Bills Digest No. 115,
2016–17
PDF version [708KB]
Jaan Murphy and Andrew Cameron
Law and Bills Digest Section
19
June 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Repeal of
the four-yearly reviews of modern awards by the FWC
Current law
2012 review of the Fair Work Act
Changes proposed by the Productivity
Commission
What is an enterprise agreement?
How is an enterprise agreement made?
Figure 1: making an enterprise
agreement
Factors considered by the FWC when
approving an enterprise agreement
Handing alleged misconduct or
incapacity of FWC Members
Committee consideration
Senate Education and Employment
Legislation Committee
Additional comments by Opposition
Senators
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions—Schedule 1
Issues with the four-yearly review
model
Proposed replacement model
Model proposed by the Bill
Repeal of requirement to conduct
four-yearly reviews
Alterations to modern award powers of
the FWC
Powers of the Full Bench and single
members of the FWC to vary or revoke modern awards
Only Full Bench can revoke a modern
award
Variation of modern awards by a
single Member of the FWC
Key issues and provisions—Schedule 2
Key issues and provisions—Schedule 3
Background to incapacity and
misbehaviour of judicial officers and equivalent offices
Current process for terminating or
suspending a Member of the FWC
Gaps in current system for
terminating or suspending certain Members of the FWC
Amendments related to complaints
against FWC Members
Extending the JMIPC Act to FWC
Members
Key issues and provisions—Schedule 4
Incomplete 4-yearly reviews of modern
awards
Approving enterprise agreements
Retrospective extension of the JMIPC
Act to FWC Members
Date introduced: 1
March 2017
House: House of
Representatives
Portfolio: Employment
Commencement: Schedule
1 will commence on 1 January 2018. Schedules 2, 3 and 4 will commence the
day after the Bill receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
Purpose of
the Bill
The purpose of the Fair Work Amendment (Repeal of 4
Yearly Reviews and Other Measures) Bill 2017 (the Bill) is to amend the
Fair Work
Act 2009 (the FW Act) and the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (the
FW Transitional Act) to:
- repeal
the requirement for the Fair Work Commission (FWC) to conduct four-yearly
reviews of modern awards from the beginning of 1 January 2018
- allow
the FWC to overlook ‘minor procedural or technical errors’ when approving an
enterprise agreement, where those errors were not likely to have disadvantaged
employees, including errors related to the Notice of Employee Representational
Rights (NERR) requirements
- ensure
that the existing complaint-handling powers of the Minister for Employment and
the President of the FWC apply to FWC Members who formerly held office in the
Australian Industrial Relations Commission (AIRC) and
- apply,
in a modified form, the Judicial
Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (the
JMIPC Act) to FWC Members.[1]
Structure
of the Bill
The Bill’s measures are contained in four Schedules:
- Schedule
1 deals with the repeal of the four yearly reviews of modern awards by the FWC
- Schedule
2 deals the factors considered by the FWC when approving an enterprise
agreement
- Schedule
3 deals with the modified application of the JMIPC Act to FWC Members
and application of the FW Act to FWC Members who formerly held
office in the AIRC and
- Schedule
4 provides for application and transitional provisions in relation to the
amendments made by Schedules 1 to 3 of the Bill.
Background
As the Bill deals with three broad areas of reform, the
background to each is provided separately below.
Repeal of
the four-yearly reviews of modern awards by the FWC
Current law
Currently section 156 of the FW Act requires the
FWC to review all modern awards every four years. The reviews may result in the
FWC making new modern awards, or varying or revoking (cancelling) modern
awards.[2]
When reviewing or varying a modern award, section 134 of
the FW Act provides that the FWC must take into account the modern award
‘objective’. Relevantly, this includes ‘relative living standards’, the need to
provide additional remuneration for employees working on weekends and public
holidays, and the likely impact on productivity and employment costs.[3]
In relation to a four-yearly review of a modern award, the
FWC may only make a determination to vary a modern award’s minimum wage where
it is satisfied that the variation is justified by ‘work value’ reasons—that is
reasons related to the nature of the work, the skill and responsibility
attached to it and the conditions under which it is performed.[4]
Given the large number of modern awards, four-yearly
reviews of modern awards are often complex, protracted and controversial
processes involving large numbers of participants and submissions for various
interest groups, including employee organisations, industry groups and
employers.
2012 review
of the Fair Work Act
In relation to the four-yearly review of modern awards,
the Labor Government’s 2012 Fair Work Act Review noted:
On recommendations for amendment to the provisions relating
to award variations, the Panel notes the Government’s policy intention of
establishing a stable safety net, including by only providing for
four-yearly reviews and otherwise limited capacity for variation. Given
that the first four-yearly review of modern awards is still some time away and [Fair
Work Australia] FWA’s interim award review has yet to be finalised, the
Panel is unable to justify making recommendations that would upset arrangements
for general reviews of modern awards.[5]
(emphasis added)
In relation to ‘calls for increased ability to seek
variations outside of general reviews’ the Expert Panel stated ‘such a move
would be counter to the policy of maintaining a stable safety net’ and would be
‘likely to result in increased speculative claims to deal with short-term
concerns of both employers and employees’ and therefore did not recommend any amendments
in that area.[6]
Changes
proposed by the Productivity Commission
The Productivity Commission’s Report on Australia’s Workplace
Relations Framework (the PC Report) examined the role of modern awards
within Australia’s workplace relations framework. The Productivity Commission
noted that:
... awards are an Australian idiosyncrasy with some undesirable
inconsistencies and rigidities, but they are an important safety net and a
useful benchmark for many employers.[7]
The Productivity Commission recommended that the FW Act
be amended to:
- remove
the requirement for continued four yearly reviews of modern awards
(recommendation 8.1)
- add
the requirement that the wage regulator review and vary awards as necessary to
achieve the revised modern awards objective specified in recommendation 8.3,
namely that modern awards, together with the National Employment Standards,
provide a minimum safety net of terms and conditions, which promote the overall
wellbeing of the community, taking into account:
- the
needs of the employed
- the
need to increase employment
- the
needs of employers
- the
needs of consumers and
- the
need to ensure modern awards are easy to understand.[8]
The Government argues the Bill ensures that the framework
for the making, varying and revoking of modern awards outside of the four-yearly
reviews will continue to provide ‘a balanced, fair and sensible safety net of
terms and conditions of employment’.[9]
As the FW Act already provides that the FWC ‘must ensure that modern
awards, together with the National Employment Standards, provide a fair and
relevant minimum safety net of terms and conditions’.[10]
Schedule 1 of the Bill gives partial effect to the Productivity
Commission’s recommendation 8.1, because the Bill does not replace the current
modern awards objective in section 134 of the FW Act with the recommended
revised modern awards objective specified in recommendation 8.3 (as set out
above).
