PN1

JUSTICE ROSS: I'll invite the Commonwealth to speak first. Ms Sheehan?

PN2

MS A SHEEHAN: If the Commission pleases, I would like to acknowledge the Traditional Owners of the land on which we meet and pay my respects to their Elders past and present. I would like to extend that respect to Aboriginal and Torres Strait Islander people present today. Good morning, President, representatives of industry, the Trade Union movement and the legal profession.

PN3

I particularly welcome and acknowledge Deputy President Andrew Bell and members of his family on this significant occasion. I appear today representing the Australian Government, the Attorney‑General and Minister for Industrial Relations, Senator Honourable Michaelia Cash. The Attorney‑General apologises that she is unable to be with us today to welcome Deputy President Bell.

PN4

The Fair Work Commission, like Fair Work Australia before it, is required to perform functions and exercise powers under the Fair Work Act 2009. The Fair Work Commission and its predecessors have played an important role in shaping Australia's industrial relations landscape for over 100 years. During this time the functions and remit of this institution have grown as a result of social, economic and legislative change.

PN5

Now that the national industrial relations legislation covers the majority of Australian workplaces, the decisions of this Commission have broad‑ranging impact throughout the country. The appointment of Deputy President Bell will contribute to the vital role that the Fair Work Commission plays in ensuring that our industrial relations system operates in a fair and transparent manner, and promotes cooperative and productive workplaces.

PN6

Deputy President Bell, your appointment commenced on 18 January 2022. You have been appointed to perform the full range of Fair Work Commission functions. You bring to the Commission your considerable experience and knowledge of industrial relations law. I acknowledge your long‑standing service as a barrister of the Victorian Bar. You are an experienced advocate who has dealt with a range of complex employment law issues. This will be valuable to the community that is served by the work of this tribunal.

PN7

The balance of fairness of the system depends on the integrity and skills of members of the tribunal. You are noted for these attributes and will no doubt make an important contribution to the work of the tribunal for years to come. Great responsibility is placed on members of the Fair Work Commission. If they are to discharge their responsibilities effectively they require the goodwill, understanding and cooperation of parties, employers, employees and their representatives. I trust that this will be forthcoming from all concerned to you as a new Member of the Commission.

PN8

Deputy President Bell, on behalf of the Australian Government I congratulate you on your appointment. I convey our goodwill and wish you well in the exercise of your responsibilities of your office, may it please the Commission.

PN9

JUSTICE ROSS: Thank you, Ms Sheehan. Mr Barklamb?

PN10

MR S BARKLAMB: Thank you, your Honour. Deputy President Bell, on behalf of the Australian Chamber of Commerce and Industry and the community of employers and their representatives who appear before you, it gives us great pleasure to welcome you to your new role. You come to the Commission after 12 years at the Victorian Bar, but I want to commence by noting your area of professional focus, competition law.

PN11

You worked in various roles at the Australian Competition and Consumer Commission, rising to become Assistant Director of Enforcement. You were responsible for conducting investigations and managing actions on various competition matters. You also pursued this area in practice with Norton Rose and then initially at the Bar.

PN12

This Commission is not a regulator. However, your background in regulation stands you in good stead in appreciating the application of the law to the complexities of doing business in our contemporary often very complicated world; complications that are multiplied in the context of employment modern awards and the Fair Work Act. Reports of your time with the ACCC and in practice are of someone with a fierce intellectual interest, able to get into the depth and detail.

PN13

Deputy President, in 2010 these qualities took you to the Bar. Your initial matters seemed concentrated away from the industrial, focusing on competition, pricing and mergers. However, quite rapidly you started to take industrial briefs in increasingly high profile and significant matters. We were struck in particular by the range of matters you took on in construction, health, road transport, airlines, maritime and education, with both governments and the private sector.

PN14

Your briefs ranged widely across industrial action torts, damages, injunctions, enterprise bargaining agreement interpretation, termination matters and more, standing you in very good stead for the breadth of work of this tribunal. Even those with only a passing knowledge of the organisations you represented would conclude that you were very comfortable and capable quite rapidly in the most urgent high profile and contentious of industrial matters.

