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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Family and domestic violence leave clause










1.00 PM, TUESDAY, 4 APRIL 2017


JUSTICE ROSS:  Please be seated.  May I have the appearances please.  Firstly in Melbourne.


MS K BURKE:  Ms Burke for the ACTU.


JUSTICE ROSS:  Thanks, Ms Burke.


MR B FERGUSON:  Commissioner pleases, Ferguson, initial B, for the Australian Industry Group.


MR N WARD:  Your Honour, I continue my appearance for the Australian Chamber of Commerce & Industry and I have with me today my instructing officer Mr Barklamb.


JUSTICE ROSS:  Thank you.  In Sydney.


MR G JOHNSON:  Yes, if the Commission please, Johnson is my name, initial G, for the Australian Meat Industry Council.


JUSTICE ROSS:  Thank you.


MS O VALAIRE:  If Commission pleases, Valaire, initial O, for Master Plumbers NSW.


JUSTICE ROSS:  Thank you.  In Canberra.


MR S HARRIS:  Yes, your Honour, Harris, S, for the Pharmacy Guild of Australia.


JUSTICE ROSS:  Thank you, Mr Harris.  So we've received written submissions from ACCI, Ai Group and the ACTU. Sit down for a moment, Ms Burke.  There is also an authority which unfortunately I'm not able to assist those who are interstate but I wasn't aware there'd be interstate appearances.  We'll just give you that material now.  It's just to make sure each of you have got a copy of the other's submissions.  The authority is a judgment of I think Berman AJ of the NSW Supreme Court.  I'm not suggesting that it's directly on point but there are some observations at paragraphs 41 to 48 that may relate to some of the submissions that you've advanced.  Obviously it's a different statutory framework.


Have you had a discussion about the order?  I've read the submissions so you don't need to do that for me.  Ms Burke, yes.


MS BURKE:  Thank you, your Honour.  I've looked at the submissions of the AiG and the Australian Chamber.  It seems that might be useful is to point out what we all agree on and then the differences that will assist.  The ACTU's position is that Watson VP is unavailable for the very specific and confined purpose of issuing a decision, and therefore section 622 is not engaged.  It seems in my reading that the submissions of my friends are similar in the result or there are some differences between us about the correct interpretation of the provisions.


JUSTICE ROSS:  I'm not sure they're similar in the result.  Ai Group's quite different.


MS BURKE:  Well they're similar in the sense that we all agree that Watson VP's decision should stand and that Gooley DP and Spencer C should be able to publish their decisions.


JUSTICE ROSS:  Yes, but it's really the interim step.  Ai Group proposes that they can't publish their decisions without the reconstitution of the Bench and the addition of a further member.


MS BURKE:  Yes, I think that's actually the submission of the Australian Chamber.


JUSTICE ROSS:  I'm sorry, yes, you're quite right.  It's the submission of ACCI, that's right.


MS BURKE:  Yes, that difference is certainly there and I'll address that.




MS BURKE:  If I can just turn - I'll address that first.  We agree with the conclusion of the Australian Chamber that your Honour is not required to appoint a replacement member who will then issue a replacement decision effectively, but we do take - there is a point of difference between us in respect of that submission that's made.  It seems - - -


JUSTICE ROSS:  Am I right in that the Chamber is submitting that I have to reconstitute and add a member but the additional member need not make a decision if the remaining two members, Gooley DP and Spencer C make a decision then that decision together with the former Vice President's decision would constitute the decision of a Full Bench.


MS BURKE:  That's my understanding of their submission.


JUSTICE ROSS:  That's fine.  We'll find out.


MS BURKE:  Really the difference between us is one of timing.  The ACTU's position is that the process of the Full Bench issuing a decision is one that has begun but is not yet complete.  At the time it was begun when the Vice President published his decision on 27 February, the Full Bench was properly constituted and section 622(1) directs the attention not just to unavailability at large but unavailability to continue to deal with the matter.  So it does direct the purpose for which the member is unavailable.  I just direct you to that.


JUSTICE ROSS:  So there's a turn on the question of the meaning of unavailable to continue dealing with the matter, before the matter is completely dealt with.  So it's whether - in essence, whether the matter is completely dealt with as far as the former Vice President is concerned by the making of his decision, or whether the matter is completely dealt with when the Full Bench issues its decision.


MS BURKE:  Yes, and in my submission it's the former because the words of - - -


JUSTICE ROSS:  No, I understand your submission but that's the nub of the issue.


MS BURKE:  But the words of 622 are directed to the Commission members unavailability to continue performing a task.  It doesn't say if a member of a Full Bench is unavailable such at the Full Bench cannot continue to deal with the matter, then your Honour must reconstitute.  It's directed in this quite narrow way to the performance of a step or a function by the individual member.  Our submissions are addressed really to that point.


If the Australian Chamber's interpretation is to be preferred then it's arguable and we would urge your Honour against this, it's arguable that at the moment the Vice President's resignation was effective the Full Bench was improperly constituted and a new member should have been appointed.  Now there's a question about whether in continuing to draft their decisions perhaps behind chambers - - -


JUSTICE ROSS:  Well we don't know any of that so I'm not proposing to speculate on what they're doing.


MS BURKE:  No, but it is at least open that by taking any step at all, the Deputy President and the Commissioner were illegitimately on the Australian Chamber's interpretation continuing to deal with the matter because there was no Full Bench.


JUSTICE ROSS:  Yes, but you don't know the facts so there's no point in speculating about what that might be.


MS BURKE:  That's right.  However, that submission - I've looked very, very briefly at the decision that was provided by your Honour's Associate this afternoon and I'm afraid I'm not in a position to say anything particularly helpful about it.