What is an
enterprise agreement?
An enterprise agreement is a collective agreement dealing
with certain permitted matter (such as wages) made between employees and an
employer made at the enterprise level. They are enforceable under the FW Act,
and set out terms and conditions of employment, as well as the rights and
obligations of the employees and the employer covered by the agreement.[11]
An enterprise agreement must meet a number of requirements
under the FW Act before it can be approved by the FWC.
How is an
enterprise agreement made?
The process for making enterprise agreements is set out in
Part 2-4 of the FW Act. The diagram below sets out this process in
simplified form.
Figure 1: making an enterprise agreement

Source: Fair Work Commission,
Benchbook:
enterprise agreements, Fair Work Commission website, 3 April
2017, p. 68.
Importantly, an enterprise agreement does not operate, and
has no legal force, until it is approved by the FWC.[12]
Factors
considered by the FWC when approving an enterprise agreement
Section 188 of the FW Act deals with when an
enterprise agreement (EA) has been genuinely agreed to, a prerequisite
for any EA being approved by the FWC.[13]
As noted in the figure above, one important step in the
process of making an enterprise agreement is the employer issuing a Notice of
Employee Representational Rights (NERR) within 14 days of the commencement of
bargaining.[14]
As the name suggests, a NERR notifies each employee of his or her bargaining
rights.[15]
The content of the NERR is prescribed by regulation.[16]
NERRs are intended to inform employees of their right to appoint a bargaining
representative to negotiate on their behalf during the making of an enterprise
agreement, and where an employee is a union member, to advise them that the
union will be their bargaining representative by default (unless the employee
appoints another representative).[17]
Importantly, the FWC and courts have strictly interpreted
certain procedural requirements imposed by the FW Act, especially in
regards to the issuing of a NERR.[18]
This had led to criticism that ‘form’ unduly dominates over the substance of
key steps in negotiating and ultimately, approving an EA.[19]
For example, the Productivity Commission noted one infamous case where an
employer:
... provided three pages — stapled together — to all of the
employees to be covered by a proposed enterprise agreement. Some bargaining
ensued, an agreement was struck and the agreement was lodged with the FWC.
However, by attaching the three documents together, the employer contravened
requirements about the form of notice to be given to employees. The FWC had no
real discretion in the matter, and was obliged by the Fair Work Act to
reject the agreement. So, absurdly, the employer had to recommence the
agreement process. There is a convincing variety of similar examples.[20]
As a result, the Productivity Commission recommended that
the FW Act be amended to:
- allow
the FWC wider discretion to overlook minor procedural or technical errors when
approving an agreement, as long as it is satisfied that the employees were not
likely to have been placed at a disadvantage because of an unmet procedural
requirement and
- extend
the scope of this discretion to include minor errors or defects relating to the
issuing or content of a notice of employee representational rights.[21]
Schedule 2 of the Bill gives effect to this recommendation.
Handing
alleged misconduct or incapacity of FWC Members
On 19 October 2015, Peter Heerey was appointed to inquire
into and report on complaints about FWC Vice President Michael Lawler.[22]
The review was to inquiry into and report on complaints about
Vice President Lawler, and related issues, including:
- the
processes of the FWC to investigate complaints and allegations made against
members of the FWC, including those appointed under previous workplace
relations legislation
- the
appropriateness of any process in the FWC to manage conflicts of interest and
- whether
there was a reasonable basis for both Houses of Parliament to consider
requesting the Governor-General to remove Vice President Lawler from the FWC on
the grounds of proved misbehaviour or incapacity.[23]
Relevantly to this Bill, the Inquiry report (the Heerey
Report) found:
- the
complaint investigation processes of the FWC are adequate, and are consistent
with those recently provided by statute for other comparable federal judicial
and quasi-judicial bodies and
- the
current arrangements in the FWC for managing conflicts of interest are
appropriate.[24]
However, Mr Heerey recommended that the provisions of the JMIPC
Act ‘should be extended to apply to termination proceedings against persons
who are not judges but hold office subject only to termination by the
Governor-General on addresses of both Houses of Parliament’.[25]
This recommendation was not made in response to identified deficiencies with
the current processes of the FW Act, but to create consistency between Chapter
III judges under the Australian Constitution and FWC Members in response
to the policy developments that had applied to the former since the
introduction of the JMIPC Act in 2012.
The amendments proposed by the Bill give effect to that
recommendation, but also deal with the issues identified by Mr Heerey regarding
sections 581A and 641A (and related provisions) of the FW Act.
Section 581A empowers the President of the FWC to deal
with a complaint about the performance of another FWC Member, and ultimately
allows for each House of the Parliament to consider whether to present to the
Governor-General an address praying for the termination of the appointment of
the FWC Member. Section 641A provides the same power to the Minister. Mr Heerey
identified that sections 581A and 641A probably did not apply to FWC Members
who were appointed to the AIRC pursuant to the Workplace Relations Act 1996
(like Vice President Lawler), although they were subject to preserved
provisions that essentially provided both the President and the Minister (when
read together with sections 61 and 64 of the Constitution)
with the same powers.[26]
As of 2 December 2016 there were 12 serving FWC Members who were appointed
under the Workplace Relations Act.[27]
Mr Heerey recommended:
... because of the uncertainty surrounding the applicability of
sections 581A and 641A to former AIRC Members, there would be some utility in
amending the present legislation to ensure (so far as is constitutionally
possible) that these provisions apply to all Members of the FWC, irrespective
of when they were appointed.[28]
The Bill gives effect to that recommendation.
Committee
consideration
Senate
Education and Employment Legislation Committee
The Bill was referred to the Senate Education and
Employment Legislation Committee for inquiry and report by 22 May 2017. Further
details of the inquiry and the Committee’s report are available on the inquiry
homepage.
