| [2017] FWC 3480 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Family & Domestic Violence Leave Clause
(AM2015/1)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 30 JUNE 2017 |
4 yearly review of modern awards – Family & Domestic Violence Leave Clause – reconstitution of Full Bench.
[1] Matter AM2015/1 concerns a claim by the Australian Council of Trade Unions (ACTU) for a paid family and domestic violence leave clause to be inserted into every modern award. The background to the immediate issue in this matter, which for convenience I will refer to as the ‘constitution issue’, was set out in my Decision of 18 May 2017 1 (the May Decision) and Statement of 23 June 20172 (the June Statement).
[2] In short, the constitution issue is how a Full Bench decision in matter AM2015/1 may be obtained, in circumstances where the presiding Member of the Full Bench that was constituted to deal with the matter (Vice President Watson) resigned from the Fair Work Commission (Commission) shortly after delivering his decision in the matter and where the remaining two Members of the Full Bench (Deputy President Gooley and Commissioner Spencer) have not delivered their decision or decisions in the matter.
[3] As related in the May Decision, I referred questions of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (FW Act) with the intention that the answers to these questions would dispose of the constitution issue and provide certainty in the final disposition of matter AM2015/1. Such a referral is made in the form of a ‘special case’.
[4] The special case was the subject of a Case Management Hearing in the Federal Court on 22 June 2017. The June Statement, which was sent to all parties, provided links to copies of the transcript of this hearing and to the Orders made by the Court. I was represented at the hearing as the applicant and the ACTU, Australian Chamber of Commerce and Industry (ACCI) and Australian Industry Group (Ai Group) also appeared as interested persons.
[5] In the Case Management Hearing the Federal Court indicated that the framing of the special case raised ‘complex questions’ 3. The Court also expressed ‘some serious concerns’ about the competence of the proceeding and, in particular, whether or not the manner in which the special case is framed gives rise to a ‘matter’ of the kind referred to in section 75 or 76 of the Constitution, such as to attract the jurisdiction of the Court.4
[6] The Orders issued by the Federal Court envisage this preliminary issue will take some months to resolve. If the Court was then satisfied as to the competence of the proceeding and the other preliminary matters raised by the Court were dealt with, in the normal course the matter would not come before the Full Court until late November 2017. 5
[7] In the Case Management Hearing the Federal Court suggested, as one simpler alternative to pursuing the special case, that the sorts of questions that are raised in the special case could be brought to the Court if I was to make a decision on the constitution issue and a dissatisfied party affected by my decision then chose to bring an application for judicial review. 6
[8] As reiterated in the May Decision, my concern has been to find a process or outcome in respect of the constitution issue that will give certainty to the parties to AM2015/1 and to persons affected by any variations to modern awards that might result from the determination of this matter. I have been particularly concerned that if this proceeding results in the variation of modern awards to introduce a new leave entitlement there would be the potential, at some time in the future, for the enforcement of an award obligation to be subject to collateral attack on the basis that there was no Full Bench decision in this matter or the Full Bench was not properly constituted.
[9] As foreshadowed in the June Statement, in light of the views expressed by the Federal Court in the Case Management Hearing, I listed the matter for further hearing on 28 June 2017 to give interested parties an opportunity to be heard on the proposal that I might discontinue the special case (the s.608 referral to the Court), subject to the Court granting leave, and decide the constitution issue myself.
[10] The ACTU, ACCI, Ai Group and Australian Meat Industry Council (AMIC) appeared at the further hearing on 28 June 2017. Before hearing from these parties, I advised them of two matters. First, I indicated that if I decided to take the contemplated course and decide the constitution issue myself, I would have regard to the submissions already lodged by the parties on this issue. Second, I advised the parties that I had been informed that the remaining two members of the Full Bench, Deputy President Gooley and Commissioner Spencer, are in a position to hand down their decision or decisions in this matter.