JUSTICE ROSS:  No, that's fine.  I mean look, you can take that on notice and provide me with anything you wish to say about that.  I don't think this is an area where I'll be sprinting to a conclusion.  It is the only one that I've been able to find that - other than the financial services case, which isn't really of much assistance to the matter I've currently got.


MS BURKE:  No, it's not.  I mean there are plenty of cases that deal with what happens when a Full Court or a Court of Appeal loses a member for - of that tribunal for whatever reason, but they are all governed by their - by the statutes which is what the ACTU submits should happen here and is really only what can happen here.


JUSTICE ROSS:  Sure.  I think everyone accepts that.  It's what the issue though is, what does section 622 mean and how is it applied in the circumstances of this case?






MS BURKE:  The other differences which I'll just briefly address.  At - and I'm looking now at AiG's submission at paragraph 11, where it's stated that:


All that is necessary to bring the matter to a conclusion is for the remaining members to now issue their decisions.


The ACTU submits that that's not the case, that there may be many other things that are necessary in order to bring the matter to its conclusion.


JUSTICE ROSS:  Well what if there are further matters that require award variation.




JUSTICE ROSS:  Well who does that?


MS BURKE:  You would need to appoint a new member to deal with that.  So the scenario that the ACTU contemplates is that for the purpose and only for the purpose of publishing their decisions, Gooley DP and Spencer C together with Watson VP are a properly constituted Full Bench.  But the minute those decisions are published and any further step is required including, for example, making an order dismissing the application or calling the matter on for further hearing or directions there is Watson VP is unavailable to continue dealing with the matter and section 622 is triggered and the Full Bench needs to be reconstituted.  So it's a very confined point.


JUSTICE ROSS:  As you know there were two matters that were before this Full Bench.  The one that's the subject of the Vice President's decision that was the family and domestic violence leave claim.  There's a separate matter which has been characterised as family friendly work arrangements.  That's matter AM2015/2.




JUSTICE ROSS:  The other matter is AM2015/1.  Now let's see if we can at least agree on what happens with the second matter.  As I understand it, the family friendly work arrangements claim, directions were issued, I think by consent, on 22 December last year and various submissions are due over the course of this year with hearings scheduled for 10 October.


Now it doesn't seem like anything's happened in relation to that matter other than the procedural steps.  Do I take it there's no issue that I have to reconstitute that Bench?


MS BURKE:  Sir, can I just briefly get some instructions?




MS BURKE:  Just two matters in the chronology just described by your Honour.  The first is that the orders on 21 December, I think, were not - 22nd, were not made by consent but after a telephone mention.  The ACTU did seek quite different orders.


JUSTICE ROSS:  Well I suppose that's a separate question about whether you want to seek to amend those. My question is do I need to reconstitute that Bench?


MS BURKE:  You do, and something has happened in-between now and then which is that the ACTU has sought leave to amend the terms of the variations sought, and that is currently "before the Full Bench".


JUSTICE ROSS:  Well, yes, there isn't a Full Bench - - -


MS BURKE:  So for those purposes then - no, well for those purposes absolutely and for all other purposes, yes.


JUSTICE ROSS:  Does anyone else disagree that that Bench has to be reconstituted?


MR WARD:  It has to be.


JUSTICE ROSS:  I'm not sure that's consistent with Ai Group's submission but I'll hear you about that later.  Does anyone else think that that Bench doesn't need to be reconstituted?  No?  Right.


MS BURKE:  I was hoping we would bring a little bit more than that, your Honour, but I will remain optimistic.


JUSTICE ROSS:  It does have a consequence for other Benches.  I might mention three other matters which the Vice President was a member on which are part heard and on the Ai Group's submission I'm not supposed to do anything about any of those.  One of those is - and these will be the subject of a separate statement so everyone who's got an interest can be informed but one of them is AM2014/190.  That's the transitional provision, district allowance and accident pay matter.  As I'm advised there's a substantive claim by the STA pending a decision and there's something to do with black coal and accident pay pending a decision.  So that will need to be addressed as well.  There is apparently an application AM2013/30 to vary the Supported Employment Award.  That matter's not been concluded either.


There are various state reference public sector award modernisation matters, they are AM2013/34/33/36/37/43.  The status of some of the awards in that group is unclear.  It may not be this matter alone that needs to be examined.  I wasn't aware of these others until we've done an audit since the Vice President's resignation, and as I say I think the various course is to - I'll do a short statement alerting the parties in those matters and hear what they want to say.  I'll convene a hearing for that purpose.  For two reasons; one, to find out exactly where the matters are up to, whether any further steps are needed.  Secondly, if they're to be reconstituted is everyone content for the Bench to rely on the material that's already in rather than go through the process of a rehearing?  I will take that course over the course of the next few weeks, but I do want to put Mr Ferguson on notice that his submission will have some significant implications, if it was accepted, for the conduct of other matters that are currently before the Tribunal.


Was there anything else you wanted to add, Ms Burke?


MS BURKE:  Yes, just in relation to the operation of section 624 of the Act, that is the section which provides that a decision of the Commission is not invalid merely because it was made by a Full Bench or an expert panel constituted otherwise than as provided by this division.  That section is relied on by my friends essentially to say that if Gooley DP and Spencer C published their decision, it won't be invalid because it's only a Bench of two.


There is a point of difference that I take with that submission and I just want to address that.  Section 624, on my reading, operates to protect Full Benches that are constituted other than provided for by the division.  It should be read harmoniously with the other provisions in that division and, in particular, section 618, which defines a Full Bench as having at least three members.