The Committee received 14 submissions, primarily from industry
bodies and unions.[29]
The Australian Chamber of Commerce and Industry made concise submissions
outlining its support for the Bill, while the Australian Council of Trade
Unions (ACTU) supported only the provisions in Schedule 3 of the Bill, which relate
to the investigation of alleged misconduct by FWC Members. The ACTU’s
opposition to the repeal of the four yearly reviews was based on concerns
regarding the transitional provisions, as well as opposition to the default
requirement for variations to modern awards to be made by the Full Bench of the
FWC only. However, the ACTU supports the repeal of the four yearly reviews in
principle.[30]
The FWC also made submissions to the Committee and
primarily addressed the proposed discretion to be granted to the FWC to approve
enterprise agreements where there have been minor procedural or technical
errors in complying with procedural requirements of the FW Act. The FWC
identified that Schedule 2 would not apply retrospectively to applications made
before its commencement. The FWC proposed that significant delay, inconvenience
and expense could be avoided if the Bill were amended to apply the Schedule 2
items retrospectively to applications made prior to its commencement.[31]
The Queensland Law Society (QLS) made brief submissions in
relation to proposed section 641B identifying several concerns with the
approach taken by the Bill in modifying the JMIPC Act to apply to FWC
Members. It recommended that instead a separate Bill be introduced to amend the
JMIPC Act to extend its application to quasi-judicial officers.[32]
On 22 May 2017 the Committee published its report on the
Bill.[33]
The Committee recommended that the Bill be passed, subject to amendments to the
Bill to ‘provide for the new approval discretion to apply to applications made
prior to the commencement of Schedule 2’.[34]
This is a reference to proposed item 2 of Schedule 2 of the Bill that expands
the definition of ‘genuinely agreed’ under the FW Act to include cases
where there have been ‘minor procedural or technical errors’ in complying with
the FW Act’s procedural requirements for the approval of enterprise
agreements. The amendment recommended by the Committee was sought by the Fair
Work Commission in its submission to the Committee.[35]
Additional
comments by Opposition Senators
Whilst ‘expressing in-principle support for improvements to
the enterprise bargaining process’ proposed by the Bill, the Opposition
Senators raised three concerns about the Bill.
First, it was argued that whilst the purpose of item
26(1) of Schedule 4 of the Bill (a transitional provision) is to allow
incomplete four yearly reviews ‘to be completed if they are still on foot at
the time the abolition comes into effect’, the provision appears only to apply
to the ‘award stage’ of such reviews and not the ‘common issues’ stage.[36]
Second, the Opposition Senators noted:
... the requirement for a Full Bench of the Fair Work
Commission to be constituted to make, vary or revoke a modern award is
unnecessarily cumbersome. Given the government's enthusiasm for reducing the
burden on resources of the FWC and bargaining parties, this provision should be
amended so that only a single member is required.[37]
Third, the Opposition Senators noted that the use of the
term ‘disadvantaged’ in the provision allowing the FWC to disregard minor
technical or procedural issues when approving enterprise agreements does not
reflect the ‘intent of the procedural requirements, which is to ensure the
enterprise agreement is genuinely agreed to’.[38]
As a result, the Opposition Senators recommended that the
Senate amend the Bill to address the three issues discussed above.[39]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of
Bills considered the Bill and noted that the JMIPC Act establishes a
framework for the conduct of investigations by a Parliamentary Commission, with
powers to hold hearings and take evidence on oath, require the production of
documents and issue search warrants.[40]
It noted that proposed section 641B, at item 1
of Schedule 3 to the Bill, would apply the JMIPC Act to FWC
Members in a modified form to allow a Parliamentary Commission to be
established by the Houses of Parliament to investigate and report on alleged
misbehaviour or incapacity of a FWC Member. The application of the JMIPC Act
to FWC Members follows Peter Heerey’s recommendation in the Heerey Report for
the provisions of the JMIPC Act to ‘be extended to apply to termination
proceedings against persons who are not judges but hold office subject only to
termination by the Governor-General on addresses of both Houses of Parliament’.[41]
Practically, section 641B introduces a third mechanism for the investigation
and handling of alleged misbehaviour or incapacity of FWC Members (the other
mechanisms being the FWC President’s powers under section 581A and the
Minister’s powers under section 641A).
The Committee noted that it had raised a number of concerns
in relation to the Judicial
Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (JMIPC
Bill) when it was before the Parliament.[42]
The Committee noted that as the Bill ‘seeks to expand the ambit of the JMIPC
Act to include FWC Members’, the Committee referred to its previous
comments about the JMIPC Bill in relation to:
- the
power of a Commission to issue search warrants
- balancing
privacy and reputational interests of persons subject to investigation by a
Parliamentary Commission
- the
reversal of the evidential burden of proof where a person wishes to use a
'reasonable excuse' defence to offences relating to failure of a witness to
appear or failure of a witness to produce a document or thing and
- the
abrogation of the privilege against self-incrimination.[43]
The Committee concluded that whilst the provisions in
Schedule 3 ‘may be considered to trespass unduly on personal rights and
liberties’, it left consideration of ‘the appropriateness of expanding the
ambit of the JMIPC Act to include FWC Members’ to the Senate as a
whole.[44]
Policy
position of non-government parties/independents
The Opposition appears to support the Bill in general
terms, but recommended three amendments to the Bill.[45]
As the Greens Senators on the Senate Education and Employment Legislation
Committee inquiry into the Bill did not issue a dissenting report or make
additional comments, it would appear that the Greens support the Bill, subject
to the recommendations made by the Committee.
At the time of writing, the policy position of other non-government
Members and Senators was not known.
Position of
major interest groups
The Government advises that in November 2016 the
Australian Chamber of Commerce and Industry (ACCI), the Australian Industry
Group (AIG) and the Australian Council of Trade Unions (ACTU) jointly wrote to
the Minister for Employment, asking the government to abolish the four-yearly reviews
of modern awards.[46]
The Government states that this suggests ‘there is broad support for reforms to
repeal four-yearly reviews’.[47]
In their submissions to the Senate Education and
Employment Legislation Committee inquiry into the Bill, the ACCI and AIG both expressed
general support for the Bill, although the ACCI suggested various technical
amendments.[48]
The ACTU expressed support for Schedules 1 and 3 of the Bill (whilst suggesting
various technical amendments) but opposed Schedule 2 of the Bill on the basis
that ‘the provisions run counter to the objective that bargaining is inclusive,
fair and well informed’.[49]
Financial
implications
The Explanatory Memorandum advises that the financial
impact of the Bill to government is nil.[50]
However, the Government has stated:
Employee groups, employer groups and the Fair Work Commission
spend an enormous amount of time and money in undertaking these reviews. Their
abolition will save employers and unions about $87 million over the next 10 years.