[11] I also made the observation that, by raising this proposal, I was not expressing any view as to the substance of the issues raised by the Federal Court in the Case Management Hearing. Rather, I was prompted by a concern that if the matter continues in the Federal Court the Commission and the parties may be involved in protracted proceedings involving Constitutional issues that travel well beyond the direct interest of the Commission and the parties, and with consequent delay and cost implications for the parties.
[12] The general position of the ACTU, ACCI, Ai Group and AMIC at the further hearing on 28 June 2017, was that they did not oppose the contemplated course that I seek to discontinue the special case and decide the constitution issue myself on the basis of the material already lodged by the parties.
[13] At the further hearing, the ACTU reiterated its concern that there be certainty in any outcome, but was equally concerned to ensure an expeditious outcome. 7 ACCI submitted that, having regard to the views expressed by the Federal Court in the Case Management Hearing, the course I proposed would be the most efficient one and appropriate and sensible in the circumstances.8 Ai Group reiterated its position that the statutory framework did not prevent Deputy President Gooley and Commissioner Spencer handing down their decisions, and, if my decision on the constitution issue aligned with either the submissions of Ai Group or those of the ACTU, then there would be nothing more I would need to do at that stage. Ai Group further submitted that if instead I was to accept ACCI’s submissions and reconstitute the Full Bench, then it would be best to consider what this means in terms of obtaining a decision in the matter at that point in time.9
[14] On 27 June 2017 AMIC lodged a short written submission in response to the Statement 10 and at the further Hearing on 28 June 2017 AMIC reiterated that its position was consistent with that of Ai Group.11
[15] In coming to a decision in this matter I have weighed the now apparent delay and cost to the parties that is likely to result from continuing the Federal Court proceedings and the serious nature of the concerns raised by the Court, as against the as yet theoretical concern about the potential for a future collateral attack upon the validity of any award variation that may arise from the substantive proceedings. I have decided to adopt the contemplated course, that is, I will discontinue the special case, subject to the Court granting leave, and decide the constitution issue myself. It will then be open to a dissatisfied party to bring an application for judicial review of any decision.
[16] As related earlier, the parties appearing at the further hearing on 28 June 2017 did not oppose me deciding the constitution issue on the basis of the material already lodged.
[17] As I have previously observed, there appears to be no authority as to the operation of the relevant provisions of the FW Act in the present circumstances 12 and this is reflected in the quite different propositions put forward in the submissions of the parties.
[18] Written and/or oral submissions in relation to the constitution issue have been made by the ACTU, ACCI, Ai Group, AMIC, Master Plumbers Association of NSW and The Pharmacy Guild of Australia. The submissions lodged up to 28 April 2017 were summarised in my Statement of that date 13, as follows:
‘In relation to the present matter, AM2015/1, it seems that the parties that appeared at the hearing on 4 April 2017 share a view that if Deputy President Gooley and Commissioner Spencer are in a position to hand down their decision(s) in the matter in accordance with the FW Act, then their decision(s) together with the earlier decision of former Vice President Watson could comprise the decision in this matter. However, the parties differ as to what, if anything, must be done to enable them properly to hand down their decision(s) and, if it is necessary to reconstitute the Full Bench for that to occur, whether a new Member of the Bench would be required also to issue a decision in the matter.
It seems that the ACTU and Ai Group (supported by AMIC and Master Plumbers Association of NSW) are of the view that the FW Act permits Deputy President Gooley and Commissioner Spencer now to hand down their decision(s) so as to complete the decision-making of the original Full Bench. In contrast, it seems that ACCI (supported by The Pharmacy Guild of Australia) is of the view that I must reconstitute the original Full Bench before Deputy President Gooley and Commissioner Spencer can properly hand down their decision(s). While ACCI is of the view that a new Member appointed to the Full Bench might exercise discretion not to issue his or her own decision (so that the decision of the reconstituted Full Bench comprises the decisions of the members of the original Full Bench), Ai Group considers that a new Member may be required to issue their own decision.
