One of Australia’s peak business groups has defended the creation of a more effective appeals mechanism at the Fair Work Commission after the Law Council warned against the controversial proposal.
Kate Carnell, the head of the Australian Chamber of Commerce and Industry, representing about 300,000 small businesses, said there was precedent for specialist appeals divisions in industrial tribunals both in Australia and internationally.
“ACCI is acutely aware that Appeals require considerable time and money to prosecute and can place an enormous drain on our members’ resources. Their outcomes can have major implications for the cost of doing business, how business is conducted and the rights of employers to manage their workers.
“ACCI, like many of our members, has been concerned about conflicting Appeal decisions from the FWC relating to the same issues because an Appeal process that does not deliver consistency and certainty ends up hurting business. It is vital that Appeal decisions are contemporary and relevant… is not unreasonable to ask why shouldn’t we have the best possible Appeals process?
“ACCI believes we need a best practice Appeals process that will deliver sound decisions and greater certainty and we should go for the best rather than accept the vagaries the current system delivers,” she said.
The Abbott government is considering establishing an appeals process and canvassed the proposal in its pre-election industrial relations policy document, taking submissions on the concept after its election victory a year ago.
The proposal has been championed by groups like the Australian Mines and Metals Association (AMMA) as being critical to restoring the confidence of business and employer bodies in the industrial umpire.
Employment Minister Eric Abetz has not given his full commitment to the proposal but is attracted to a model similar to the NSW court of appeal.
AMMA has railed against what it believes is inconsistent decision making by the industrial umpire and the appointment of commission members affiliated with the trade union movement. Chief executive Steve Knott was particularly critical of the creation of two new statutory vice presidential roles filled by Adam Hatcher and Joe Catanzariti.
In a recent paper prepared on the FWC, Mr Knott wrote that his push for an appeals body was driven by a need for “all employers to have greater certainty and consistency of Commission decisions and proper application of long standing industrial precedents in order to run their businesses effectively and with minimal IR disputation”.
A few weeks ago, the Law Council came out against the creation of an independent appeals jurisdiction in its newsletter because of the risk it posed to the authority of the commission.
“The creation of a new appellate body, sitting above the current FWC, with freshly appointed members, would have the tendency to undermine the standing of the FWC and consequentially its capacity to be an effective body,” it found.
