revised timetable for the 2019–20 Review is as follows:

[19] We note Ai Group’s submission that there are ‘exceptional circumstances’ within the meaning of ss 286(2) and 287(4) which justify an operative date of 15 July 2020 (i.e. delaying the usual 1 July 2020 operative date by two weeks). We also note the ACTU’s opposition to the proposal. We do not propose to determine this question at this early stage in the proceedings. We will deal with the operative date question in our decision dealing with the 2019–20 Review taking into account all of the submissions, including the oral submissions made at the consultations on 10 June 2020.

[20] For completeness we also note that the ABS are publishing additional data measuring the impact of COVID-19 on individuals and businesses that will be pertinent to this Review. The Statistical report presents the data released on Business Impacts of COVID-19 and will be updated for future releases of this survey and other products used to measure the impact of COVID-19 as they are announced. Attached to this Statement is a calendar that outlines key dates and data releases from April to around mid-June 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718063>

ATTACHMENT: Annual Wage Review 2019–20: key dates and data releases—6 April to 12 June 2020

Data releases Submissions and Questions on notice Public holidays

NAB Business confidence and conditions provide monthly.

[2020] FWC 1544

STATEMENT

fwc_logo
Fair Work Act 2009 s.285—Annual wage review

Annual Wage Review 2019–20
(C2020/1)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 MARCH 2020

TIMETABLE VARIATION

[21] The current timetable for the Annual Wage Review 2019–20 (2019–20 Review) is set out below:

Date

Event

27 MARCH 2020

Closing date for lodging submissions

9 April 2020

Closing date for lodging reply submissions and any submissions relating to data published after 13 March 2020

10 April–13 April 2020

Easter Break

5 May 2020

Closing date for expressions of interest in taking part in the final consultations

15 May 2020*

Closing date for lodging supplementary submissions limited to matters arising from the Budget

19 May–20 May 2020

Final consultations in Melbourne (19 May 2020) and Sydney (20 May 2020)

*This date has been set on the assumption that the Budget for 2020–21 will be handed down on the second Tuesday of May, 12 May 2020, consistent with usual practice.

[22] As noted above, the timetable has been set on the assumption that the 2020–21 Commonwealth Budget will be handing down in May. That is no longer the case.

[23] Further, responding to the consequences of the COVID-19 pandemic is drawing heavily on the resources of each party. In these circumstances, the 2019–20 Review will be varied as follows:

•  reply submissions from 9 April 2020 to 23 April 2020;

•  final consultations scheduled for May will not proceed; and

•  Questions on notice for parties will be published by 3 April 2020.

[24] Further changes to the timetable will be necessary to provide parties with an opportunity to comment on a rapidly changing environment and relevant economic data as it emerges.

[25] We note the submission from the Australian Industry Group (Ai Group) that ‘there is obvious merit in the Commission delaying the Annual Wage Review 2019–20 Decision until the Q1 2020 National Accounts statistics have been released by the ABS on 3 June and properly considered.’ 14 Ai Group have proposed the following:

[26] The Australian Retailers Association and the South Australian Wine Industry Association Incorporated also recommend deferring any decision until after the release of the March Quarter 2020 National Accounts. 16

[27] In order to provide certainty to the parties, the Expert Panel wishes to settle the arrangements related to the timetable as soon as practicable. To that end, parties are asked to file a short submission setting out their response to the Ai Group proposal and other views that they have in relation to the timetable for the 2019–20 Review.

[28] Short submissions in relation to the timetable are to be filed electronically at awr@fwc.gov.au by 4pm Wednesday 1 April 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717720>

 1   The Commonwealth was granted an extension to file their submission by X

 2   [2020] FWC 1544 at [4]–[6].

 3   Ai Group, 1 April 2020 at pp. 2–3.

 4   Australian Government submission, 1 April 2020 at para. 3.

 5   ACCI submission, 1 April 2020 at pp. 1–2.

 6   Ibid.

 7   ACTU submission, 1 April 2020 at paras 5–6.

 8   (1985) 159 CLR 550 at [32]; see [2015] FWCFB 210.

 9   Australian Government Submission, at [1]

 10   ACTU submission at [7]

 11   Ai Group submission, page 32

 12   ACTU submission at [10] and [16], it submits that the decision be issued on or before 9 June 2020.

 13   ACCI submission at page 2

 14   Ai Group submission, 16 March 2020 at p. 3.

 15   Ai Group submission, 16 March 2020 at pp. 3–4.

 16   ARA submission, 20 March 2020 at p. 4; SAWIA submission, 20 March 2020 at p. 7.