2014 Review of Default Fund Terms
[2014] FWCFB 2728
•28 APRIL 2014
[2014] FWCFB 2728 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156A—4 yearly review of default fund terms
(AM2014/6)
JUSTICE ROSS | MELBOURNE, 28 APRIL 2014 |
[1] This decision deals with correspondence of 17 and 23 April 2014 from Ashurst on behalf of their client, the Financial Services Council Ltd (the correspondence). The correspondence requested that the President list for hearing, as soon as possible and prior to 28 April 2014, the 2014 Review of Default Fund Terms (AM 2014/6) for the purpose of permitting the Financial Services Council Ltd to make submissions concerning its objection to the current constitution of the Expert Panel. The correspondence also included an ancillary request that the timetable for the filing of submissions contained in the Expert Panel’s Statement dated 11 March 2014 ([2014] FWCFB 1146) be extended until seven days after the objection is heard and determined.
[2] The President referred the correspondence to the Expert Panel for its consideration. The Expert Panel has decided to reject the requests set out in the correspondence, for the following reasons:
(i) It appears from the correspondence that the hearing that is sought would be one conducted by the Expert Panel, as currently constituted.
(ii) The power to constitute an Expert Panel is, under s.620(2) of the Fair Work Act 2009 (the Act), conferred on the President. Likewise, the power to reconstitute an Expert Panel when an FWC Member becomes unavailable is, under s.622(3) of the Act, conferred on the President. In those circumstances, it is apparent that the Expert Panel, as currently constituted, would have no power to make any decision with respect to its own constitution or re-constitution. No such power is identified in the correspondence.
(iii) Any proceeding before the Expert Panel as currently constituted would include the President and accordingly would involve the President reviewing his own prior decision. It would be inappropriate for the President to consider and determine submissions concerning the lawfulness of his own prior decision to reconstitute the Expert Panel.
(iv) The Expert Panel cannot conclusively determine any objection to the current constitution of the Expert Panel. A conclusive determination of this issue can only be made by a court of competent jurisdiction.
[3] To the extent that the correspondence, contrary to the understanding identified in paragraph [1], seeks a hearing concerning the Financial Services Council Ltd’s objection to the constitution of the Expert Panel before the President sitting alone, the President rejects that request. It would be inappropriate for the President to consider and determine submissions concerning the lawfulness of his own prior decision.
[4] To the extent that the Financial Services Council Ltd maintains the position that the President’s decision to re-constitute the Expert Panel did not comply with, or achieve compliance with, the relevant provisions of the Act, the most appropriate course would be an application for judicial review of that decision in the Federal Court of Australia. Judicial review has been the usual way in which parties have challenged decisions of the President of the Fair Work Commission or its predecessor tribunals concerning the constitution of benches. 1
[5] We note the further request in the correspondence for a “copy of the Direction which gives effect to the appointment of the President to the Expert Panel”. The President’s decision to reconstitute the Expert Panel under s.622(3) by placing himself on the Panel was made in a Statement issued on 17 April 2014 ([2014] FWC 2632). A copy of that Statement is accessible on the Commission’s website.
[6] The Directions issued on 11 March 2014 by the Panel determining the 2014 review of default fund terms have not changed throughout this process and are quite clear to all parties involved. All applications to the Commission to have a standard MySuper product included on the Default Superannuation List and applications to the Commission to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products must be lodged with the Commission by Monday, 28 April 2014.
PRESIDENT
1 See Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466; Re Australian Liquor, Hospitality and Miscellaneous Workers Union; Ex parte Australian Hotels Association (1993) 112 ALR 650
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