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AREEA analysis shows women sidelined at the Fair Work Commission

Read coverage of AREEA’s advocacy in The Australian here.

Australian Resources and Energy Group has raised serious questions about the Fair Work Commission (FWC) after revelations its female presidential members are being inexplicably sidelined from important Full Bench matters.

Analysis of the national employment tribunal’s decisions in 2020 shows female Deputy Presidents of the FWC have presided over just 4% of the 240 Full Bench matters to date, despite comprising more than one-third (35%) of its presidential resources.

Of the FWC’s eight female Deputy Presidents, five have not presided over a single Full Bench matter in 2020, whilst the other three have presided over 10 matters between them.  Meanwhile one male Deputy President, Val Gostencnik, has presided over 29 Full Bench matters in 2020.

DP Gostencnik, alongside President Ross and Vice Presidents Hatcher and Catanzariti, form what is known as the FWC’s ‘gang of four’ – the four most powerful members of the tribunal who between them have presided over 92% of all Full Bench matters in 2020.

“In addition to the President and two Vice Presidents, the FWC has 20 Deputy Presidents. These Deputy Presidents all earn the same taxpayer-funded salary of $462,000 and have the same statutory standing to administer the work of the national workplace tribunal,” Steve Knott AM, Chief Executive of the Australian Resources and Energy Group (AREEA), said.

“It’s incredibly disappointing that female Deputy Presidents, who today comprise 35% of the tribunal’s presidential members, have overseen just 4% of Full Bench matters in 2020.

“Meanwhile the ‘gang of four’ – all men in their late 50s or early 60s and all appointed to the tribunal by the Australian Labor Party more than seven years ago – are making 92% of the important decisions relating to employment practices in this country.

“It is one thing for business and government agencies to work to close the gender gap; it’s another to actually utilise the talent once recruited.  In 2020 it is simply unacceptable for the FWC’s incredible talent pool of women to be effectively sitting on the sidelines.

Former FWC President weighs in

Justice Geoffrey Giudice

AREEA’s concerns about the composition of FWC Full Benches where echoed last week by the tribunal’s former President, The Honourable Geoff Giudice AO.

In a rare public criticism of his predecessor, Justice Giudice used part of his lecture for the ANU Law School’s Annual Phillipa Week, to comment on the practice of limiting full benches to a small select group of tribunal members.

“The first (problem) is that appellants with a good argument that an earlier full bench decision should not be followed are often unable to get to first base, because they find they are before an appeal bench comprised of some or all of the members who made the decision in question,” said Justice Giudice, who was appointed to the tribunal in 1997 and was its president from 2009-2012.

“This can lead to the impression that a fair hearing has been denied because the bench never opened its mind to the possibility of a different conclusion.

“The second problem is that limiting the composition of full benches in this way fails to make use of the talent and experience of a broader range of the Commission membership.

“Aligned to that is the possibility that for some members, the only experience of appeals is receiving the pronouncement of appeal benches on their decisions.

“All members of the Commission should have equal access to appellate work for the sake of their own development as much as for the quality of appellate decision making.”

Mr Knott said AREEA would continue to raise these issues with the Australian Government.

“We will encourage the Minister for Women and the Workplace Gender Equality Agency to ask serious questions about the FWC’s under-utilisation of its female talent,” he said.

“We also continue to call for the Attorney-General and Minister for Industrial Relations to initiate a full-scale review of the tribunal’s structure, resource allocation and performance.”

To learn more about AREEA’s advocacy for a better performing national workplace tribunal, or all other AREEA industrial relations campaigns, contact [email protected]

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