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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





12.59 PM, WEDNESDAY, 28 JUNE 2017




JUSTICE ROSS:  Can I have the appearances, please.  Firstly, in Melbourne.  Ms Ismail?


MS S ISMAIL:  Good afternoon, your Honour.  Ms Ismail, initial S, for the ACTU.


JUSTICE ROSS:  Thank you.  In Sydney?


MR J ARNDT:  Your Honour, Arndt, initial J, for the Australian Chamber.


JUSTICE ROSS:  Thanks, Mr Arndt.  It might be easier if you remain seated.  Mr Smith?


MR S SMITH:  Yes.  Smith, initial S, of the Australian Industry Group.


JUSTICE ROSS:  Thank you.


MR G JOHNSON:  Your Honour, Johnson is my name, initial G.  I appear with Mr K McKell for the Australian Meat Industry Council.


JUSTICE ROSS:  Thanks, Mr Johnson.  I think I have received a written submission from your organisation, as well.  Is that right?


MR JOHNSON:  A short one, yes.


JUSTICE ROSS:  All right.  Thank you.  I might make some introductory remarks before calling on each of you to say whatever you wish to say.  As I indicated in my statement of 23 June, the questions of law settled in my earlier decision of 18 May have been filed in the Federal Court and were the subject of a case management hearing last Thursday, 22 June.  I provided links in my statement to copies of the transcript of that hearing and the orders issued by Kenny J.


As I said in my statement, the court expressed some serious concerns about the competence of the proceeding and, in particular, whether or not the manner in which the special case was framed gave rise to a matter in the constitutional sense such as to attract the jurisdiction of the court.  The court identified this as a preliminary issue and the orders subsequently issued make it clear that it may take some months for this preliminary matter to be resolved.  If the court was then satisfied as to the competence of the proceeding, it is likely that the questions of law would not come before the Full Court until sometime late this year.


The court also suggested that as an alternative to pursuing the special case or the referral, the questions raised could be brought before the court by me making a decision as to the reconstitution issue and a dissatisfied party then bringing an application for judicial review.  Given the views expressed by the court, I have listed the matter for mention today - or for hearing today, further hearing, to give any interested party an opportunity to be heard on the proposition that I discontinue the special case, the section 608 referral, subject to the court granting leave to do so and that I decide the reconstitution issue myself.


Before I hear from you, I should indicate that if I decide to take that course - that is, that I decide the reconstitution question myself - I will of course have regard to the submissions already filed by the parties, including the parties that are represented today.  Those submissions were summarised in my statement of 28 April this year and in the decision of 18 May this year.


I also note, as I indicated earlier, that the Australian Meat Industry Council lodged a further short written submission on 27 June in response to my statement of the 23rd.  I also wish to advise you that I have been informed that the remaining two members of the Full Bench, Gooley DP and Spencer C, are in a position to hand down their decision or decisions in this matter.


Look, with that background, is there anything the parties wish to say bearing in mind that, as I've indicated, if I proceed down the course that has been foreshadowed and determine the reconstitution question myself, I will have regard to the material that you have already filed in relation to that issue, so you need not repeat what you have already said about that matter.  Ms Ismail?


MS ISMAIL:  Thank you, your Honour.  Yes, the ACTU has filed written submissions and made oral submissions before this tribunal on 4 April, 12 April and 10 May.  I will not run over those submissions again.  We repeat and rely on them.  As you have pointed out, at the case management hearing her Honour raised some questions about the case stated and indicated that there may be other ways to bring the matter before the court for a resolution, including the course of action proposed by your Honour now.


The ACTU did not oppose the referral to the Federal Court and we do not oppose the discontinuance of the special case, subject to the leave of the court.  The ACTU of course is concerned to ensure that there is certainty in any outcome.  Equally, we are very conscious that this is a case involving an application for new rights for employees who are at risk of harm and we are equally concerned to ensure that the outcome is expeditious.


We should make it clear that we have not had the opportunity to carefully consider the numerous issues that were raised by her Honour last Thursday in detail and particularly given the complex nature of the administrative law and constitutional law matters raised, the ACTU would reserve its rights in relation to those matters in the event that submissions are needed in the future.


JUSTICE ROSS:  I should indicate, Ms Ismail, that I am not expressing any view about the substance of the matters raised by her Honour in the case management hearing.  I would make this observation to all parties:  by raising this issue, I don't want to be taken to be necessarily accepting the proposition or the questions raised as to the competence of the matter before her Honour.


I have merely been prompted by a concern that if the matter continues in the Federal Court, it's likely that all of us - and by that I mean the Commission and all the parties represented here - may be involved in protracted proceedings in the Federal Court that may involve constitutional issues that perhaps travel well beyond the direct interest of all of us in having this issue resolved.


My concern really went substantially to the delay that is highly likely to result from the way the matter has been dealt with in the Federal Court and the consequent costs that will be incurred by the parties as a result of that process.


MS ISMAIL:  Yes.  Thank you for that clarification, your Honour.  As I mentioned, the ACTU is also concerned about delay and we don't oppose the discontinuance.


JUSTICE ROSS:  All right.


MS ISMAIL:  Thank you.


JUSTICE ROSS:  Thank you, Ms Ismail.  Mr Arndt, are you up first?  No need to stand.


