Procedure for dealing with complaints about Members

Section 581A of the Fair Work Act 2009 (Cth) (Act) provides a flexible framework enabling the President of the Fair Work Commission (Commission) to deal with a complaint about the performance by another Commission Member (Member) of his or her duties, as the President considers appropriate.

This framework is intended to support the independence of Members and confidence in the Commission.

The purpose of this document is to set out the procedure that the President generally will follow in dealing with complaints within the statutory framework.

It is intended that this complaints procedure will provide a flexible process through which a complaint by a member of the public about a Member’s conduct can be brought to the attention of the President and the Member concerned and the complaint resolved appropriately.

Under this procedure, the President may decide whether or not to handle a complaint, and may then dismiss the complaint, refer it to another agency, handle the complaint or arrange for another person or persons to assist the President to handle the complaint.

Section 584B of the Act affords legal protection and immunity to complaint handlers, and to witnesses and lawyers involved in the handling of a complaint.

Section 581A(1) of the Act provides that in dealing with a complaint, the President may take any measures that the President believes are reasonably necessary to maintain public confidence in the Commission.

Section 641A of the Act provides that the Minister may handle a complaint about the performance by a Commission Member of his or her duties, for the purpose of considering whether:

• 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 Member, or
• to advise the Governor-General to suspend the Member.

2.1 Complaints covered and excluded

This procedure applies to complaints made to the President about the performance by another Commission Member of his or her duties, other than complaints about matters that can be dealt with in an appeal or judicial review (see 2.2 below).

Complaints about delays in handing down decisions should be made through the separate process for inquiring about delays (see 2.3 below).

2.2 Matters that can be dealt with in appeal or judicial review

A party who does not agree with a decision or order made by a Member should consider seeking an appeal or judicial review.

If a complaint is received by the President about a decision or order that is, or was, capable of being dealt with in an appeal or an application to a court, the President will advise the complainant that the matter cannot be handled under this complaints procedure.

There are time limits for making appeal and court applications.  Making a complaint will not relieve a person of the requirement to comply with these time limits.

2.3 Delays in handing down decisions

The Commission has timeliness benchmarks for the delivery of reserved decisions and for dealing with applications for approval of enterprise agreements.  It also has a separate process for dealing with enquiries about delays.

In accordance with that process, if an enquiry identifies a matter that has not been completed within the benchmarks, it will be referred to the President’s Chambers.  If there appears to be undue delay, the President will take the matter up with the relevant Member.  The Commission will respond in writing to the person who made the enquiry.

If you have not received a written result in your matter, and the final date of hearing or date of last submissions was more than 12 weeks ago, you can email decisiontracking@fwc.gov.au for a status update.

For agreement applications, benchmarks and details of how to make an enquiry can be found on the Agreements in progress page on the Commission’s website.

Email enquiries must include your name, Commission matter number, and the date of the final hearing or the date of the last submissions.

If a complaint about delay is not resolved through the above process, it may be dealt with as a complaint under this complaints procedure.

A complaint about the performance by a Member of his or her duties must be made in writing to the President and must identify the:

• person making the complaint and their contact details (including a postal and/or email address for correspondence)
• Member about whom the complaint is made, and
• conduct of the Member about which the complaint is made.

4.1 Preliminary assessment of complaint

A complaint will be dealt with as expeditiously as proper consideration of the matter permits.

Upon receiving a complaint, unless the nature of the complaint would make it inappropriate to do so, the President will notify the Member concerned of the complaint and provide a copy of the complaint to the Member.

The President will make a preliminary assessment of the complaint and decide whether to:

• summarily dismiss the complaint
• refer the complaint to another agency
• handle the complaint without referring it to an External Complaint Handler (as defined in 4.5 below), or
• refer the complaint to an External Complaint Handler to assist the President to handle the complaint.

4.2 Summary dismissal of complaint

Pursuant to section 581A(2) of the Act, the President may handle a complaint if the President has a “relevant belief” (as defined in s.12) in relation to the complaint.

The President has a relevant belief in relation to a complaint if the President believes that:

• if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances would justify considering:
• terminating the appointment of the Member in accordance with section 641 of the Act, or
• suspending the Member from office in accordance with section 642 of the Act; or
• if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances may:
• adversely affect, or have adversely affected, the performance of duties by the Member, or
• have the capacity to adversely affect, or have adversely affected, the reputation of the Commission.

Accordingly, the President will summarily dismiss a complaint if the President does not have a relevant belief in relation to the complaint.  This includes the following grounds for summary dismissal:

• the complaint is frivolous, vexatious or not in good faith
• the complaint is misconceived
• the subject matter of the complaint is trivial
• the matter complained about occurred at too remote a time to justify further consideration
• the complaint relates to a matter that was dealt with in an appeal or judicial review, or
• the person complained about is no longer a Member.

The President will notify the complainant in writing and the Member concerned (where appropriate) if the complaint is summarily dismissed.

Notes

Section 641 provides for the Governor-General to terminate a Member’s appointment if an address is presented by each House of Parliament praying for the termination on the grounds of proved misbehaviour or physical or mental incapacity.

Section 642 provides for the Governor-General to suspend a Member (other than the President) from office for misbehaviour or physical or mental incapacity

4.3 Referring complaint to another agency

At any stage in the handling of a complaint, the President may refer the complaint to another agency.