MS BURKE:  On my reading, 624 operates, for example, if there's a Bench of five or if one of the Members of the Full Bench is not a Presidential Member, and that seems to have been contemplated by the Financial Services decision at paragraphs 37 to 39.  They didn't address the point that I'm making, but the reason they declined to give an injunction in that case was in response to a submission by the applicant that it was necessary in case 624 was engaged.


Because 618 provides that a Full Bench can't be constituted with less than three Members, 624 would not operate to validate a decision made by, for example, one Member or two Members and if, at present, there is no Full Bench for the purposes of making a decision in the Family and Domestic Violence matter, that is not a Full Bench that has been constituted, that is a Full Bench that has emerged, and so for those reasons 624 doesn't perhaps have the protective function that initially it certainly seemed to me that it might have.


JUSTICE ROSS:  It is also constrained by the language.  It is not invalid "merely because".




JUSTICE ROSS:  That might have some work to do as well.  As you say, it has not really been the subject of any focused judicial consideration.  It is mentioned in passing in the Financial Services matter but it is not engaged there.


MS BURKE:  It wasn't construed by the Full Court in that case.


JUSTICE ROSS:  No.  All right.


MS BURKE:  Other than the matters addressed in the ACTU submissions, which are really that very confined point that the Vice President is and was available for the purposes of making a decision and should the Deputy President and the Commissioner want to publish their decisions and only do that task, then there is a properly constituted Full Bench, but if, for example, their decisions contained draft declarations at the end, that would be straying into taking a step for which the Vice President is unavailable.


JUSTICE ROSS:  So if it got to the point where after the publication of their decision, there were any further steps, any further steps would require the reconstitution of the Full Bench?


MS BURKE:  Yes, and the ACTU's submission is that that could happen almost instantaneously after the publication of the decision, so that any party who wishes to raise an issue or bring the matter on for hearing or take any step is able to do so to a Full Bench.


JUSTICE ROSS:  All right.


MS BURKE:  Thank you.


JUSTICE ROSS:  Thank you, Ms Burke.  Mr Ferguson?


MR FERGUSON:  Thank you, your Honour.


JUSTICE ROSS:  I have had the opportunity to read your submissions, so there is no need for you to take me through them.


MR FERGUSON:  I won't take you through the detail.  As you will appreciate, my organisation has been careful in the way they've prepared those submissions.  The other point I would make is that we very much framed them by reference to the specific questions that have fallen from the Bench and, in that regard, it is perhaps best if I firstly start with question 1B, to some degree, and that is the matter of whether or not the decision of Gooley DP and Spencer C - - -


MS VALAIRE:  Your Honour, I can't hear the people in Melbourne.


MR FERGUSON:  Sorry, I will move the microphone.  That is the issue which considers whether the decision of Gooley DP and Spencer C taken together with the decision of former Watson DP constitutes the Full Bench decision now.  It appears to be that there is a level of common ground amongst the parties at least.


JUSTICE ROSS:  People keep saying that, but I am struggling to see how that is right because the Chamber is not saying that.  They are making it clear that you need to reconstitute and then the reconstituted Bench, together with the Vice President's decision, form the Full Bench decision, and the difference is I am obliged to act under 622, I don't have an alternative, if I formed the view that the circumstances pertain, and what you differ about between yourself and ACCI is whether or not 622 is engaged.  They say it is and you say it isn't.


MR FERGUSON:  To a degree.  They say, as I understand it, and they will correct me if I am wrong, that if 622 is engaged, another Member must be appointed.




MR FERGUSON:  That then enables a decision to be made or handed down by the first two remaining Members, if I can put it that way.


JUSTICE ROSS:  And the third, if they wish.


MR FERGUSON:  If they wish, but they don't seem to think that a person would - - -


JUSTICE ROSS:  Sure, but it is still saying that you have to exercise the 622 power and you are saying the 622 power doesn't apply.


MR FERGUSON:  Yes, that's right.


JUSTICE ROSS:  I don't think there is much point in glossing over the difference.


MR FERGUSON:  No, no, no, I am going to come to that, but the point is they seem to assert that the other three Members, including Watson VP, could constitute the decision validly of the Full Bench.


JUSTICE ROSS:  I have taken that from their submission, yes.


MR FERGUSON:  That is the degree of common ground amongst the parties in the sense that we all think that and we set out why we say it is in accordance with the Act and we will take you through it.




MR FERGUSON:  We say the role of 624 in protecting that, and I won't take that further.  I think where we are apart is on the role of 622 and the specific question here - - -


JUSTICE ROSS:  The regrettable bit for me is that's the bit that requires me to do something.


MR FERGUSON:  I understand that.  I am endeavouring to assist in that regard.


JUSTICE ROSS:  It's a pity you couldn't agree on that and disagree on everything else, then I'd be right, but as I understand it, the heart of your submission is that 622(1)(b) doesn't apply in the context of a Member's retirement?


MR FERGUSON:  Yes, that's the first limb.


JUSTICE ROSS:  How does that work, that it applies if a Member is ill but not if they die?  Is that how it works?


MR FERGUSON:  Yes, if they retain their status as a Member of the Commission.


JUSTICE ROSS:  If they are dead?


MR FERGUSON:  If they are dead, I don't think they are a Member of the Commission.


JUSTICE ROSS:  If they are ill, you reconstitute?




JUSTICE ROSS:  What do you do if they die?


MR FERGUSON:  This provision doesn't compel the reconstitution.  It may be that a new Bench needs to - - -


JUSTICE ROSS:  I think it would be fair to say they had become unavailable to continue dealing with the matter if they were dead, wouldn't you?


