Creation of two new Fair Work VPs comes under fire


Creation of two new Fair Work VPs comes under fire

The Federal Government is under pressure to reverse its decision to appoint two new vice presidents to the re-vamped Fair Work Commission.


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The Federal Government is under pressure to reverse its decision to appoint two new vice-presidents to the re-vamped Fair Work Commission (FWC).

Workplace Relations Minister Bill Shorten announced the new positions on 16 October when responding to the recommendations of the FWA Review. He also said legislation would provide additional powers to the tribunal president, as recommended by the review.

Both decisions have now been attacked by the Law Council, the Australian Mines and Metals Association (AMMA) and a minority report from Opposition members of a Senate committee.

Downgrade status
In its submission to the Senate Education, Employment and Workplace Relations Legislation Committee, the Law Council said the creation of the new positions would downgrade the status of the two existing vice presidents: Michael Lawler and Graeme Watson.

Lawler and Watson were appointed as deputy presidents under the Fair Work legislation but are designated as vice presidents and have that status on the tribunal.

In its submission on the matter the Law Council, says:
‘As a general principle, once a person has been appointed to sit on a court or independent tribunal with designated powers and privileges, any change that would have the effect of removing or reducing that particular person’s powers or privileges while not affecting the powers and privileges of other members of that tribunal, has a tendency to undermine the independence of the court or tribunal. That is so because such action can be portrayed as being done because the individual member is not in favour with the parliament or the executive.’
AMMA chief executive Steve Knott urged that the two new positions of vice president not be created.

‘It would be an unprecedented and extraordinary move to allow the government and the Fair Work Australia president to collectively sideline two existing VPs by appointing two additional VPs into new statutory positions,’ Knott said.

‘If the Australian Government is intent on creating two statutory VP positions under the Fair Work Act, with additional legislative powers over all the other Deputy Presidents, those positions must go to the two existing VPs to maintain the impartiality and independence of Fair Work Australia.’

‘IR tribunal members such as existing VPs Lawler and Watson leave behind private sector careers knowing their tenure is secure from political change and whims. This protection is guaranteed by the fact that their removal from office would require endorsement from both houses of Federal Parliament.’

‘While the Fair Work Amendment Bill 2012 doesn’t seek to remove the existing two VPs it does facilitate a reduced status by facilitating a demotion in the FWA hierarchy. This has never been countenanced in any real court and should be blocked by parliament.’

Not too late
‘It is not too late for Workplace Relations Minister Bill Shorten and the Labor Government to correct this overreach and maintain confidence in Australia’s workplace relations tribunal before this Bill passes to law.’

There were rumours soon after the new positions were announced that they would go to former Australian Council of Trade Unions secretary Jeff Lawrence and union industrial relations lawyer Josh Bornstein.

However, Department of Education, Employment and Workplace Relations deputy secretary told the Senate Committee that the positions would be publicly advertised and subject to merit-based selection processes.

The Law Council also criticised new powers for the (proposed) FWC president, which would allow him or her to take over matters allocated to individual tribunal members or full benches.

The Law Council said its industrial law committee considered the new power inappropriate.

Attack on independence
‘Should such a power be exercised it would have the potential to reduce the standing of the Tribunal, given the potential for such an action to be characterised or perceived as an attack on the independence and/or competence of the Full Bench,’ it said in its submission.

‘That it might occur as a consequence of, or following submissions made by, a party would tend to emphasise the potential for the action to be portrayed as one intended to achieve a result or procedure different from that which the Full Bench might have expected to determine or adopt.’
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