Unless the nature of the complaint would make it inappropriate to do so, the President will notify the Member concerned of such a referral.

Complaints alleging criminal conduct will generally be referred to police in the first instance.

The President or an External Complaint Handler may adjourn consideration of any matter if it is being considered by another agency or a court.

4.4 Handling complaint without referral to External Complaint Handler

The President may handle any complaint in discussion with the Member concerned, without referring it to an External Complaint Handler.

The President may commence handling a complaint in this manner and subsequently decide to refer the complaint to an External Complaint Handler.

The President may refer the complaint to an External Complaint Handler if this is requested by the Member concerned.

4.5 Referring complaint to External Complaint Handler

Authorisation of External Complaint Handler

Pursuant to section 581A(3) of the Act, the President may authorise in writing a person or a group of persons acting as a body, to assist the President to handle a complaint (an External Complaint Handler).

The person or persons constituting an External Complaint Handler will be determined by the President, but will be external to the Commission, independent of the Commission and of appropriate standing - for example, a retired judge, a retired Commission Member or a senior member of the Bar.

Referral to External Complaint Handler

The President may refer any complaint to an External Complaint Handler.

The External Complaint Handler will assist the President to handle the complaint by investigating the complaint, deciding whether it is substantiated and reporting to the President, in accordance with the procedure in 4.6 below.

4.6 Procedure for External Complaint Handler

Investigation

The External Complaint Handler may undertake such investigations into a complaint as it considers appropriate, with a view to concluding the investigation as expeditiously as proper consideration of the matter permits.

Procedural fairness will be afforded to a Member who is the subject of an investigation.

The External Complaint Handler may hold hearings and in doing so will:

• afford the Member concerned the opportunity to address the External Complaint Handler, without compelling the Member’s attendance at a hearing, and
• allow the Member to be represented by a legal practitioner.

No adverse inference will be drawn by an External Complaint Handler should a Member choose not to attend a hearing or, if the Member does attend, decline to answer questions that are asked.

If the External Complaint Handler suspects that a Member is physically or mentally unfit to exercise the functions of the Member’s office, it may request that the Member undergo a medical or psychological examination.

The External Complaint Handler cannot compel a Member to undertake such an examination, and no adverse inference can be drawn if the Member refuses.

The External Complaint Handler will provide the Member with a reasonable opportunity to comment on any proposed report to be made by the External Complaint Handler.

Report

On completing its investigation of a complaint, the External Complaint Handler will report to the President in writing on the outcome of the investigation and its recommendations for resolving the complaint.

The External Complaint Handler will recommend that the complaint be dismissed if it concludes that none of the circumstances that gave rise to the complaint have been substantiated, or, to the extent that the complaint has been substantiated, if any of the grounds on which the President may summarily dismiss a complaint apply (see 4.2 above).

If the External Complaint Handler does not recommend that the complaint be dismissed, it may conclude that the matter:

• would justify considering terminating the appointment of the Member in accordance with section 641 of the Act or suspending the Member from office in accordance with section 642 of the Act, or
• may adversely affect, or has adversely affected, the performance of duties by the Member, or
• has the capacity to adversely affect, or has adversely affected, the reputation of the Commission.

If the External Complaint Handler does not recommend that the complaint be dismissed, it will include in its report recommendations as to what steps might be taken to resolve the complaint, including training, to assist the President in discussing the complaint with the Member concerned.

The External Complaint Handler will provide a copy of its report to the Member concerned.

4.7 Resolving complaint

In handling and resolving a complaint, procedural fairness will be afforded to the Member concerned.

The President and any External Complaint Handler will cease dealing with a complaint if the Member concerned ceases to hold his or her appointment for any reason.

Pursuant to section 581A(1) of the Act, at any point in the process of handling and resolving a complaint, the President may take any measures the President believes are reasonably necessary to maintain public confidence in the Commission, including (but not limited to) temporarily restricting the duties of the Member concerned.

If the complaint was referred to an External Complaint Handler, then having received the External Complaint Handler’s report, the President may seek a further report from the External Complaint Handler or arrange for another External Complaint Handler to re-examine an issue or consider new issues.

It is a matter for the President whether to act on an External Complaint Handler’s advice.

When any investigation of the complaint is concluded and after considering any report from an External Complaint Handler, the President will consider whether or not to dismiss the complaint.

If the complaint is not dismissed, the President will consider whether the matter:

• would justify considering terminating the appointment of the Member in accordance with section 641 of the Act or suspending the Member from office in accordance with section 642 of the Act, or
• may adversely affect, or has adversely affected, the performance of duties by the Member, or
• has the capacity to adversely affect, or has adversely affected, the reputation of the Commission.

The President will then determine what steps are to be taken to resolve the complaint.

The President will notify the complainant and the Member concerned (where appropriate) in writing when a complaint has been resolved to the President’s satisfaction.

4.8       Referring complaint to Minister

As required by section 581A(4) of the Act, the President will refer a complaint about the performance by a Member of his or her duties to the Minister if, after the complaint has been handled in accordance with this complaints procedure, the President is satisfied that:

• one or more of the circumstances that gave rise to the complaint have been substantiated, and
• each House of Parliament should consider whether to present to the Governor-General an address praying for the termination of the appointment of the Member.

The President will notify the complainant and the Member concerned of such a referral.