MR FERGUSON:  I think the proposition here is that the language of the section as a whole talks about the "unavailability" of an FWC Member, and we give specific references to the wording that suggests that proposition.  I accept that under a previous iteration of a similar statute, the provision was different and there was a definition specifically of when a Member becomes unavailable in the relevant sense.  There the legislature turned its mind to it and established the fact that a Member becomes unavailable in those circumstances for the purpose of the provision, but here we say the surer guide is the language of this provision, which the legislature has elected to change and put in a very different form.


We say what this is dealing with isn't necessarily every circumstance when someone may be ineligible to deal with a matter, it is dealing with an unavailability.  That may be because they are, as we have said, preoccupied with some other purpose - illness or what not; it may be a myriad of other reasons - but it is not a circumstance when a person ceases to be a Member.  This is only our first position and there is a position in the alternative and I don't wish to take it too much further.




MR FERGUSON:  Obviously the language of the Act is what my organisation is pointing to.


JUSTICE ROSS:  And that will determine the question.


MR FERGUSON:  That will determine the question, and we say that is the surer guide.  In any event, we do advance a position in the alternative and that is in response to the specific question which fell from the Bench and is raised by the other Members as to whether 622 acts as some sort of impediment on them issuing their decision.  We say it does not.


JUSTICE ROSS:  I follow that.  My difficulty, I suppose, is that 622(3) requires me to do something.   You see, it requires me to form a view about whether, in the circumstances here, a Member has become unavailable to continue dealing with the matter before it is completely dealt with.  I follow what you say about - it is not a discretion.  If it was a discretion, it might be a different question entirely, but the subsection says that I must direct another Member to form part of the Full Bench if I am satisfied as to the circumstances in 622(1)(b).


MR FERGUSON:  I will deal with that.  That is, in some ways, a separate issue to whether the section is an impediment to the remaining two Members handing down their decision.


JUSTICE ROSS:  No, no, but I am faced with the factual circumstances I have got, which gives rise to a question as to whether or not a Member had become unavailable to continue dealing with the matter before the matter is completely dealt with.




JUSTICE ROSS:  That is the issue I am putting to you.  You have got a view about that, others have a different view, but if I form that view, irrespective of what the other two Members can do, I have got a statutory direction to do something.


MR FERGUSON:  We accept the force of the word "must" in the sense that if this section applies - - -


JUSTICE ROSS:  It is not one of those instances where "must" may mean "may".






MR FERGUSON:  We accept that if the section applied, and our primary position is that it does not, if it does, the first thing that flows is that is not an impediment to the others handing down their decisions.  There is a timing issue here, though.


MS VALAIRE:  Excuse me, I don't have any sound.


MR FERGUSON:  Sorry, I will speak up.


MS VALAIRE:  No, it's something with the connection.


JUSTICE ROSS:  Have you lost the connection?


MR JOHNSON:  We did for a while, your Honour.


JUSTICE ROSS:  Have you got it back now?


MR JOHNSON:  We have.


JUSTICE ROSS:  Perhaps if you can let us know if it drops out.


MR FERGUSON:  Sorry, I don't wish to repeat myself, but there is a timing issue here in the sense that if the Members hand down their decision, what any newly appointed Member is required to do may change in one sense.


JUSTICE ROSS:  I am sorry, can you just - - -


MR FERGUSON:  I can certainly develop that.  It came out of this, and this wasn't trying to be evasive.


JUSTICE ROSS:  No, no, I missed what you had put.


MR FERGUSON:  If the remaining Members of the Full Bench  hand down their decisions but a position is accepted that nonetheless the matter is not concluded or is not completely dealt with because they don't, for example - - -


JUSTICE ROSS:  This is Ms Burke's point.




JUSTICE ROSS:  If there are further orders or iterations or steps that need to be taken, yes.


MR FERGUSON:  That may colour what that remaining Member has to do.


JUSTICE ROSS:  What remaining Member?


MR FERGUSON:  Sorry, not remaining Member - I apologise - the newly appointed Member is required to do.


JUSTICE ROSS:  What newly appointed member?


MR FERGUSON:  If you reconstitute it pursuant to 622(3) after the Full Bench decision is handed down and - - -


JUSTICE ROSS:  If I accept ACCI's submission and add at least one additional Member to the Bench and then the Bench hands down its decision at least with two of them, the residual members, I'll refer to them, and perhaps the third, then presumably it is that reconstituted three-Member Bench that continues to deal with any residual matters.


MR FERGUSON:  Any remaining issues.  So it's an issue of timing, in a sense, and that is why we are making the point that the Members should form the view that they are not barred from handing down their decisions by section 622, the wording of the provision simply does not have that effect expressly, and when you understand the purpose of the provisions, it should not be interpreted in that manner.  The purpose is to enable a Full Bench to conclude a matter in circumstances where it wouldn't be able to do so because of the unavailability of a Member as constituted under 618.  So, it is a timing issue.


We understand the force of what you are saying in relation to the obligation of 622(3), but that is, in a sense, a different matter than what was raised in the questions from the Full Bench.




MR FERGUSON:  It is a timing issue.  Of course, it doesn't expressly prescribe a time.


JUSTICE ROSS:  I don't think they will be launching off until I have made a decision about what I do under 622, if that is your apprehension.  They have raised the issue with me and - - -


MR FERGUSON:  Not so much an apprehension as much as if they formed the view that they could hand - - -


JUSTICE ROSS:  That would be a matter for them really.


MR FERGUSON:  I understand, but they have raised the question and if the answer to the question is there is no impediment, they may well be in a position to hand down their decision and, if they were - - -


JUSTICE ROSS:  I won't be interfering with that step at all.  I have got enough trouble working out what I'm supposed to be doing under section 622.  Where is that noise coming from?  In Sydney, can you keep your voice down, we seem to be picking up from somewhere interstate.  It's not the parties?


