Australian Resources and Energy Group AMMA welcomes the measured input of a former long-serving president of the national workplace tribunal into the modern-day Fair Work Commission’s (FWC) controversial allocation of its presidential resources.

The Hon. Geoffrey Giudice AO, President of the Australian Industrial Relations Commission and Fair Work Australia from 1997-2012, prior to it being renamed the FWC, made the observations in a recent lecture to the Australian National University Law school.

Commenting on the FWC’s practice of limiting involvement on important Full Bench appeal matters to a small number of the tribunal’s presidential members, former Fair Work President Giudice said there were “a number of problems” with the approach.

“The first 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.

“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.”

Former President Giudice’s measured observations follow AMMA releasing new analysis showing just four of the FWC’s 23 presidential members are controlling virtually all important Full Bench appeals coming before the tribunal.

AMMA’s analysis of public FWC full bench decisions (1 Jan 2020 to 29 Oct 2020) shows:

  • The FWC’s “gang of four” – President Ross, Vice Presidents Hatcher and Catanzariti and Deputy President Gostencnik, presided over 92% of the 240 Full Bench matters in that period.
  • Female Deputy Presidents of the FWC presided over just 4% of Full Benches, despite comprising more than one-third (35%) of its presidential resources.
  • Coalition-appointed members, despite comprising 62% of the tribunal’s presidential resources, have overseen just 5% of Full Benches.
  • Only 24% of all available places on FWC Full Bench matters were allocated to tribunal members with a business or employer background.

“The practice of the FWC’s present leadership to sideline Coalition-appointed members, female talent and members with a business or employer background from Full Bench appeals, is obvious to anyone reading the tribunal’s public decisions,” Steve Knott, AMMA Chief Executive, said.

“AMMA, and I suspect a large group within the industrial relations community, agrees fully with Justice Giudice’s measured criticism of these resourcing practices.

“All of the tribunal’s presidential members have the same statutory standing, and the same $462,000 taxpayer-funded salaries, to help set the direction of employment practices in this country.

“Serious questions must be asked as to why such a narrow group of four ALP-appointed men, all in their late 50s and early 60s, preside over all the important FWC Full Bench proceedings, to the exclusion of the 19 other well-qualified and well-remunerated presidential members.

“As former Fair Work President Giudice observed, the issues with this include raising questions over whether appealing parties are getting a fair hearing, and whether other presidential members are getting the opportunity to utilise the diversity of their talents and grow their appellant experience for the long-term good of the tribunal.”

AMMA continues to campaign for a review of the structure, performance and resourcing practices of the FWC.

MEDIA CONTACT: Brad Thompson, 0409 781 580