This amount represents a significant regulatory burden.[51]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[52]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[53]
Key issues
and provisions—Schedule 1
As noted above, currently Division 4 of Part 2-3 of the FW
Act requires the FWC to review all modern awards every four years, and provides
that the FWC can only vary modern award minimum wages for ‘work value’ reasons.
Issues with
the four-yearly review model
The Productivity Commission noted that in practice the ‘current
four yearly review appears to be an expensive exercise requiring extensive
investment from interested parties’[54]
due in part to the fact that ‘the FWC is required to review every clause in every
award’.[55]
Further, the Productivity Commission noted:
... due to the breadth of the issues before the FWC, the
current review is likely to take at least two years to be completed. After
this, the system should remain relatively ‘stable’ for two years before the
next review is due to commence.[56]
Proposed
replacement model
The Productivity Commission recommended that instead of four-yearly
reviews of modern awards, the FW Act should be amended to use a more
targeted approach to reviewing awards, with efforts focused on aspects of
awards that are the source of greatest problems.[57]
In essence the Productivity Commission suggested that the four-yearly award
reviews be replaced with a process for reviewing modern awards that can be
initiated by affected parties or by the FWC itself.
Model
proposed by the Bill
Because of the substantial demands placed on parties by
the system of four-yearly reviews, the Government argues that the current four-yearly
award review process ‘does not meet the Act’s objective to create a simple,
easy to understand, sustainable award system’.[58]
Accordingly, the Bill would remove the four-yearly reviews of modern awards and
amend the FW Act to allow affected parties to apply to vary a modern
award on a case by case basis. This will allow the FWC to not only focus
efforts on aspects of awards that are the source of the greatest problems (as
identified by the parties bringing such applications), but it will also allow
the FWC to conduct its own reviews where it considers it appropriate to do so.
Repeal of
requirement to conduct four-yearly reviews
Item 8 of Schedule 1 of the Bill will repeal
Division 4 of Part 2-3 of the FW Act and therefore remove the
requirement for the FWC to conduct four-yearly reviews of modern awards. Items
1–7 of Schedule 1 of the Bill make consequential amendments to reflect the
repeal of the requirement to conduct four-yearly reviews.
Alterations
to modern award powers of the FWC
Division 5 of Part 2-3 of the FW Act deals with how
the FWC can exercise its powers in relation to modern awards outside of the four-yearly
review process. Currently section 157 of the FW Act allows only a Full
Bench of the FWC to make modern awards outside of the four-yearly review
process (a single Member can vary awards outside of the four-yearly review
process).
Proposed subsection 157(2A) inserts an identical
definition of ‘work value reasons’ to that used in current subsection 156(4)
(which will be repealed by item 8). Read with existing subsection 157(2)
(as amended by item 12 of Schedule 1 to the Bill), this amendment
will ensure that variations to the minimum wages paid under modern awards can
only occur for ‘work value’ reasons, namely ‘reasons justifying the amount that
employees should be paid for doing a particular kind of work’ related to:
- the
nature of the work
- the
level of skill or responsibility involved in doing the work or
- the
conditions under which the work is done.[59]
Powers of
the Full Bench and single members of the FWC to vary or revoke modern awards
As noted above, currently only a Full Bench of the FWC is
able to make a modern award. In contrast, a single member of the FWC may vary
or revoke a modern award outside of the four-yearly review process.[60]
Only Full
Bench can revoke a modern award
Proposed subsection 616(3B), at item 18 of
Schedule 1, provides a default rule that any determination to revoke a modern
award must be made by a Full Bench. This is a change from the existing
framework under which a single FWC Member could revoke a modern award.[61]
Variation
of modern awards by a single Member of the FWC
Proposed paragraphs 582(4)(ab) and (e), at items
15 and 16 of Schedule 1, along with proposed subsections 616(3C)
and (3D) at item 18 of Schedule 1, will allow the President of
the FWC to direct a single FWC Member to conduct a variation matter for a
modern award in various circumstances, as discussed below.
Proposed subsection 616(3C) provides that by default,
a determination to vary a modern award must be made by a Full Bench. This is a
change from the existing framework, under which a single FWC Member can vary a
modern award outside of the four-yearly review process. The Government argues:
In the absence of the 4 yearly review mechanism, where
reviews were conducted by a Full Bench, it is appropriate for a Full Bench to
consider such matters before making any determinations to vary modern awards.[62]
However, proposed subsection 616(3D) will allow the
President of the FWC to direct a single FWC Member to conduct a variation
matter for a modern award when it relates to the exercise of a power under:
- section
159 (variation to update or omit name of employer, organisation or outworker
entity)
- section
160 (variation to remove ambiguity, uncertainty or correct error) or
- section
161 (variation on referral by Australian Human Rights Commission).
The Government notes that the above reflects that ‘some
modern award variations may relate to routine matters’, and hence ‘it would be
appropriate for a single FWC Member to perform that function’.[63]
Proposed paragraph 616(3D)(b) will also allow the
President to direct a single FWC Member to conduct a variation under section
157 where the President considers it appropriate to do so in relation to:
- a
single award or
- two
or more awards relating to the same industry or occupation.
The Government notes that an example of when proposed
paragraph 616(3D)(b) might be used is when an application is ‘made with the
support of all stakeholders to repeal redundant references from a single modern
award’ but also notes:
Where applications to vary modern awards may relate to more
significant or contentious matters, or may potentially present a ‘test case’
that could emerge as a common issue across awards, the default position for
Full Bench consideration will prevail.[64]
The Government also notes that appeal and review rights to
the Full Bench from single Member decisions to vary a modern award will
continue to be available.[65]
Items 10, 12, 14, and 17 are consequential
amendments reflecting the above proposed changes.