SPEAKER:  We will close the door, your Honour, it's from the courtroom next door.


JUSTICE ROSS:  Thank you.


MR FERGUSON:  I raise it in part because if the decision is that they, too, decide that the claim should be rejected, then there is nothing more to be dealt with in this matter.


JUSTICE ROSS:  Quite, yes.


MR FERGUSON:  And to the extent that you have any ongoing obligation, that must not arise or evaporate.


JUSTICE ROSS:  Presumably, once their decision is rendered then that will be that, yes.


MR FERGUSON:  That's right, and that difficult question about what you are required to do is overcome.


JUSTICE ROSS:  The difficult question that might remain, it's still the question of the status.  If they hand down their decision, I understand what you say and that might be fine, but if the consequence is that an award is varied as a result, there is nothing to stop any party two or three years down the track mounting a collateral attack on the enforcement of any award obligation based on the fact that we got to this point.  That is what I am concerned about.  It's the lack of certainty.  I understand that you are certain in your position and Ms Burke is certain in hers, but that is not going to help anyone two or three years down the track who takes a different view.


I readily acknowledge that there is a degree of speculation in that because you don't know whether there are going to be any variations, but there was a claim and at least an available outcome is the making of orders varying a modern award, and where are parties going to be in that circumstance?


I have sort of got the principal parties before me, but, of course, if there is any subsequent variation, there are many other people who would have an interest in ensuring that the outcome is one that is not open to collateral attack because of how the decisions have been arrived at.  That is my concern.


MR FERGUSON:  I appreciate the concern and where the basis of that is.  Obviously, our first answer to that is the operation of 624 which we say - - -


JUSTICE ROSS:  I quite agree that is your answer to it, yes.


MR FERGUSON:  Specifically our submission would be, my organisation's submission, that has been included for the specific purpose of overcoming that specific dilemma and that should be interpreted in that manner and that will deal with that issue.


In any event, on one view, those considerations - it may be the Commission, as currently constituted, does not wish to deal with this issue comprehensively, but they don't prevent the other Members of the Full Bench from handing down their decision.  The validity of that or otherwise is a matter that - - -


JUSTICE ROSS:  I am not taking any steps to engage with the other Members of the Bench about what they do with their decision.  I am focused on what I need to do.  As you say, if that occurs, that occurs, but that doesn't have anything to do with me.


MR FERGUSON:  No, and in one sense, what that Member does once - - -


JUSTICE ROSS:  Other than Ms Burke's point that if they did that and there were further steps, I think it is generally acknowledged I would need to reconstitute to add another Member, but that would all take place after their process.


MR FERGUSON:  Yes, and there might be an issue, if that arose, if our submission was accepted about the application of this, as to whether that would be a reconstituted Bench or a new Full Bench that might deal with issues, but that is further down the line and, in one sense, what the new Member, the newly appointed Member, if I can put it that way, does in this matter is also a separate issue to the question of whether they should be appointed to the Full Bench.


JUSTICE ROSS:  What do I do about - was there anything else?




JUSTICE ROSS:  What do I do about those other matters I have referred to?  I might say I have had to reconstitute the Public Holidays Bench as well because the former Vice President was a Member of that and, while we are at it, four or five Appeal Benches that were listed in February.  Your submission may call into question those.


MR FERGUSON:  I appreciate what you are saying and, in part, my difficulty is we have directed our submissions very much at the specific questions without the broader considerations being taken into account.




MR FERGUSON:  And even just in the award review context, you would appreciate the significance of that is not lost on me, but I haven't got submissions I am instructed to put in relation to that broader issue.


JUSTICE ROSS:  No, no, I understand that, Mr Ferguson.  I am just wanting to put you on notice that there might be broader implications, that's all, and I have taken those steps already, in any event, in relation to the Public Holiday matter and the appeal matters, so those decisions will rise or fall on what happens after.




JUSTICE ROSS:  In doing the audit, there are three other matters which seem to be part-heard and, as I say, they will be the subject of a separate statement and I will seek the views of the parties interested in those matters about what are the appropriate next steps.


MR FERGUSON:  It may be that we would simply use that forum to advance any - - -


JUSTICE ROSS:  Sure, that's fine.  Thank you.  Mr Ward, can I just test my understanding of your submission.  You say that in the circumstances, I must reconstitute the Full Bench under 622(3) to add at least an additional Member, that once the Full Bench is reconstituted, it is at that point Gooley DP and Spencer C may issue their decision - the third Member can issue a decision, if they wish, but it is not necessary - and until the Full Bench is reconstituted, the Deputy President and the Commissioner are not permitted to proceed to issue their decision.  Do I understand it correctly that, on your submission, once the reconstituted Full Bench issues its decision, whether of two or three or however many are on it, then you take that decision and you take the former Vice President's decision and that collectively becomes the decision in the matter of the Full Bench?


MR WARD:  That is precisely our submission and I might just simply add that how the new Member conducts themselves is a matter of discretion coloured by the requirements of 623.


JUSTICE ROSS:  Yes, all right.


MR WARD:  Can I make some opening comments, and your Honour might just be patient.  I am conscious that we have got about 20 journalists behind us at the moment.




MR WARD:  And I just want to make sure that there is no lack of understanding about my client's approach to today's argument.  Today's debate is not about the merits of the case at all.


JUSTICE ROSS:  No, I quite agree.


MR WARD:  The merits of the case were vigorously opposed by my client and that involved very substantial time and cost.  We are debating today about the further administration of the matter.  My client is endeavouring to assist the Commission in regard to that to avoid two potentially unhelpful consequences.  One is somebody taking the matter up to the Federal Court on some kind of interlocutory basis, which wouldn't help anybody.




