FWC president rebuffs FSC
The president of the Fair Work Commission (FWC), Justice Iain Ross, has effectively rejected a claim by the Financial Services Council (FSC) that the FWC cease its default funds under modern awards review because it cannot properly constitute its expert superannuation panel.
FSC chief executive John Brogden earlier this week wrote to Justice Ross arguing that in the absence of the president himself and the two superannuation specialists who were stood down for perceived conflicts of interest, the expert panel was no longer compliant with the underlying legislation.
"Accordingly we do not believe that it is possible for the Expert Panel to be reconstituted at the present time. We respectfully submit that the FWC must cease dealing with the matter until such time as the Expert Panel can be properly reconstituted (whether due to new Expert Panel appointments or changes to the Act)," Brogden's letter said.
The expert panel now includes only one of the original superannuation "experts", former ACTU official and industry fund property trust specialist Arthur Apted; and former ACTU-employed economist Tim Harcourt.
However Justice Ross' response to the FSC letter makes it clear that he is determined to proceed with the default funds review unless the FSC is prepared to make a formal application. He then added that he would not enter into further discussion on the matter.
"If the FSC considers that Expert Panel Member Apted or Harcourt has a conflict of interest, it is open to it to make an application in the proceedings that the Member not hear the matter.
"I do not consider it appropriate to engage in further ex parte discussions in relation to the proceedings," the FWC president's letter said.
It is not known whether the FSC will now pursue the matter in a higher court or whether the Government will act on what is being seen as a breach of the legislation.
AUTHOR
Mike Taylor
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