MR ARNDT:  Thank you, your Honour.  Having regard to the views expressed by her Honour in the Federal Court, it really does seem apparent that the most efficient course would be to take the one that has been proposed by her Honour.


JUSTICE ROSS:  I'm sorry, you might just speak into the microphone, Mr Arndt.  The last I heard from you was that you were submitting that it did seem that the most efficient course was the one that was both proposed by her Honour, which was the one that I was advancing in the statement and that is - I assume you mean by that, that I determine the question as to the reconstitution and the parties can consider that, and form a view about whether they wish to challenge that in judicial review proceedings.


MR ARNDT:  That's right, your Honour.  On that basis, the Australian Chamber would not oppose an application to discontinue the Federal Court proceedings.  That seems the appropriate and sensible thing to do in the circumstances.


JUSTICE ROSS:  Thank you, Mr Arndt.  Are you content on the reconstitution question, if I can put it generally that way, to rely on the submissions that the chamber has previously made?


MR ARNDT:  That's right, your Honour.


JUSTICE ROSS:  All right.  Thank you.  Mr Smith, your position?


MR SMITH:  Yes.  Thank you, your Honour.  As you know, throughout the submissions that we have made in this matter, our position has been that section 622 does not apply in the current circumstances and there is nothing to prevent Gooley DP and Spencer C handing down their decisions.  We are happy for you to discontinue, or seek to discontinue, the special case.  We would submit that if you make a decision then on whether section 622 applies in the current circumstances, if your decision aligned with either the submissions of AiGroup or the submissions of the ACTU, then there would be nothing more that you would need to do at that stage.




MR SMITH:  Because that would leave the two members to hand down their decisions.  The decisions of those two members and former Watson VP would constitute the decision of the Full Bench.




MR SMITH:  If you, as an alternative, were to accept the submissions of the Australian Chamber, then that would leave something else to be done, but that would simply mean that you would reconstitute the Full Bench and we would submit that at that point it would be best - you know, at that time - to work out, well, what would that mean rather than having to deal with all the issues before that; because if you made the former decision, as we said, there would be nothing more that needs to be done.


JUSTICE ROSS:  Yes, I follow.  I understood your submission to be that you didn't oppose me seeking to discontinue the special case.  Do I take it from that, that if that is the course I adopt, then you would not oppose the discontinuance in the Federal Court?


MR SMITH:  Yes, that's correct, your Honour.


JUSTICE ROSS:  Thank you.  Anything further, Mr Smith?


MR SMITH:  No, your Honour, other than to say that we continue to rely on all the materials that we have filed to date.


JUSTICE ROSS:  Of course.  Thank you.  Mr Johnson?


MR JOHNSON:  Our position is consistent with AiG's and has been for a number of months.




MR JOHNSON:  So I don't think there is anything we can add.


JUSTICE ROSS:  All right.  Do I take it from that, that the general position of the parties who have made submissions today is that you do not oppose the course that was outlined in my statement of last week?  That is, that I proceed to seek to discontinue the referral matter and each of you, I think, has indicated that you would not oppose that course when the matter comes for the court's consideration as to whether or not to grant leave.  Further, that I would determine what I characterise as the reconstitution issue on the basis of the material that you have already submitted.  I think that is the general position of each of you.


Of course each of you advance - well, AiG, the ACTU and AMIC put a common position that it is not necessary to reconstitute, albeit for different reasons, and that, as Mr Smith put it, the two remaining members of the bench once they issue their decision or decisions, then the decision of the Full Bench would be the decision of the former Vice President and the decisions of Gooley DP and Spencer C.  Ai Group and the ACTU advance different reasons for arriving at that conclusion, but, nevertheless, that is the conclusion you propose.


Mr Arndt, I understand the submission put by ACCI on the previous occasion and I have summarised that in my earlier statements and decision.  Is there anything else anyone wishes to say?


MS ISMAIL:  Your Honour, if I might raise the matter of the family friendly work arrangements case in 2015/2.  It may be that you're not in a position to provide any guidance to the parties today, but we are wondering whether you are now in a position or will be in the future to advise us on the reconstitution of the bench in that matter.


JUSTICE ROSS:  That Full Bench has been reconstituted.  I thought I had issued a statement identifying the 10 matters in which I was proposing to reconstitute.


MS ISMAIL:  Yes, your Honour.  It may be a case of identifying who the new member is.


JUSTICE ROSS:  That would be me.


MS ISMAIL:  Okay.  Thank you.


JUSTICE ROSS:  I can also indicate that I'm likely to list that matter for mention, just to see if there is anything that the parties wish to raise.  I think it has been listed for two weeks of hearing in October.  Is that right?


MS ISMAIL:  That's right, your Honour.  Yes.


JUSTICE ROSS:  Well, I will check the directions that have been issued, but is that for both the evidence and the submissions or - you may not know, Ms Ismail.  Look, the short answer is I have reconstituted it.  I'm now the Presiding Member.  I propose to call the matter on for mention once I get out from underneath the work I've currently got, so in the next couple of weeks I'll undertake to do that and let the parties know.


MS ISMAIL:  Thank you, your Honour.


JUSTICE ROSS:  Anything further?  No?  Well, can I thank you for your attendance and your submissions.  I would hope to hand down my decision in respect of the matter by the end of the week.  Nothing further.  Thank you very much.  We'll adjourn.

ADJOURNED INDEFINITELY                                                           [1.15 PM]