MR WARD:  Secondly, to avoid the matter being reheard.  That is how my client has approached the submissions it has filed.  I don't think, given your Honour's understanding of my client's submissions, I need to go to them.  Can I just instead make a few observations about what my friends have said in light of that opening I have just made.


Mr Ferguson has taken a particular view of what section 622(1) means.  Can I just, from an abundance of caution, inform the Commission about our view on that.  It is in our submissions but I might just elaborate it very, very briefly.


Section 622(1) seems to be enlivened by two propositions, firstly, in (a), that there is a Fair Work Commission Member who is part of a Bench - I hope that is uncontroversial that Watson VP was a Member of a Bench - and, in (b), the FWC Member, that being Watson VP - importantly, the next word - "becomes unavailable".  We would have thought applying the grammatical meaning of the  word "becomes" and the grammatical meaning of the word "unavailable" it would be uncontroversial that at a particular point in time, Watson VP became unavailable.


JUSTICE ROSS:  Sorry, Mr Ward, can I just - as I understand Mr Ferguson's point, it is the lead-in expression, "the FWC Member", so, as I understand his argument, you read it as a composite and it is there referring to someone who is a Member at the time they become unavailable, which, on his argument, means this section has no work to do where the Member has resigned and is no longer a Member and that's the reason for their unavailability.


MR WARD:  Yes, but without becoming too cute, at the point where they became unavailable, they were still a Member.


JUSTICE ROSS:  They were a Member, I see, yes.


MR WARD:  With respect, this is a curial provision to avoid rehearings.


JUSTICE ROSS:  That seems clear because of 623 as well.


MR WARD:  Indeed, it does.  It is clear in our mind that factually the requirements of 622(1) are made out on a proper reading of the words, on a proper reading of a context of the provision and its overarching purpose.  It does not concern itself with why the Member becomes unavailable.  The obvious one in the 30-year career I have experienced, sadly, is the Member passes away.


We do cavil purely with Mr Ferguson on the question of how one reads 622(1).  It is an entirely legal argument and has nothing to do with the merits of the case for the purposes of the journalists behind us.


Let's just accept for a minute, though, that he was right for the present purposes of debate.  It places us in a rather unfortunate situation, in our view, and that is if 622 has no work to do here, it cannot be said that two Members of the Commission can constitute a Full Bench.  It is beyond logic of the statute.


JUSTICE ROSS:  So if we were in a different circumstance where the Vice President had not handed down a decision prior to his resignation, could the two Members continue as a Full Bench without engaging 622?


MR WARD:  Irrespective of whether he handed down his decision or not, the question would simply be:  at what point did that person become unavailable?




MR WARD:  Upon becoming unavailable, and in this case it is a finite sense of unavailability - he's gone, a bit like if he had passed away - not wishing that upon him, but if he had passed away - the Bench is no longer a Full Bench for the purposes of the Act, it is just constituted by two people.  I don't think that should be controversial.


The problem we have with that, of course, is that 616 requires a Full Bench to exercise modern award powers, a Full Bench is clearly described in 618 as requiring three Members, one of whom is a Deputy President, and it would seem to us at the point where the Member became unavailable and it was very clear that the Bench was not properly constituted, you simply can't exercise modern award powers until it is reconstituted.


The consequence of section 622 not applying to this, your Honour is either going to have to find a general power in 618(2) to reconstitute the Bench and put a third person on it or, if Mr Ferguson is right, the Bench can't be reconstituted, the Bench can't exercise modern award powers and it would seem we are heading headlong into a rehearing of the matter, and that would have to be the most undesirable consequence given the time and cost already spent.


JUSTICE ROSS:  I certainly share the view that it would be undesirable if that was the consequence and I don't think any party wishes to embark on that path.


MR WARD:  No.  As to the ACTU argument, the ACTU's argument is, in a legal understanding of the Act, very similar to my client's argument.  It just seems to gloss over three propositions.  It doesn't seem to really come to terms with what constitutes "the matter" for the purposes of 622; it doesn't seem to come to terms properly with the matter being completely dealt with, and it seems to gloss over the fact that, as presently constituted, it is not a Full Bench.  So, it just seems to gloss over those propositions.


At the end of the day, this is an arbitral tribunal in the context of modern awards.  It either makes a finding that a modern award meets the modern awards objective and doesn't vary them or it varies them.  We would have thought it was uncontroversial that the matter, that being the claims brought by the ACTU, has not completely been dealt with.  It is not finished, it is not at an end.


JUSTICE ROSS:  It has neither been dismissed nor accepted.


MR WARD:  No, it hasn't, because there is not, at this stage, a majority decision or a unanimous decision of the Full Bench; in fact, with respect, at this stage there isn't a Full Bench.


My client's anxieties are about making sure that we get this right after having put so much effort into opposing the claim.


JUSTICE ROSS:  If it is any consolation, Mr Ward, I share the anxiety and I want to get it right as well.


MR WARD:  Hence my client is trying to assist the Commission in getting it right.  Our interest is in opposing the claim and hopefully, at some point in time, having it rejected.  Those are our submissions.  I haven't heard anything from my friends that would make us change what we have put in our written submissions.


Everybody keeps saying we kind of end up at the same place.  I think there is something to that in this sense:  while we all get there by a very different route, we are encouraging the Commission, with respect, to reconstitute the Bench, upon reconstituting it, allowing Gooley DP and Spencer C, who heard the case, to then issue their decisions.