PN15

Tellingly, you gained the confidence of significant others, many of whom are here today. The quality and eminence of those who led you in various matters stands out. The regard in which you are obviously held by a number of Australia's very top industrial barristers further underscores the qualities and experience you bring to this Commission.

PN16

Deputy President, you also come to the Commission with a degree in chemical engineering. We suspect that you're one of the very few members with a background in the hard sciences. There is certainly no mention of engineering or science in section 627 of the Act. When I looked at what defines a hard science there was an emphasis on testability, rigor, accuracy, objectivity and explanation.

PN17

These are ways of approaching questions that share a great deal with the best execution of the law and your combined academic background is another strength you bring to your new role. Deputy President, finally on your cases you seem to have developed something of an early sideline in matters linked to the racing industry. I'm not sure how far this extends to the punt, but you would not be the first to come to this tribunal with an interest in matters equine.

PN18

I want to close as we closed a number of these recent welcomes. Members of this Commission undertake a very important public service and discharge an important responsibility for the Australian community. Unfailingly, each member across the diversity of their pre‑appointment backgrounds discharges their responsibilities independently, impartially, based on merits and law.

PN19

Deputy President, how the statute you administer changes and adapts will be determined in the political realm. However, during your time on the Commission you undoubtedly play a key role in making evolving industrial legislation work and in applying the statute in whatever form and with whatever focus practically to real world circumstances in the best interests of your community, working people and those they work for.

PN20

You sit at a senior level on a tribunal that will play a critical role in grappling with the future of work and with changes in Australia's economy and society which in recent years have taught us can be rapid and unexpected. Deputy President, your experience and achievements all go very well for your contribution to this important work and our welcome once again, if the Commission pleases.

PN21

JUSTICE ROSS: Thank you, Mr Barklamb. Mr Kemppi?

PN22

MR S KEMPPI: Thank you, President. Welcome. The Fair Work Commission as the intended umpire is central to the functioning of the Australian industrial relations system. Appointment to that Commission is a significant honour for which we congratulate you. The role of Commissioner is of course one of great responsibility and you have been appointed on the basis of extensive knowledge in the law, particularly industrial law, but, as I now know, many other fields including chemical engineering. It will be interesting to see how that is applied. I do welcome comments about scientific rigor and I'm sure you will find that you're using those skills sooner than you might perhaps expect.

PN23

We note that you have spent over a decade at the Bar and having been an advocate I expect you will be able to look at good arguments, bad arguments, cut through those. I just hope that it is not required the next time I am before you in this place. Of course the role involves more than analysing legal arguments. It is not a purely legal role. It is not the role of judge, of course. The Commission can be very different things to very different people. It can be a familiar face, it can even be a place of work for some people.

PN24

Many people in this room will be familiar with how the Commission operates and no stranger to this place, but many of the people who come before you will be workers whose expertise lies in completely different areas and we of course ask you to keep that in mind, as I'm sure you will. The people who come before you will be ordinary workers at times, they will be employers, small business people, experienced HR advocates, the breadth of participants in the industrial system, and they will not necessarily come to you in the best of circumstances, so they will look to you to be impartial, fair and to exercise justice.

PN25

They will also look to you to bring them together even where it seems impossible to be able to do so. We hope that as well as applying the law when you need to and making good sound decisions, as I have no doubt you will having been a former barrister, you also are able to bring parties together and not need to make those tough decisions sometimes.

PN26

Whatever happens in the future we would hope that the workers that come before you can leave seeing that justice has been done and thinking that they have been treated fairly, whether or not or all things have gone their way. We can't really ask for a great deal more and with that mind we congratulate you on your appointment, and say welcome.

PN27

JUSTICE ROSS: Thank you, Mr Kemppi. Ms Annesley?

PN28

MR R ANNESLEY QC: May it please the Commission, I appear on behalf of the Victorian Bar to congratulate you on your appointment as Deputy President of this Fair Work Commission. Educated on the Mornington Peninsula you attended Mount Eliza Primary School and Peninsula Grammar. You were accepted into the University of Melbourne where you undertook a double degree in science and engineering, majoring in chemistry and chemical engineering.