The parties also differ as to the operation of FW Act s.624 in the present circumstances. It seems that ACCI and Ai Group are of the view that if Deputy President Gooley and Commissioner Spencer were now to hand down their decision(s) then, even if there is a deficiency in the constitution of the Full Bench, s.624 would ensure their decision(s) are not invalid. However, the ACTU suggests that reading s.624 harmoniously with the other provisions Division 4 of Part 5-1 of the FW Act and s.618 in particular, has the result that s.624 would not operate to validate a decision made by a Bench with less than three Members. The ACTU also suggests that if there is at present no Full Bench for the purposes of making a decision in matter AM2015/1 then that is a Bench that ‘has emerged’ rather than one that was ‘constituted’ for the purposes of s.624.’ 14 [Endnotes omitted].
[19] In its further written submission of 27 June 2017, AMIC urged a very cautious approach if I was to come to the view that the Full Bench needs to be reconstituted in order to obtain a decision in this matter, and in relation to any decision that might be issued by any newly appointed member of the Full Bench in particular. 15
[20] In essence, the ACTU, and Ai Group and AMIC (with the support of Master Plumbers Association of NSW), put a common position – albeit for different reasons – that I am not required by FW Act s.622 to reconstitute the Full Bench in order to obtain a decision in matter AM2015/1. On the other hand, ACCI (with the support of The Pharmacy Guild of Australia) submits that s.622 requires me to reconstitute the Full Bench by adding a new member, before Deputy President Gooley and Commissioner Spencer can properly hand down their decision(s).
[21] The Full Bench in the Penalty Rates Decision 16 made the following general observations about the task of statutory construction:
[96] The starting point is to construe the words of a statute according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief the legislative provisions was intended to remedy. Regard may also be had to the legislative history in order to work out what a current legislative provision was intended to achieve.
[97] Each provision of the FW Act must be read in context by reference to the language of the FW Act as a whole. The relevant legislative context may operate to limit a word or expression of wide possible connotation. The literal meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be displaced by the context and legislative purpose, as the majority observed in Project Blue Sky:
‘… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’
[98] The provisions of an act must be read together such that they fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own.
[99] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue32 (Alcan) the High Court described the task of legislative interpretation in the following terms:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’ [Endnotes omitted]
[22] Section 622 is the relevant provision for present purposes, it states:
622 Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable
(1) This section applies if:
(a) an FWC Member (the unavailable member) forms part of a Full Bench or an Expert Panel in relation to a matter; and
(b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.
(2) The Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Expert Panel consists of the following:
(a) for the Expert Panel—the President and at least 2 Expert Panel Members;
(b) for a Full Bench—at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.
(3) Otherwise, the President must direct another FWC Member to form part of the Full Bench or the Expert Panel. After the President does so, the Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member.
Note: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).
[23] Section 622 of the FW Act is enlivened in the circumstances described in s.622(1). Relevantly for present purposes, that is when a Commission Member forming part of a Full Bench in relation to a matter ‘becomes unavailable to continue dealing with the matter before the matter is completely dealt with.’
[24] The relevant circumstances are that:
[25] At the time the then Vice President published his decision in matter AM2015/1 on 27 February 2017, he clearly formed part of the Full Bench in relation to that matter. It follows that s.622(1)(a) is satisfied. The question is whether in the present circumstances, the former Vice President is to be regarded as having become ‘unavailable to continue dealing with matter [ie, AM2015/1] before the matter is completely dealt with’, within the meaning of s.622(1)(b).
[26] The present circumstances are unprecedented. The application of s.622 to them is a matter on which reasonable minds may differ and quite different contentions are made by the parties, as is apparent from my earlier summary of the submissions advanced in respect of this issue (see [18]).