Key issues
and provisions—Schedule 2
Section 188 of the FW Act sets out a list of
matters for the FWC to consider when determining whether an EA has been
genuinely agreed to by the employees covered by the agreement. An EA must have
been genuinely agreed to before the FWC can approve it.[66]
As noted above, the FWC and courts have strictly
interpreted certain procedural requirements imposed by the FW Act,
especially in regards to the issuing of a NERR, that must be considered under
section 188.[67]
This had led to criticism that ‘form’ unduly dominates over the substance of
key steps in negotiating and ultimately, approving an EA.[68]
Proposed subsection 188(2), at item 2 of
Schedule 2, provides that an enterprise agreement will also have been genuinely
agreed to if the FWC is satisfied that the agreement would have been genuinely
agreed to but for any minor procedural or technical errors made in relation to:
- the
requirements referred to in paragraph 188(1)(a) or (b), namely:
- the
access period during which employees are provided with a copy of the proposed
agreement for consideration before voting
- notification
of the time, place and method of the vote for the proposed EA and
- ensuring
that the terms of the proposed EA and the effect of those terms are explained
to relevant employees in an appropriate manner (taking into account the
particular circumstances and needs of the relevant employees)
- the
requirement that employees are not requested to approve the proposed EA until
21 days after the last NERR was given
- the
agreement was made in accordance to relevant procedures for the type of
agreement (single or multi‑enterprise non-greenfields agreement) or
- the
requirements related to the NERR under sections 173 and 174.
However, even where the FWC is satisfied that the
agreement would have been genuinely agreed to but for any of the minor
procedural or technical errors noted above, proposed paragraph 188(2)(b)
provides that the FWC must also be satisfied that the employees covered
by the proposed EA ‘were not likely to have been disadvantaged by those
errors’.
The effect of proposed subsection 188(2) is that an
enterprise agreement will have been genuinely agreed to (and therefore able to
be approved by the FWC) despite any minor procedural or technical error if the
employees were not likely to have been disadvantaged by those errors. This will
prevent the types of cases identified by the Productivity Commission as being
‘absurd’ from occurring in the future.[69]
Key issues
and provisions—Schedule 3
Schedule 3 responds to issues identified in how incapacity
and misbehaviour of FWC Members is dealt with under the FW Act
identified by Peter Heerey in the Heerey Report.[70]
Background
to incapacity and misbehaviour of judicial officers and equivalent offices
Currently sections 641 and 642 of the FW Act allow
for the termination (section 641) and suspension (section 642) of Members
of the FWC by the Governor-General on the grounds of ‘proved misbehaviour’ or
being ‘unable to perform the duties of his or her office because of physical or
mental incapacity’. As such, they reflect the wording of section 72 of the Constitution
(which deals with, amongst other things, the removal of judicial officers).
Current
process for terminating or suspending a Member of the FWC
Section 581 of the FW Act provides that the
President is responsible for ensuring that the FWC performs its functions and
exercises its powers in a manner that is efficient and adequately serves the
needs of employers and employees throughout Australia.
In turn, section 581A empowers the President to deal with
complaints about the performance of another FWC Member, and to take any
measures that the President believes are reasonably necessary to maintain
public confidence in the FWC, including (but not limited to) temporarily
restricting the duties of the FWC Member. Importantly, a complaint will only
trigger section 581A if it about the performance by a FWC Member of his
or her duties (performance being decisions or conduct in relation to cases,
although it can also extend to non‑performance of duties).[71]
The President must refer a complaint about a FWC Member to
the Minister if they are satisfied:
- one
or more of the circumstances that gave rise to the complaint have been
substantiated and
- each
House of the Parliament should consider whether to present to the
Governor-General an address praying for the termination of the appointment of
the FWC Member.[72]
Subsection 581A(5) provides that the Minister must then
‘consider whether each House of the Parliament should consider the matter’,
with section 641A providing the necessary powers to the Minister to ‘handle’
the complaint for the purpose of:
- considering
whether the Houses of Parliament should consider whether to present to the
Governor-General an address praying for the termination of the appointment of
the FWC Member and
- considering
whether to advise the Governor-General to suspend the FWC Member.[73]
Section 641 then provides that the Governor-General may
terminate the appointment of an FWC Member if an address praying for the
termination is presented by each House of the Parliament on one the following
grounds:
- proved
misbehaviour or
- the
Member being unable to perform the duties of his or her office because of
physical or mental incapacity.
Section 642 allows the Governor-General to suspend the
appointment of an FWC Member (other than the President) on the advice of the
Minister.[74]
Suspension can only occur (subject to the process outlined below) on the basis
of one the following grounds:
- misbehaviour
or
- the
Member being unable to perform the duties of his or her office because of
physical or mental incapacity.
As such, the process leading to the suspension or
termination of a FWC Member (other than the President) is as follows:
- the
Minister makes a recommendation to Governor-General to suspend a FWC Member
under paragraph 641A(b) or the FW Act
- the
Governor-General may suspend the FWC Member at this time, on the basis
of the advice provided
- if
the Governor-General does suspend the FWC Member, the Minister must, within seven
sitting days of suspension, table a statement identifying the Member and setting
out grounds for suspension in each House of Parliament
- if
both Houses resolve that the appointment of the FWC Member should be terminated,
then the Governor-General must terminate the appointment of the FWC
Member and
- if
one of the Houses of Parliament does not pass a resolution to terminate within
15 sittings days, the suspension of the FWC member ends.[75]
This means that both the House of Representatives and the
Senate must agree in order for the appointment of a FWC Member to be
terminated. If one House disagrees or fails to pass the resolution calling for
the termination of the FWC Member, subsection 642(4) provides that the
suspension terminates.
Note that there is no requirement to suspend an FWC member
before termination. The Minister may decide to proceed directly to termination
under section 641 of the FW Act, the difference being that the
Governor-General does not have discretion to refuse the resolution of the Parliament
calling for the appointment of a suspended FWC member to be terminated.