PN29

At university you adopted the traditional look of engineering students, effortlessly teaming death metal jeans with flannelette shirts, topped with long flowing brown hair. You subsequently had an epiphany and returned to university to study law at La Trobe ultimately achieving an honours degree. You returned to the University of Melbourne where you completed a masters of law.

PN30

You were admitted to practise on 13 March 2007 after periods working as an assistant director of enforcement at the ACCC and as a senior associate of Norton Rose Fulbright you were called to the Bar in 2010. You worked with Phil Solomon QC who describes you as diligent, funny and very easy company in chambers. Initially you were briefed in complex, general and niche commercial and equity matters, including as junior to Peter Riordan QC, now Justice Riordan of the Supreme Court of Victoria, and Stewart Maiden QC.

PN31

You took to this work effortlessly, drafting complicated counterclaims and generally winning favour with difficult clients through your ability to relate easily to others. However, it was not long before you were co-opted - or as one barrister put it, dragged - into the orbit of industrial relations and employment, chiefly by your good friend John Snaden, now Justice Snaden of the Federal Court. You took the area with gusto, quickly moving from a weekend casual to a full‑time permanent member of the IR Bar.

PN32

You worked with a number of silks in the area, including most recently Chris O'Brady QC, Civil Air Operations Officers Association of Australia and Air Services Australia. You had a busy practice appearing unled in employment and industrial matters, and you were also known to make cameo appearances in the Victorian Racing Tribunal. Even if you commenced undertaking IR work by default, history will show that your affinity in this area that you have never left and now appointed to this Commission until the age of 65, you are committed for life. The commercial world's loss is the industrial world's gain.

PN33

Your colleagues in chambers describe you as an incredible intellect and a great sounding board. You have a reputation as being a quiet achiever who is remarkably modest for a person of your skills, both qualities being somewhat rare to find in a barrister. For a number of years you were the unofficial manager of the first floor of the Owen Dixon Chambers West where you were affectionately known as the floor's shop steward.

PN34

In this role you made a challenging renovation of the floor, navigated rectification works when the wrong artwork was unfortunately installed on the floor and brokered a compromise in a heated dispute that broke out amongst various factions on the floor regarding the annual floor Christmas party. Many a colleague was heard to ponder whether you had missed your call as a diplomat. You also took care to ensure that more junior barristers were well looked after on the floor.

PN35

Once at the Bar you left your days as a flannelette‑clad engineering student well behind you. Early in your career at the Bar, you and Jack Healey were briefed as baby barristers on the Marysville bushfire class action. Prior to the trial a site tour of the affected areas was arranged with the barristerial team. An army of well known silks was briefed, including John Karkar, (indistinct) and Samantha Marks.

PN36

You and Jack were somewhat overawed and eager to impress, so eager that you turned up to the bus on the morning of the site tour dressed in suits and ties as if you were off to court, only to discover that the silks were dressed as if starring in an episode of The Farmer Wants a Wife. As the sight of both of you the whole bus burst out laughing. However, you didn't let the formal attire prevent you from getting the most out of the site tour and were later seen jumping barbed wire fences, and wading through knee‑high mud, a testament to your tenacity and perhaps an over‑confidence in your dry cleaner.

PN37

You also undertook various voluntary government roles during your time at the Bar, from 2017 to 2018, when you were the assistant honorary secretary, then the honorary secretary of Victorian Bar Council. You were also a member of your list committee and an executive member of the Industrial Bar Association. You are described by your former instructors as a delight to work with and having a real passion for employment disputes and Fair Work Act matters generally. Your balanced perspective on matters was greatly appreciated, as was your diligence and focus. All these qualities will stand you in good stead as a Deputy President of the Commission.

PN38

Outside of the law you are a long‑suffering Collingwood supporter, a keen cyclist and proud owner of a turbo‑charged VW hatchback which you may or may not have taken on a Calder Park Hot Lap. You are a devoted father to your daughters Charlotte and Madeline, and during your time at the Bar you periodically escaped with your wife Caroline and your daughters to your favourite holiday destination in Fiji.

