2014 Review of Default Fund Terms

[2014] FWC 3840

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156A—4 yearly review of default fund terms

2014 Review of Default Fund Terms
(AM2014/6)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 10 JUNE 2014

Background

[1] On 6 January 2014 I constituted an Expert Panel in matter AM2014/6 for the purposes of the 4 yearly review of default fund terms of modern awards. The Panel comprised Senior Deputy President Acton, Senior Deputy President Drake, Commissioner Bull, Commissioner Johns and Expert Panel Members Allen, Apted and Gibbs.

[2] On 7 March 2014 I issued a direction pursuant to s.640(4) of the FW Act that Expert Panel Members Allen and Gibbs no longer deal with matter AM2014/6 due to ‘potential conflicts’ within the meaning of s.640 of the Fair Work Act 2009 (Cth) (FW Act). On 7 March 2014 I also issued a direction pursuant to s.622(3) of the Act that Expert Panel Member Harcourt form part of the Expert Panel.

[3] On 17 April 2014 I issued a Statement indicating that I would join the Expert Panel pursuant to s.622(3) of the FW Act.

[4] On 6 June 2014 the Federal Court in Financial Services Council Ltd v Industry Super Australia Pty Ltd and Anor NSD447/2014 by Order declared invalid my direction of 17 April 2014 that I would form part of the Expert Panel and declared that the Panel as currently purportedly reconstituted is not reconstituted as required under Subdivision B of Division 4 of Part 5-1 of the FW Act.

Consequences of the Federal Court Order

[5] In consequence of the Order of the Federal Court, the Expert Panel as currently purportedly reconstituted will not deal further with matter AM2014/6.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the 2014 Review of Default Fund Terms, the Expert Panel was constituted under the Fair Work Act 2009 to review the default fund terms of modern awards. The panel, initially consisting of several members, faced a challenge when two members were directed to withdraw due to potential conflicts of interest. Further, the President of the Fair Work Commission sought to join the panel, but this was subsequently declared invalid by the Federal Court, which ruled that the panel was not properly reconstituted under the Act. This decision halted the panel's ability to proceed with the review.

The central legal issue in this case revolved around the proper reconstitution of the Expert Panel as required by the Fair Work Act 2009. Specifically, the court had to determine whether the President's inclusion in the panel and the subsequent withdrawal of two members adhered to the statutory provisions outlined in the Act. This required a careful interpretation of the relevant sections of the Fair Work Act, including s.640 and s.622(3).

The Federal Court examined the statutory framework and found that the President's inclusion in the panel, as well as the withdrawal of the two members, did not comply with the necessary legal requirements. The Court held that the panel, as then constituted, was not validly formed under the Act, leading to the conclusion that the panel could not continue to deal with the review of the default fund terms. Consequently, the panel's proceedings were effectively terminated due to the invalid reconstitution.

The Federal Court's ruling resulted in the Expert Panel being unable to proceed with the review. The panel, as it stood, was deemed improperly constituted and thus could not perform its functions. The Court's order had immediate effect, preventing the panel from taking any further action in the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established