Gaps in
current system for terminating or suspending certain Members of the FWC
The Heerey Report identified gaps in the current system
for terminating or suspending certain Members of the FWC, specifically Members
appointed to the AIRC under the Workplace Relations Act.[76]
Mr Heerey noted:
Section 581A of the Fair Work Act probably does not
apply to FWC Members like Vice President Lawler who had been appointed to the
AIRC under the Workplace Relations Act. While there is some doubt about
this matter, the better view is that s 581A cannot properly be viewed as a mere
supplementary or machinery provision which can sit together with the preserved
terms and conditions of former AIRC Members. As such, it would be unsafe for
the President to utilise powers under the section against a former AIRC Member unless
the Fair Work Act were amended to make the position clear.[77]
(emphasis added)
After examining the options for dealing with complaints
about FWC Members appointed under previous legislation, Mr Heerey concluded that
although FWC Members appointed under the Workplace Relations Act have
‘the rank and status of a Federal Court judge’ such persons are not ‘a Chapter
III judge’ and hence the JMIPC Act could not (in its current form) apply
to investigations involving them. Nonetheless:
... there would seem to be logic in extending the provisions of
the Judicial Misbehaviour and Incapacity Act to cover termination
proceedings against persons like Vice President Lawler who are not judges but
hold office on Act of Settlement terms. Further, because of the uncertainty
surrounding the applicability of sections 581A and 641A to former AIRC Members,
there would be some utility in amending the present legislation to ensure (so far
as is constitutionally possible) that these provisions apply to all Members of
the FWC, irrespective of when they were appointed.[78]
The amendments proposed in Schedule 3 of the Bill give
effect to the two issues identified above, namely:
- doubt
about the applicability of sections 581A, 641, 641A and 642 of the FW Act
to FWC Members appointed under the Workplace Relations Act and
- the
inapplicability of the JMIPC Act (in its current form) to investigations
of persons ‘who are not judges but hold office on Act of Settlement terms’,
including FWC Members.
Amendments related
to complaints against FWC Members
Item 2 of Schedule 3 to the Bill inserts proposed
clause 6A into Schedule 18 to the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (the FW
Transitional Act).
Proposed clause 6A will ensure that the powers of
the FWC President and the Minister under sections 581A and 641A of the Act
(described above) will apply in relation to complaints made about an FWC Member
who was appointed to the AIRC under the Workplace Relations Act 1996.
Currently sections 82 and 86 of the Workplace Relations
Act 1996 (preserved by clause 2 of Schedule 18 of the FW Transitional
Act in relation to AIRC Members who transferred to the FWC) provide for the
‘removal from office’ of such FWC Members on the grounds of proved misbehaviour
or incapacity.[79]
The Heerey Report raised doubts about the powers of Minister and
President in relation to Members of the FWC appointed to the AIRC under the Workplace
Relations Act, based on the apparent inability of the preserved terms under
the Workplace Relations Act to ‘sit together’ with the corresponding FW
Act provisions (namely, sections 581A and 641A).[80]
Proposed clause 6A of Schedule 18 of the FW
Transitional Act will apply sections 581A and 641A of the FW Act as
if they were amended to refer to preserved provisions of the Workplace
Relations Act that govern the removal from office of a Presidential Member
(section 82) or a Commissioner (section 86) who was an AIRC Member who
transferred to the FWC. This ensures that the terms and conditions of
appointment for and other arrangements pertaining to former AIRC Members
(including termination) are dealt with together under the new framework.[81]
Extending
the JMIPC Act to FWC Members
The JMIPC Act only applies to Chapter III judges.
It provides for the appointment of ad hoc commissions to investigate and report
to Parliament on the alleged misbehaviour or incapacity of a ‘Commonwealth
judicial officer’ so that Parliament may be ‘well informed to consider’ whether
to pray for removal of the officer under section 72(ii) of the Constitution.[82]
The JMIPC Act enables the Parliament to establish a
Commission of inquiry, comprised of members nominated by the Prime Minister and
appointed by both Houses of Parliament.[83]
Whilst Commissions appointed under the JMIPC Act are given various
coercive investigative powers,[84]
section 20 of the JMIPC Act contains detailed natural justice
provisions. However, as noted in the Explanatory Memorandum, a Commission
constituted under the JMIPC Act:
... does not determine whether facts are proved or make
recommendations to the Parliament about the removal of a judge. A Commission
only considers the threshold question of whether there is evidence of conduct
by a judicial officer that may be capable of being regarded as misbehaviour or
incapacity, and reports on these matters to the Parliament. It is for the
Houses of Parliament to determine whether they regard particular conduct as
proved misbehaviour or incapacity.[85]
(emphasis added)
As noted by Mr Heerey, the definition of ‘Commonwealth
judicial officer’ used in the JMIPC Act ‘in effect is confined to judges
appointed under Chapter III of the Constitution’.[86]
Mr Heerey noted that although the Workplace Relations Act provided
Members of the AIRC ‘the rank and status of a Federal Court judge’, such
persons are ‘not a Chapter III judge’ and the JMPIC Act cannot apply to
investigations of such persons.[87]
Nonetheless Mr Heerey formed the view that there was ‘some
logic’ in extending the JMIPC Act to cover persons ‘who are not judges
but hold office on Act of Settlement terms’.[88]
The proposed amendments would align the preparatory
procedures for removal under section 641 of the FW Act more closely
with those in the JMIPC Act.
Proposed section 641B of the FW Act, at item
1 of Schedule 3 to the Bill, would apply a modified version of the JMIPC
Act to FWC Members, regardless of when they were appointed to the FWC. Paragraphs
56 to 59 of the Explanatory Memorandum contain a detailed explanation of how
the JMIPC Act will be modified to apply to FWC Members. In summary,
however, the effect of proposed section 641B will be that the Parliament
can establish a Commission to investigate and report on alleged misbehaviour or
incapacity of an FWC Member, with a view to considering whether to request the
Governor-General to either:
- remove
a FWC Member appointed under the Workplace Relations Act or
- terminate
the appointment a FWC Member appointed under the FW Act.