PN39

On behalf of the Victorian Bar I wish you a long, satisfying and distinguished career as a Deputy President at this Commission, may it please the Commission.

PN40

JUSTICE ROSS: Thank you, Ms Annesley. Deputy President Bell?

PN41

DEPUTY PRESIDENT BELL: Thank you, President. I would first like to thank my wife Caroline, sitting over there. She has her own job as a lecturer outside of law, outside of industrial relations, for those in this room a true civilian if you will. My background, as you all heard, is from the Bar and while a career at the Bar has a lot of benefits, one occupation is of course impact on family members who support you. As most advocates and certainly I think barristers will know that if, for example, you have a trial starting on a Monday, there is a very high chance that you will have been working on the Sunday, if not the Saturday.

PN42

Having now attended perhaps more of these welcome ceremonies over the journey that I might care to remember, it's a little bit unusual being on the receiving end of one. Perhaps because of that maybe slightly jaded comment I must have made, Caroline perceived that I might be so thoughtless as to think that my mother might not be interested in attending and I think Caroline's phrase was, 'If you do invite your mother she will not speak to you again.' Rest assured I certainly did invite my mother to join us, but unfortunately my father who is not well these days and the difficulties of that associated with the travel it also would have taken to get here, meant she was unable to join us.

PN43

I would like to specifically thank the President of Fair Work, the Honourable Justice Ross, and my fellow members - and I won't list you by name - and staff of the Commission. I say that not simply for the welcome ceremony here today, but for having made me welcome over the last four months since I have started. Ms Sheehan from the Attorney‑General's Department, Mr Barklamb from the Australian Chamber of Commerce and Industry and Mr Kemppi from the ACTU, thank you, as well.

PN44

I am mindful that there is some event that is occurring at the moment which will apparently have a finale on this Saturday. It's not Moomba, I know that, because I attended Moomba a month ago. Certainly for ACCI and the ACTU I understand this event has passing interest for the organisations that you represent and so I'm mindful of that, and I do thank you taking your time away from that for the kind words that you've said here today, so I appreciate that.

PN45

It was four months ago to the day in fact actually that I was sworn in, in a private session by the Honourable Justice Snaden and who I'm grateful is here today. Having been here four months I now have a better incite as to my current responsibilities than I certainly did on that day then looking forward. In particular I would thank the President of the Victorian Bar here today for your very exaggerated and therefore very kind words about me, but you have reminded me of the very good qualities of the organisation that I have left.

PN46

Coming from the Bar to this place there are a number of similarities, in particular I think between my old and new roles. One common feature is long periods essentially working alone usually in chambers and notwithstanding that in both places I found both places are very collegiate. The Commission is a genuinely collegiate place and perhaps like other courts and tribunals I suspect from people looking from the outside often don't appreciate just how collegiate the organisations actually are.

PN47

It's not just the welcoming words I have been given, but there is an open door practice - much like the Bar - where members certainly from my experience to date have been more than generous with their time with me and I hope over time I will be able to reciprocate that. One feature of the Commission whose force, well, I was aware of, but whose force I probably didn't fully appreciate until I arrived here is the responsibility on Members to actively resolve matters themselves. I'm not just talking by the arbitration function which we're plainly familiar with, but the conciliation conferences are the example of the ones we would know the most.

PN48

One facet of this is what many of you would know, particularly for dismissal‑related matters, is Member‑assisted conciliations; or as of course they get abbreviated to MACs. It allows a private conference to occur before a member of the Commission, which is important but not necessarily the one who will be determining the matter if it doesn't resolve. I mention it plays particular importance for dismissal‑related disputes and I suspect without it the court list would probably grind to a halt.

PN49

Without exposing all the deep inner secrets of the Commission, I can reveal some details for you today. There are complicated and fairly sophisticated MAC swap arrangements that occur between Members. If a Member has MAC'd a matter for me, they have a credit in the bank in effect for me to assist in conciliating one of his or her matters. I cannot yet say - because I have only been here four months - if there in fact exists secondary trading markets in which MAC credits might be traded.

