WFD Exclusive: The leader of a retail industry group pushing for the Federal Government to introduce a Fair Work Commission (FWC) appeals body has revealed industry believes the body is a near-certainty. A separate retail source has said they expect an announcement relating to the appeal body proposal in the next few months.
Australian Retailers Association (ARA) executive director Russell Zimmerman told Workforce he had had discussions with employment minister Senator Eric Abetz since consultation late last year and since FWC granted 20 year olds the adult wage on March 21, 2014 (WF19085).
Although he could “not reveal the content of the private conversations”, Zimmerman said “Abetz is on record prior to the election saying they would bring in an appeal body”. “Since then, he has made no statement that the govt would do it at a particular time but it is on their agenda to do.”
The Coalition’s pre-election industrial relations policy included a promise “to give active consideration to the creation of an independent appeal jurisdiction” against FWC decisions. Abetz started consultation over the appeals body in December 2013, but has made no announcement about whether it will be introduced.
NRA submission argues ‘unambiguous mandate’
A spokesperson for Abetz (above) told Workforce the govt’s policy was only to give the proposal “active consideration”. “The Govt is currently giving consideration to this option following a consultation process with interested parties and will make an announcement in due course,” he said.
National Retailers Association (NRA) chief executive Trevor Evans said based on discussions with the employment department he expected an announcement about the mooted appeal body by mid-year.
The NRA’s submission obtained by Workforce stated “it is industry’s understanding the consideration of this option was a key plank of the Coalition’s election platform” and the govt therefore had an “unambiguous mandate for considering improvements”. “We believe this is best delivered by a new peak appeals body and we call on the government to move on its election commitment as quickly as possible.”
The retail groups are pushing for a new FWC appeal body in the wake of the Federal Court appeal of the adult rates for 20-year-olds in the retail sector (WF19102). They argue the body is needed to simplify the appeals process from full bench decisions. The NRA’s Evans said it had made submissions in December 2013 “strongly in favour” of an appeal body for reasons of “consistency and efficiency”.
The NRA’s six-page submission argued the appeal jurisdiction “would not only bring better consistency through its own appeal rulings, but would also be likely to inject greater rigor into the original decision making processes”. It argued “commissioners [would] think twice before making a ruling that is likely to be overturned on appeal”. The submission said a “great frustration … within the retail industry with the current system is the wide variance in outcomes and the discrepancies in decision making”.
It claimed “there are numerous examples where the cmn has eschewed a common sense approach to the matters before it, and where agreements have been approved outside the spirit of the legislation”. However, the submission did not provide any citations for its examples.
NRA stated it had witnessed “almost identical businesses (similar but separate franchisees within a franchise banner group) putting forward almost identical proposed agreements and substantiating evidence, being heard by different cmrs and resulting in wildly different decisions”.
It mentioned an example where a cmr “refused to certify an agreement, even though they expressly conceded that it passed the better off overall test” because “the cmr asserted they did not believe the employees genuinely agreed to the terms”. The submissions claimed the evidence of a sworn declaration by the employer was “disregarded”, as was “an offer to provide statutory declarations from the employees”.
NRA labelled existing appeals mechanisms “disparate, confusing, inconsistent in their outcomes and generally expensive”. NRA accepted “the right to judicial review is likely to remain” but called on the Federal Govt to “signal that its intention is to create an ultimate appeals body within the industrial relations system, and – save for error in law – its rulings should be the full and final outcome of the system”.
Separate body would sideline FWC President
The Australian Mines and Metals Association (AMMA) executive director Scott Barklamb said its submission argued appeals both from FWC decisions and within the FWC jurisdiction should go to a new body. That would include appeals from modern award decisions, he said.
Barklamb told Workforce AMMA wanted the head of the new body to constitute panels, leaving the FWC President to run the “ordinary jurisdiction”. He said this was “precisely the intention” of a “more targeted appeal body”.
AMMA submitted appeals should move directly from FWC at first instance to the appeal body, removing the possibility of full bench appeals.
Setting up the new jurisdiction would therefore “require consequential amendments for the remaining jurisdiction”, Barklamb (above) said. He cited examples of inconsistency as justification for the new appeal mechanism including in decisions on drug and alcohol, interpretation of the intention of parliament, discipline for work health and safety breaches, and workplace fighting.
Stewart warns of ‘super cmn’
Leading IR academic University of Adelaide Professor Andrew Stewart has told Workforce moves to establish a separate appeals body was a “very disturbing development” and a potential threat to the independence and integrity of the cmn (WF18921).
He said despite claims of inconsistent decisions, it was “much more likely” the appeal body proposal was a push by certain employer groups to get different decisions from the ones the cmn was currently giving.
Stewart said he believed some employer groups were seeking to achieve “by the back door what they may not believe they can get directly from the Coalition Govt – which is direct changes to the Act”.
Further, if the new appeal body was empowered to deal with appeals of modern award findings – and so have jurisdiction over wages, penalty rates and shift lengths – that would effectively create a new “super cmn” and cast doubt on the authority of the FWC to make those important decisions (WF18922).