The amendments are consistent with the recommendations of
the Heerey Report that the FW Act should adopt (in modified form)
the procedures under the JMIPC Act. Consequently, the interpretation of
terms and concepts in the FW Act that are (or are proposed to be) shared
with section 72(ii) of the Constitution and the JMIPC Act (such
as ‘proved misbehaviour’ and ‘incapacity’) can be informed by existing constitutional
jurisprudence and jurisprudence on the interpretation of the JMIPC Act. However,
this jurisprudence will only be of persuasive value only, since the
constitutional and JMIPC Act provisions are not of direct application.[89]
In its submission to the Senate Committee’s inquiry into
the Bill the Queensland Law Society (QLS) expressed concern with proposed
section 641B and the approach of applying modified provisions of the JMIPC
Act to FWC Members. The QLS stated that the approach:
- arguably makes the precise legal position difficult to identify as it
requires reference to two Acts in order to determine the law;
- means that when subordinate legislation is proposed, it will be
necessary for Parliamentary drafters to refer to both the JMIPC Act and
this legislation to ensure that any subordinate legislation is appropriate for
both Acts and considers all issues; and
- generally complicates the statute book.[90]
The QLS also stated that the approach appeared to increase
the risk of unintended consequences such as inconsistent interpretations of the
two pieces of legislation. Despite the criticism the QLS did not express
opposition to the reform generally, and suggested that a separate amendment to
the JMIPC Act to apply it to FWC Members would be appropriate to avoid
the problems it had identified.
Key issues
and provisions—Schedule 4
Schedule 4 provides for application and transitional
provisions in relation to the amendments made by Schedules 1 to 3 of the Bill.
Incomplete
4-yearly reviews of modern awards
Item 1 of Schedule 4 inserts proposed Part 5
into Schedule 1 of the FW Act, consisting of proposed clauses 25 to 29.
Proposed clause 26 provides that if the FWC has active four-yearly
review matters that have commenced but have not yet been concluded when Schedule
1 to the Bill commences (1 January 2018), current Division 4 of Part 2-3 of the
FW Act (which deals with four-yearly reviews) and necessary related provisions
will continue to apply in relation to those matters. This will ensure that
reviews that are on foot when the amendments commence are able to be completed.
Approving
enterprise agreements
Proposed clause 28 of Schedule 1 to the FW Act
provides that proposed subsection 188(2) (at item 2 of Schedule 2 to the
Bill), which avoids minor procedural or technical errors in EA processes
automatically resulting in the rejection of the EA, will apply to applications
for approval of an EA that are made to the FWC after the commencement of
Schedule 2 to the Bill. This means that minor errors occurring before
commencement that relate to an EA that is submitted for approval after
commencement can benefit from the more relaxed approach provided in the Bill.
Retrospective
extension of the JMIPC Act to FWC Members
Proposed clause 29 of Schedule 1 to the FW Act
provides that proposed section 641B (at item 1 of Schedule 3
to the Bill, which extends a modified version of the JMIPC Act to all
FWC Members) will apply in relation to alleged misbehaviour or incapacity of a
FWC Member that occurred before or after the commencement of Schedule 3. This
means that a FWC Member may be subject to scrutiny by a commission appointed by
the Houses of Parliament in relation to the FWC Member’s conduct at a time when
they were not aware that they could be subject to scrutiny in this way. (FWC
members would, however, have been aware that their conduct could be scrutinised
by the President, Minister and Houses of Parliament under the current
provisions.)
No justification is given in the Explanatory Memorandum
for the retrospective application of proposed section 641B.
Although laws that retrospectively alter the rights of individuals are not
necessarily unjust, and the Parliament undoubtedly has the power to make laws
with retrospective application, justification for such measures is usually
explicitly provided.
[1]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017, p. i.
[2]. Fair Work Act 2009,
subsections 156(2).
[3]. Ibid.,
subsection 134(1).
[4]. Ibid.,
subsections 156(3)–(4).
[5]. RC
McCallum, Towards
more productive and equitable workplaces: an evaluation of the Fair Work
legislation, (Fair Work Act review), Department of Education,
Employment and Workplace Relations (DEEWR), Canberra, 15 June 2012, p. 112.
[6]. Ibid.
[7]. Productivity
Commission (PC), Workplace
relations framework, Inquiry report, vol. 1, 76, PC, Canberra, 30
November 2015, p. 3.
[8]. Ibid.,
p. 53 (recommendations 8.1 and 8.3).
[9]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017, p. i.
[10]. Fair
Work Act 2009, subsection 134(1).
[11]. Fair
Work Commission, Benchbook:
enterprise agreements, Fair Work Commission website, 3 April
2017, pp. 22, 26-36.
[12]. FW
Act, section 54.
[13]. Ibid.,
subsection 186(1).
[14]. Ibid.,
section 173.
[15]. PC,
Workplace
relations framework, Inquiry report, 1(76), op. cit., p. 652.
[16]. FW
Act, section 174.
[17]. See
for example: Fair Work Commission, Notice
of employee representational rights (from 3 April 2017), Fair Work
Commission website, p. 1: ‘If you are a member of a union that is entitled to
represent your industrial interests in relation to the work to be performed
under the agreement, your union will be your bargaining representative for the
agreement unless you appoint another person as your representative or you
revoke the union’s status as your representative.’
[18]. See
for example: Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and
Energy Union (2014) 242 IR 210, [2014]
FWCFB 2042; Serco Australia Pty Limited v United Voice and the Union of
Christmas Island Workers [2015] FWCFB
5618; Cement Australia Pty Limited [2011] FWA 6917
and Re Transit (NSW) Services Pty Ltd T/A Transit Systems [2016] FWC
2742.
[19]. PC,
Workplace
relations framework, op. cit., pp. 34–35, 663–667.
[20]. Ibid.,
p. 34.
[21]. Ibid.,
p. 667 (recommendation 20.1).
[22]. M
Cash (Minister for Employment, Women and Minister Assisting the Prime Minister
for the Public Service), Appointment
of the Hon Peter Heerey AM QC to undertake independent review, media
release, 19 October 2015.
[23]. P
Heerey, Report
of inquiry into complaints about the Honourable Vice President Michael Lawler
of the Fair Work Commission and related matters, (Heerey Report),
February 2016, pp. 1–2.
[24]. Heerey
Report, op. cit., pp. 10–12.
[25]. Ibid.,
pp. 10–11.
[26]. Ibid.,
pp. 47–48; the Workplace Relations Act 1996 became the Fair Work
(Registered Organisations) Act 2009.
[27]. This
figure has been calculated by comparing the list of AIRC members as at 15
October 2009 and published on the AIRC website and the list of FWC members as
at 26 May 2017 and published on the FWC website.
[28]. Heerey
Report, op. cit., p. 51.
[29]. Submissions
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Repeal of 4 yearly reviews and other measures) Bill 2017.
[30]. Australian
Council of Trade Unions, Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill
2017, 7 April 2017, pp. 4–5.
