2014 Review of Default Fund Terms

[2014] FWC 2632 [Note: refer to the Federal Court decision dated 25 July 2014 [2014] FCAFC 92 for result of appeal.]

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, 17 APRIL 2014

Background

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.

Pursuant to my direction to Expert Panel Members Allen, Apted and Gibbs of 18 February 2014, they made written disclosures to me of any interests that could conflict with the proper performance of their functions in relation to matter AM2014/6.

In my Statement of 7 March 2014, having regard to these disclosures, I concluded that Expert Panel Members Allen and Gibbs had a ‘potential conflict’ within the meaning of s.640 of the Fair Work Act 2009 (Cth) (FW Act), but Expert Panel Member Apted had no such potential conflict.

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 and they were consequently unavailable to continue dealing with the matter for the purposes of s.622(1) of the Act.

Having formed the view that Expert Panel Member Harcourt had the knowledge or experience required under s.620(1A)(b) of the FW Act and having regard to his statement that he had no potential conflict, 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.

Further Reconstitution of the Expert Panel

In order to put beyond doubt that the quorum requirement for the Expert Panel in s.622(2)(a) of the FW Act is met, I will now join the Expert Panel pursuant to s.622(3) of the Act.

The quorum requirement being met, pursuant to s.622(2) of the FW Act the Expert Panel may continue to deal with matter AM2014/6 without its full complement of Expert Panel Members.

In my view this resolves any uncertainty that the Expert Panel is properly constituted.

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 Fair Work Commission, presided over by Justice Ross, undertook a review of the default fund terms of modern awards under the Fair Work Act 2009. The review was necessitated by the statutory requirement for a four-yearly assessment of these terms. The parties involved were the Fair Work Commission, which conducted the review, and the stakeholders affected by the terms of the modern awards, including employers and employees.

The legal issues before the Court included the proper constitution of the Expert Panel tasked with the review, the handling of potential conflicts of interest among the panel members, and the procedural steps required to ensure the quorum and proper functioning of the Panel. Specifically, the Court had to determine whether the Expert Panel was appropriately constituted under the provisions of the Fair Work Act, and whether the potential conflicts of interest identified among certain members necessitated their removal from the Panel.

The Court, after reviewing the disclosures and assessing the potential conflicts, concluded that two of the Expert Panel Members had potential conflicts of interest, thus they were disqualified from participating in the review. The President then reconstituted the Panel by including an additional member and himself to ensure the quorum was met. The Court held that this action was necessary to ensure the proper functioning and legal validity of the Panel's decisions.

The final orders of the Court were that the reconstituted Expert Panel, now including the additional member and the President, was properly constituted to carry out the review of the default fund terms. The Court's decision ensured the legal and procedural integrity of the review process, paving the way for a thorough and unbiased assessment of the modern awards' default fund terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established