STATEMENT

Fair Work Act 2009
s.285—Annual wage review

Annual Wage Review 2019–20
(C2020/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
MR FERGUSON
MR WOODEN
MS LABINE-ROMAIN

MELBOURNE, 6 APRIL 2020

TIMETABLE VARIATION

1. Background

[1] A Statement published on 23 March 2020 varied the timetable for the Annual Wage Review 2019–20 (2019–20 Review) as follows:

Date	Event
27 March 2020 1	Closing date for lodging submissions
Easter Break: 10 April–13 April 2020
23 April 2020	Closing date for lodging reply submissions and any submissions relating to data published after 27 March 2020

[2] It was also noted that the post-Budget consultations initially scheduled for 18 and 19 May 2020 would not proceed.

[3] In taking into account the consequences of the COVID-19 pandemic, the March statement noted that further changes to the timetable would be necessary to provide parties with an opportunity to comment on a rapidly changing environment and relevant data as it emerges. The statement also outlined the proposal by Ai Group to defer any decision until after the release of the Australian Bureau of Statistics’ (ABS) National Accounts for the March Quarter 2020 on 3 June 2020. 2

[4] To settle the timetable as soon as practicable, parties were invited to file a short submission setting out their response to Ai Group’s proposal and other views that they had in relation to the timetable, by 4.00pm Wednesday 1 April 2020.

2. Submissions

[5] Submissions were received from:

• the Australian Government;

• the Australian Council of Trade Unions (ACTU);

• Australian Industry Group (Ai Group);

• Australian Chamber of Commerce and Industry (ACCI); and

• Master Grocers Australia (MGA)

[6] Consistent with its proposal, Ai Group supported the postponement for the lodgement of reply submissions and submitted that one day of final consultations be scheduled to allow parties to make short oral submissions and address any further questions from the Expert Panel. It is proposed that this take place in June, shortly after the lodgement of the proposed submissions of 8 June 2020. 3

[7] The Australian Government submitted that the Expert Panel ‘should utilise any available mechanisms that enhance its ability to consider all economic data and other information relevant to the impact of the coronavirus pandemic when making its decision.’ 4

[8] ACCI did not oppose the proposed timetable put forth by Ai Group, and also submitted that final consultations should still proceed. 5

[9] MGA submitted that ‘any decision relating to the Annual Wage Review decision be delayed until after the March Quarter 2020 National Accounts have been released, with an opportunity to file further submissions by 8 June 2020.’ 6

[10] The ACTU supported Ai Group’s proposal that the Panel take into account the March Quarter National Accounts Data and accepted that it is necessary for the Panel to inform ‘itself of the best data and analysis available about the impacts of the COVID-19 pandemic on employees, employers and the economy.’ 7

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCFB 1804
Decision Date: 6 APRIL 2020

CaseChat Overview and Summary

The Annual Wage Review 2019-20 was conducted by the Fair Work Commission under the Fair Work Act 2009. The review was necessitated by the COVID-19 pandemic, which significantly impacted the Australian economy and workforce. The Commission was required to determine a revised timetable for the review, taking into account the pandemic’s effects and the need for procedural fairness.

The legal issues before the Court involved balancing the statutory requirement to complete the review by 30 June 2020 with the need to consider emerging economic data and the impact of the pandemic on the economy. The Court had to decide on an appropriate timetable that allowed all interested parties to make submissions and participate in final consultations while ensuring procedural fairness.

The Court considered the submissions from various stakeholders, including the Australian Government, the Australian Council of Trade Unions, the Australian Industry Group, and others. The Court noted the consensus on the need to consider the March Quarter 2020 National Accounts data released by the Australian Bureau of Statistics on 3 June 2020. The Court also acknowledged the importance of providing a reasonable opportunity for parties to make submissions and participate in consultations.

Based on the submissions and the need to complete the review within the statutory timeframe, the Court revised the timetable. The new timetable extended the deadline for reply submissions, allowed for supplementary submissions, and scheduled final consultations on 10 June 2020. The Court did not decide on the operative date of the review at that stage but noted it would be determined later.

The Court's decision ensured that the review process remained fair and responsive to the rapidly changing economic environment caused by the pandemic, while also adhering to the statutory requirements.

Orders