[31]. Fair
Work Commission, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Repeal of 4 yearly reviews and other measures) Bill 2017,
12 May 2017.
[32]. Queensland
Law Society, Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill
2017, 20 April 2017, p. 2.
[33]. Senate
Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Repeal of 4 yearly reviews and other measures)
Bill 2017, The Senate, Canberra, May 2017.
[34]. Ibid.,
p. vii.
[35]. Fair
Work Commission, op. cit.
[36]. Labor
Senators, ‘Labor Senators' Additional Comments’, additional comments, Senate
Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Repeal of 4 yearly reviews and other measures)
Bill 2017, op. cit., pp. 17–18.
[37]. Ibid.,
p. 18.
[38]. Ibid.
[39]. Ibid.
[40]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, The Senate, 22 March 2017, p. 23.
[41]. Heerey
Report, pp. 10–11.
[42]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 4, 2012, The Senate, 21 March 2012, pp. 8–11.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, The Senate, 22 March 2017, pp. 23–24.
[44]. Ibid.,
p. 24.
[45]. Labor
Senators, ‘Labor Senators' Additional Comments’, additional comments, Senate
Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Repeal of 4 yearly reviews and other measures)
Bill 2017, op. cit., p. 18.
[46]. P
Dutton, ‘Second
reading speech: Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017’, House of Representatives, Debates, 1 March
2017, p. 1875.
[47]. Ibid.
[48]. Australian
Chamber of Commerce and Industry (ACCI), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill
2017, April 2017, p. i; Australian Industry Group (AIG), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill
2017, 10 April 2017, p. 3.
[49]. Australian
Council of Trade Unions (ACTU), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill
2017, 7 April 2017, p. 3.
[50]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017, p. i.
[51]. P
Dutton, ‘Second
reading speech: Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017’, op. cit., p. 1875.
[52]. The
Statement of Compatibility with Human Rights can be found at pages i to ix of
the Explanatory Memorandum to the Bill.
[53]. Parliamentary
Joint Committee on Human Rights, Report,
2, 2017, 21 March 2017, p. 57.
[54]. PC,
Workplace
relations framework, op. cit., p. 346.
[55]. Ibid.,
p. 339.
[56]. Ibid.,
p. 346.
[57]. PC,
Workplace
relations framework, op. cit., pp. 339 and 346.
[58]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Bill 2017, p. iv.
[59]. Proposed
subsection 157(2A) at item 13 of Schedule 1; Fair Work Act 2009,
subsection 156(4).
[60]. Section
616 of the FW Act.
[61]. Fair
Work Act 2009, sections 157, 12 (definition of FWC) and 575; Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Bill 2017, p. 5.
[62]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Bill 2017, p. 5
[63]. Ibid.
[64]. Ibid.,
p. 6.
[65]. Ibid.,
p. 6.
[66]. Fair
Work Act 2009, subsection 186(2).
[67]. See
for example: Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and
Energy Union (2014) 242 IR 210, [2014]
FWCFB 2042; Serco Australia Pty Limited v United Voice and the Union of
Christmas Island Workers [2015] FWCFB
5618; Cement Australia Pty Limited [2011] FWA 6917 and Re Transit
(NSW) Services Pty Ltd T/A Transit Systems [2016] FWC
2742.
[68]. PC,
Workplace
relations framework, op. cit., pp. 34–35, 663–667.
[69]. PC,
Workplace
relations framework, op. cit., p. 34.
[70]. Heerey
Report, op. cit., pp. 10–12.
[71]. Ibid.,
p. 46.
[72]. Subsection
581A(4) of the FW Act.
[73]. Whilst
not explicitly stated, the definition of ‘handle a complaint’ in section 12 of
the FW Act (which includes considering and investigating) would appear
to imply an ability to receive a complaint. As such, it would appear that the
Minister can also receive a complaint directly.
[74]. FW
Act, sections 641A and 642 generally.
[75]. FW
Act, sections 641, 641A and 642.
[76]. Heerey
Report, op. cit., p. 47.
[77]. Ibid.,
pp. 47–48.
[78]. Ibid.,
p. 51. The Act of Settlement 1701 (Imp) arose from the constitutional
battles in England in the 17th Century. It provided the essential foundations
of judicial independence, namely that that judges hold office, not at the
pleasure of the King (or in the Australian context, at the pleasure of the
Executive or Governor-General), but rather held office on the basis of good
behaviour (that is, misbehaviour was the only grounds for the Executive
removing a judicial officer, not the pleasure of the Crown). However, the Act
of Settlement provided that upon the address of both Houses of Parliament
it maybe lawful to remove a judicial officer. This preserved the supremacy of
the Parliament whilst ensuring the Executive could not summarily dismiss
judicial officers, and therefore ensured the independence of the judiciary.
See: J King, ‘Removal
of judges’, Flinders Journal of Law Reform, 2003, 6(2), pp. 169–172;
The Hon Chief Justice Brian Martin AO, MBE, ‘Parliamentary government
under threat from the courts?’, Paper presented to the Australasian Study
of Parliament Group, Northern Territory Chapter, Annual Conference 18-19 July
2003, pp. 10-15; H Evans (ed), Odgers’
Australian Senate Practice, 14th edn, 2016, The Senate, pp. 679–683.
[79]. See
sections 82 and 86 of the Workplace Relations
Act 1996, as at 30 June 2009.
[80]. Heerey
Report, op. cit., pp. 47–48.
[81]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Bill 2017, p. 11.
[82]. Section
3 of the JMIPC
Act.
[83]. Sections
13 and 14 of the JMIPC Act.
[84]. Part
3 of the JMIPC Act.
[85]. Explanatory
Memorandum, Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Bill 2017, p. 9.
[86]. Heerey
Report, p. 50.
[87]. Ibid.,
p. 50.
[88]. Ibid.,
p. 51. For an explanation of ‘Act of settlement terms’ see the discussion above
in footnote 78 above.
[89]. This
is because the source of the power in relation to FWC Members would be proposed
subsection 641B(2), that is, the provisions of the JMIPC Act applied
to FWC Members, with the modifications provided for in the table, rather than
section 72 of the Constitution or the JMIPC Act itself.
[90]. Queensland
Law Society, Submission
to the Senate Education and Employment Legislation Committee, op. cit., p. 2.
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