PN50

Perhaps there should be, although that might raise many issues and I suspect that Commissioner Tim Lee's trading credits would trade at a premium given the success I've certainly observed in him in resolving matters at conciliation. I fear at four months in mine are probably going to be trading at a discount, so perhaps it's best that some doors are not opened.

PN51

I mention this not only because it's an important part of the Commission's work, but that role that I've just described I don't think would work as well without real levels of collegiality. It would still work, but I don't think it would work as effectively. The Victorian Bar was also particularly collegiate and I will miss it. It has a truly open door culture which is quite consciously I think instilled in all new readers when they sign the Bar roll and I think it does remain a carefully guarded treasure of the Bar.

PN52

Most of those whom I have invited today were from chambers I have shared, committees I have sat in, barristers who I have worked closely with who I have had more than perhaps one or two extended lunches with. There is some overlap in that Venn diagram, but those details won't be part of this feature. To all my former colleagues, friends and new colleagues here today, I thank you.

PN53

I said chambers, as well, because another common feature of the Bar, the Commission and the Courts is that they're not called rooms, and they're certainly not called an office, they're called chambers, but in both places the allocation of chambers is usually seniority. Certainly at the Bar in my more recent experience they're certainly not a democracy, although perhaps I'm wrong on that and I've misremembered when I joined my most recent floor at Level 22 of Aickin Chambers when Stuart Wood QC asked me if I wanted to join the floor. Perhaps he truly had a full proxy of valid votes that had been taken and there had been thorough consultation with all the members, particularly the junior members of the floor, before I was invited to join there.

PN54

The collegiate features of the Bar which I have left were not limited to chambers. There are a number of the committees of the Bar, with the Industrial Bar Association being one that I have spent some time with. Malcolm Harding SC, who is President of the IBA, was to be here today to wave the flag of the Industrial Bar Association, but like so many in our current times he had sufficiently COVID‑like symptoms as of yesterday that he figured it was not appropriate to be sitting himself next to someone who might be listening to him with those symptoms. That said, I think we have at least three flag bearers here; Fiona Knowles, Alex Manos and Dimitri Ternovski. You are flag bearers for today, so welcome.

PN55

We all know how different the last two and a half years have been from the period before that, particularly in practice and in advocacy. In perspective this sitting here today is in fact my first in‑person hearing as a member of the Commission. While that's said, I have another one tomorrow which is, you know, green shoots emerging and I'm certainly hoping to see many more.

PN56

Despite the mode of hearings being different, some matters ought to remain unchanged. In particular when parties come to the Commission, and before me at least, they expect the member who hears the matter will ultimately do their best to listen to the evidence, decide the facts appropriately and apply those facts to the law in a timely way. Parties - and I think Mr Kemppi in particular emphasised this correctly - should also leave the courtroom feeling that they have had a fair hearing even if the result does not go their way.

PN57

That is not to say that errors will not be made and appeal benches or courts even further up might take a different view of some matters, but they're certainly the standards I will be hoping to make, albeit perhaps without the focus on the errors. Justice Ross, thank you for the welcome this morning and for giving me the opportunity to have said these words, and I will pass that back to you.

PN58

JUSTICE ROSS: As the Deputy President indicated, he has already taken the affirmation of office and commenced the discharge of his duties, but I think it is important that members take the affirmation in public because it represents the bond between the member and the community that we serve, so I would now invite Deputy President Bell to take the affirmation of office.

PN59

DEPUTY PRESIDENT BELL: I, Andrew McGregor Bell, do solemnly and sincerely promise and declare that I will bear true allegiance to her Majesty Queen Elizabeth II, her heirs and successors according to law, that I will well and truly serve her in the office of Deputy President of the Fair Work Commission and that I will faithfully and impartially perform the duties of office.

PN60

JUSTICE ROSS: Thank you. We will adjourn the Commission.

ADJOURNED INDEFINITELY [9.28 AM]