We believe on a proper reading of 623, the new Member joining the Bench would be comfortable in exercising the discretion in 623 not to have to make a decision in their own right.  We say that with the knowledge that we have, which is only public knowledge.  We do concede that that Member is not barred from making a decision, but we would encourage any new Member to exercise a discretion and to allow the two residual Members who heard the case to hand down their decision and we move on.


JUSTICE ROSS:  I imagine if it got to that point, if I reconstituted and there was an additional Member on, in the normal course, any party could ask for the matter to be brought on so you can clarify the rehearing point and the reliance on the previous material and you could put that submission to any reconstituted Full Bench.


MR WARD:  Certainly if any party wanted to have the benefit of that opportunity, it would be entirely appropriate and consistent with 577 to do that.




MR WARD:  No doubt about that, your Honour.  Unless there are any questions, those are our submissions.


JUSTICE ROSS:  Thank you, Mr Ward.  Can I go to the interstate parties.  In New South Wales, was there anything that you wish to add or say?


MR JOHNSON:  Your Honour, Johnson from the Australian Meat Industry Council.  We participated right up to 2 December in this particular matter.  The evidence was taken, the submissions were heard, the matter was reserved and, in the intervening period, until 27 February, I think it was, nothing was done, but, on that day, the Vice President handed down a decision.


We agree with the submissions of AiG.  We didn't have an opportunity to file written submissions and we apologise for that.  They wouldn't have been at cross purposes with the AiG's submission.  We agree that you do not have to reconstitute a Bench under 622; we agree that the Vice President's decision is irrevocable in the sense that it has been written, it has been published, it has been handed down and all that has to happen is that the other two Members of the Bench hand down their decision, either jointly or separately.


As you remarked on 1 December, I think it was, 2015, your Honour, in that statement - 2014 - dealing with the casual claims and common issues where you said:


Dealing with common issues does not involve any assumption that, if granted, the variation would apply consistently across all or most modern awards.


When the decision of Gooley DP and Spencer C, either separately or jointly, is handed down, it is at that point that the process of common issues is completed and it then may or may not go on to an award stage, but the Vice President's decision is valid, it has been handed down and all that has to happen is the other two Members of the Bench hand down their decision in accordance with the Act and then it is another matter what happens after that.  If the Commission please.


MS VALAIRE:  If the Commission please, we support the AiG submissions.  We apologise that we haven't filed our written submission in support.  We think that under section 622, the Full Bench should not be reconstituted.  Thank you.


JUSTICE ROSS:  There is no need to apologise for not filing a written submission, you weren't obliged to, and I thank you for your oral submissions.


MS VALAIRE:  Thank you.


JUSTICE ROSS:  The Pharmacy Guild?


MR HARRIS:  We will follow ACCI's lead on this one, your Honour.


JUSTICE ROSS:  All right.  Anything in reply?


MS BURKE:  Just briefly, your Honour. In response to the submission of AiG that availability or unavailability is limited to prescribed circumstances, the ACTU takes a different view.  The section does not limit the ways in which a Member may become unavailable and it shouldn't be read down in that way.


In response to the submission by the Australian Chamber that the Vice President has become unavailable, certainly that is what section 622 says if you stop reading there, but there is a verb afterwards "to continue" dealing with the matter and it is those words that the ACTU relies on to say that for the purposes of publishing a decision, the Vice President is and was available and therefore - - -


JUSTICE ROSS:  You say he has dealt with the matter to finality as far as he is concerned and therefore - - -


MS BURKE:  As far as he is concerned, yes, so it's as if he has taken a step, his foot is in the air until the Deputy President and the Commissioner publish their decisions, the foot will then come down, that is the step, but any fresh step or any different step, the Vice President is not available to continue dealing with the matter and 622(1) is triggered and a Full Bench needs to be reconstituted.


I understand the concern, which of course the ACTU shares, remaining, as we are, very optimistic, to essentially future-proof this decision from any subsequent appeal.  There are two points to make in respect of that.  One is that section 616(3) provides that any determination varying a modern award made in this process must be made by a Full Bench.  So, if the ACTU is successful in persuading the remaining Members of the Full Bench that this variation should be made, then, of course, there would need to be a reconstituted Full Bench to give effect to that decision.


JUSTICE ROSS:  So a reconstituted Full Bench would need to make any subsequent determination varying a modern award?


MS BURKE:  Yes, that is very clear.  The second point to make is just that the Full Bench isn't bound by the terms of any application made by 599 in terms of what it comes to in its decision and so it is arguable at least that a party down the track who is disappointed or disaffected with the decision - I am assuming again that it is in favour of the ACTU's application - really needs to just look at the terms of the variation that was made by the Full Bench issuing a determination.  The reasons are not the same thing as the determination itself.  It may be that the Deputy President and Spencer C find that some amendments should be made to modern awards but not in the terms proposed by the ACTU.  In those circumstances, a disaffected person would face the same difficulties.


Unless I can assist, that is all from the ACTU.


MR FERGUSON:  One thing on behalf of ACCI, and it is just in relation to what arises if our contention that section 622 does not apply in this situation.  I intended to raise the point that it is arguable that 618(2) is a general power that might arise in the circumstances where section 622 does not apply and be utilised for the purpose of applying the - - -


JUSTICE ROSS:  Wouldn't you read the general power down when you have got a specific power?


MR FERGUSON:  Well - - -


JUSTICE ROSS:  The Clothing & Allied Trades decision - wouldn't you follow that line of authority?


MR FERGUSON:  Yes, but for the proposition that 618 is dealing with a very discrete set of circumstances where an FWC Member, as we have put, becomes unavailable.


JUSTICE ROSS:  I see.  So, if I accept your construction of 622, it is not dealing with a specific circumstance we have here, therefore I can use the general power?


