Statement re Application to disqualify

[2014] FWC 3343

[2014] FWC 3343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.285 - Annual wage review

(C2014/1)

MR TONY COLE, EXPERT PANEL MEMBER MELBOURNE, 20 MAY 2014

Application to disqualify - application dismissed.

[1] I am a member of the National Commission of Audit, which on 1 May 2014, released the Towards Responsible Government Report (the Report). Following the release of the Report the Australian Council of Trade Unions (ACTU) wrote to the Fair Work Commission (the Commission) in a letter dated 6 May 2014, requesting that I disqualify myself from the Expert Panel constituted to conduct the 2013-14 Annual Wage Review. The ACCER supported this request.

[2] In their correspondence the ACTU submitted that my authorship of the Report and its recommendations, in particular section 7.11 and recommendation 28, established a reasonable suspicion among fair-minded persons that I may not resolve the questions before me in the 2013-14 Annual Wage Review (AWR) with a fair and unprejudiced mind.

[3] I fully understand the ACTU's concern about the implications for the Annual Wage Review of recommendation 28 of the National Commission of Audit's report. Recommendation 28, if adopted, would effectively replace Annual Wage Reviews with a formula approach which would reduce the real level of the minimum wage year by year. It would also move the determination of minimum wages from an independent specialist body to the political level. Were I a party to that recommendation it would not be appropriate for me to continue as a panel member. 

[4] When the issue of minimum wages was raised in the Commission of Audit I declared my membership of the AWR Expert Panel and stood aside from the discussion and decision making on that issue. This was in accordance with the protocol for addressing potential conflicts of interest that may arise in the Commission's work. This protocol required members of the Commission of Audit to advise the Department of Finance and the Commission itself of any potential conflicts upon acceptance of the position and to declare any future potential conflicts that may arise as they arise. Conflicted members were also obliged to flag particular conflicts as they arose. The Audit Commission then decided whether the particular person could participate in the discussion or should excuse themselves.

[5] This protocol is very similar to arrangements covering private sector boards as well as general practice in the public sector. In fact the Auditor General has established virtually the same approach as best practice for public body audit committees.

[6] There was considerable debate in the hearings of the Senate Select Committee on the Commission of Audit concerning the possible public release of the Commissioners' listings of potential conflicts and of the occasions during the Commission's deliberations when interests had been declared and Commissioners had stood aside from discussion. The government decided they should not be released on the grounds that the information was originally requested with an assurance given that it would be kept confidential.

[7] I accept that the impartiality of the Commission is central to the provision of a fair hearing. The governing principle is that a member should be disqualified from hearing a matter if a fair minded observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question that the member is required to decide. Given that I did not participate in the Audit Commission’s discussion on this issue and took no part in the formulation or adoption of recommendation 28, I am not satisfied that the disqualification application has been made out.

EXPERT PANEL MEMBER

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