Source: Australian Mines and Metals Association – AMMA
Six new Federal Labor Government-appointed presidential members have determined almost 70 per cent of major Fair Work Commission cases this year, according to AREEA Chief Executive Steve Knott.
Mr Knott will describe the development as “stunning” in a speech to the H.R. Nicholls Society National Conference in Melbourne today.
“During March and May 2023, and in May 2024, then-IR Minister Tony Burke appointed one new Vice President and five new Deputy Presidents (to the FWC),” Mr Knott will say.
“In 2024, to date, these six new presidential members have presided over nearly 70 per cent of all Full Bench matters heard.
“One of these DPs, a former union barrister and National Legal Officer for the CFMEU Mining and Energy Division, has sat on the bench for 56 per cent of all Full Bench matters and presided as the senior member over 38 per cent of them.
“Just to hone this point – nearly 40 per cent of all the FWC’s most important matters were led by a Deputy President who’s been at the tribunal since May 2023.”
The Fair Work Commission is the nation’s workplace tribunal, with appeals of decisions among the significant matters that must be heard by a Full Bench consisting of three Commission members, including at least one who is either the President, a Vice President or a Deputy President.
Of 53 FWC members – seven more than when Labor left office in 2013 – 28 are ALP-appointees with 25 appointed by the previous Coalition government.
Mr Knott says under Justice Adam Hatcher (who became president on February 19, 2023), the FWC appears to be “performing administratively quite well in its role as a service provider to users of the employment system”.
“Agreement approvals are much faster, there appears to be less head-scratching single member decisions that immediately head to appeal, and the tribunal is being very transparent and as efficient as it can in implementing all its new jurisdictions and powers,” Mr Knott says.
However, in his speech Mr Knott will reveal AREEA analysis of all Full Bench matters from January 1 to October 18 this year, showing “alarming trends” in the composition of the bench.
Of the 358 Full Bench decisions assessed over the period:
- 318 (89 per cent) were ALP-appointee majority benches
- Just 40 (11 per cent) were Coalition-appointee majority benches
Mr Knott says the facts point to a continued politicisation of the nation’s IR tribunal at its apex, an issue that commenced under its former President and that AREEA regularly brought to attention.
“Since the end of the Rudd/Gillard era in 2013, ALP appointees have dominated FWC appeal matters, even when Coalition appointees were in the majority,” he says.
“Make no mistake, the sidelining of Coalition appointees in important FWC proceedings has been strategic and subject to much chatter amongst IR professionals.
“The handpicked generation of new FWC Presidential members is designed to ensure this ALP-appointed FWC control at the top of the institution continues well beyond usual political cycles.”
Mr Knott will also use his speech as a call to arms to business to build a case for IR reform – and not just leave it to the Coalition.
“We in the business community can and should collectively campaign as hard as possible to pressure future governments to do what needs to be done to the IR framework,” he says.
“This should be …promoting the merits of a whole new IR system – one focused on simplicity and promoting the direct employer-employee relationship; winding back unwarranted union interference and the influence of tribunal members with limited business experience.”
Mr Knott will call for modern awards to be abolished and replaced with a standard safety net for employees, a far less complex enterprise bargaining system and a winding back of union interference in workplaces.
He says businesses are “drowning in employment red tape and regulatory burden”.
Highlighting how the Howard-era IR reforms produced more than 10 times the real wages growth of the Accord era of the Hawke/Keating Governments, Mr Knott says “we must always bring it back to the opportunity cost”.
“The community at large must be convinced that by making it easier and less costly to employ people, more people will be employed and costs that are saved via less regulatory burden will ultimately be shared by all via higher wages and a more productive economy,” Mr Knott says.
Read the full speech here.