[27] It is convenient to deal first with Ai Group’s contention that the language of s.622 ‘suggests that it is directed at the situation where a current Member of the FWC becomes unavailable for some reason (such as illness or leave) rather than a situation where a person ceases to be a Member of the FWC’. 17 It is on this basis that Ai Group advances its primary position that s.622 has no application in the current context.
[28] I reject the submission that s.622 has no application in circumstances where a member of a Full Bench ceases to be a Member of the Commission. On the construction advanced by Ai Group s.622 would apply where a Full Bench Member became ‘unavailable’ due to illness, but not if the Member’s ‘unavailability’ was due to the death of the Member. I am not persuaded that there is any warrant for limiting the application of s.622(1) in the manner proposed by Ai Group.
[29] While the proper construction of s.622(1)(b) and its application in the present circumstances is far from clear it seems to me that the then Vice President’s publication of his decision can be regarded as commencing a process of the Full Bench delivering its decision, which is yet to be completed. Consistent with the proposition put by the ACTU, in my view it may be said that having completed his role in that process, the former Vice President is not to be regarded as being ‘unavailable to continue dealing with the matter’ insofar as that ‘dealing’ is confined to the Full Bench completing the process of delivering its decision. As far as the former Vice President is concerned, he has completely dealt with the matter, in that he has published his decision in respect of it. Construed in this way it is apparent that s.622(1)(b) is not enlivened in the present circumstances.
[30] Section 618 of the FW Act lends some support to the construction of s.622(1)(b) above. Section 618 seems to contemplate that the individual members of a Full Bench might issue separate decisions in relation to the matter before them. Further, the FW Act does not expressly require that any such individual decisions be published simultaneously. However, I agree with Ai Group’s submission that ‘it is customary and convenient for Members of a Full Bench to hand down their decisions at the same time’ 18.
[31] Further, as I have previously observed, reconstitution of the Full Bench could result in a different decision in matter AM2015/1 to that which would result from the course of action proposed by Ai Group and the ACTU.
[32] I do not propose to exercise any powers to reconstitute the Full Bench. In my view the FW Act permits Deputy President Gooley and Commissioner Spencer to hand down their decision(s) so as to complete the decision-making process of the original Full Bench. I will request Senior Deputy President Gooley and Commissioner Spencer to hand down their decision(s) in the matter as soon as possible. Those decisions, taken together with the decision of former Vice President Watson, will together comprise the Full Bench decision in matter AM2015/1.
[33] I would add that, consistent with the above, in my view s.622 would be enlivened for the purposes of any dealing with matter AM2015/1 other than the completion of the process of the Full Bench delivering its decision.
[34] I note that any party will of course be free to challenge my decision, or the Full Bench decision, by way of judicial review. Such a course will not enliven the same constitutional complexities as pursuing the s.608 referral application.
PRESIDENT
2 [2017] FWC 3389.
3 Federal Court transcript 4 April 2017 p4, lines 7-14.
4 Federal Court transcript 4 April 2017 p2, lines 38-44.
5 Federal Court transcript 4 April 2017 p5, lines 25-30.
6 Federal Court transcript 4 April 2017 p4, lines 16-42 & p8 lines 35-37.
7 Commission transcript 28 June 2017 PN18.
8 Commission transcript 28 June 2017 PN27-PN29.
9 Commission transcript 28 June 2017 PN33-PN37.
10 Written submission of AMIC in response to Statement of 23 June 2017, dated 27 June 2017.
11 Commission transcript 28 June 2017 PN43.
12 Section 622 was considered by the Full Federal Court in Financial Services Council Ltd v Industry Super Australia Pty Limited (2014) 222 FCR 455 but in quite different circumstances, and accordingly that decision is of no direct assistance in the present matter.
14 Ibid at [18]-[20].
15 Written submission of AMIC in response to Statement of 23 June 2017, dated 27 June 2017, at paragraphs 6-9.
16 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001.
17 Ai Group submission 3 April 2017 at paragraph 34.
18 Ibid at at paragraph 21.
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