MR FERGUSON:  That's right, and what this is actually doing is enabling the matter - if you look at 622(2), that is enabling a matter to be concluded without the involvement of the President, without another Member being appointed.  So, let's say you have a five-Member Full Bench and if one Member becomes unavailable in the relevant sense but it is otherwise properly constituted, and I will come to subsection (3) - - -


JUSTICE ROSS:  Sure, but that is not the circumstance we have got here because 622(2)(b) says "at least three Members" for the Full Bench.


MR FERGUSON:  Yes, that's right.


JUSTICE ROSS:  So they can continue to deal with it if they have got at least three Members, but they don't.


MR FERGUSON:  But, as we submit, we say the decision that is handed down, if a decision is handed down by the remaining two Members, that is a valid decision of the Full Bench.  We accept they arguably can't do something further as only two Members, but they can hand down that decision.


JUSTICE ROSS:  All right.


MR FERGUSON:  In relation to subsection (3), yes, that does force your hand in that specific circumstance, but it also does something different in that it enables the Full Bench constituted differently than under 618 to continue to deal with the matter, so it enables the Full Bench not including one of the Members who the President had otherwise appointed to deal with the matter, so it is overcoming the problem that we have under 618 in this specific scenario where someone is still a Member of the Commission but just unavailable for this to occur, and that is further context for our argument that this is about unavailable Members of the Commission not a circumstance where someone ceases to be a Member.


JUSTICE ROSS:  So what do I do with the AM2015/2, the Family Friendly Work Arrangements Full Bench?


MR FERGUSON:  Because that hadn't arisen, I suppose, for consideration with the specific questions, we would have to think about that further.


JUSTICE ROSS:  All right.


MR FERGUSON:  I will come back to you in relation to that issue.


JUSTICE ROSS:  That is fine.  I will provide a further opportunity for everyone to make a contribution about that.  It probably becomes slightly more urgent than I had thought, Ms Burke, because I wasn't aware that you were seeking some sort of variation to the directions.


MS BURKE:  I am sorry, your Honour, we are not seeking a variation to the directions, we had sought a variation to the clause that the ACTU is seeking to have - - -


JUSTICE ROSS:  I see, all right, so it's the claim that - - -




JUSTICE ROSS:  In that case - - -


MS BURKE:  But in respect to the question, can I just refer your Honour to the requirement that the four-yearly review be conducted by a Full Bench.


JUSTICE ROSS:  Yes, it is really a question of, on Mr Ferguson's construction, I could not reconstitute that Bench under 622, there would have to be some other power to reconstitute because he says it doesn't operate on the resignation, retirement or death of a Member.


MS BURKE:  I understand that submission and I can't assist any further with it.


JUSTICE ROSS:  Yes, we are where we are.  Perhaps in relation to both what should be done about AM2015/2, and I only raise that here because the parties were common between these two matters and they seem to have some relationship, but the other matters I have referred to will be the subject of a separate statement and I will deal with them in due course.


Both that matter, what is to be done about it, and also any commentary you have or anything you wish to say about the judgment in Morton v Transport Appeal Board, particularly what is said about the decision-making process of, in this instance, a board of three but, by analogy, a Full Bench, and I recognise immediately there is a different statutory context, but from 41 on to about 49 of that seems to be the only part that may be relevant, so anything you want to say about that and AM2015/2, is a week sufficient?


MR FERGUSON:  Yes, your Honour.


MR WARD:  Yes, your Honour.


JUSTICE ROSS:  All right.  If, for some reason, there is any difficulty, but I will assume you will shoot something in by, let's say, 4 o'clock Wednesday of next week, so slightly more, and if you require further time, just let me know.  My concern in this matter is to - - -


MR JOHNSON:  Your Honour, it's Sydney.




MR JOHNSON:  Your Honour, what was that reference to the New South Wales Supreme Court?


JUSTICE ROSS:  We will make sure that you get a copy of that.  My Associate will send you a copy.  The reference number is Morton v Transport Appeal Board [2007] NSWSC 1454.  It is the only thing we have been able to turn up.  I am not suggesting it is directly on point, but I wanted to draw your attention to it and give you an opportunity to say what you wish to say about it.


My concern is to find a process or an outcome that provides certainty to parties, and not just the parties sitting here but, in the event there was a subsequent variation arising from this Full Bench decision, however one characterises it, to awards that those awards not be the subject of collateral attack on the basis that somehow this wasn't a Full Bench decision or the Bench wasn't properly constituted and the relevant section doesn't say that.


I want to let you know that I am at least contemplating referring the question to the Federal Court as a question of law.  I will give some thought to that and I will reflect on the submissions you have made.  I won't take that step without coming back to you.  If I do move down that path, I will express it as a provisional view and I will attach the form of the question and the relevant factual matrix and I will provide each of you or any interested party with an opportunity to comment on that, but I did want to raise that that is at least a matter that is in contemplation.


There is no need for you to respond to that either now or next week.  As I say, I will reflect and it may be I form a different view having gone through the transcript of today and whatever additional points you wish to raise by 4 pm next Wednesday.  If I do decide to examine that option further, as I say, I will provide you with an opportunity to say what you wish about that.


Is there anything else from anyone?  No?  All right, thank you very much for your attendance and thank you for your submissions.  I appreciate that it is a difficult legal issue.  It is not one about which there is any precedent that is going to assist any of us and, picking up Mr Ward's point, I accept the spirit in which the submissions have been advanced.  They have not been put on the basis of having regard to what your substantive claim was or anything like that, it is simply trying to find a path through and probably the differences in the submissions highlight the complexity of the issue and the fact that it is not clear cut.


Thank you, I will adjourn.

ADJOURNED INDEFINITELY                                                           [2.01 PM]