FWC and FSC quarrel nearing end

2 June 2014

The controversial Federal Court dispute between the Financial Services Council (FSC) and the Fair Work Commission (FWC) may be defused, with the president of the FWC, Justice Iain Ross having written to the Federal Government asking it to appoint a new member to the FWC’s expert superannuation panel. 

Justice Ross wrote to the Minister for Employment, Senator Eric Abetz late last week formally requesting that the minister quickly fill the vacancy on the expert panel created by the resignation of MTAA Super trustee board member, Vicki Allen. 

In doing so, Justice Ross appears to have substantially defused the underlying reasons for the Federal Court action mounted by the FSC - a belief that in the absence of Allen and fellow panel member, Steve Gibbs, the expert superannuation panel was not validly constituted. 

The FSC initiated the Federal Court action on the basis that the expert panel superannuation panel, central to the selection of default funds under modern awards, was not appropriately constituted even after Justice Ross appointed himself. 

Justice Ross’ request for the appointment of a new panel member was in response to a letter from Senator Abetz asking that the FWC president to clarify the status of Allen and Gibbs. 

In his letter, Ross argues that while conflicts of interest precluded Allen and Gibbs from sitting on the expert panel, those same conflicts did not preclude them from sitting on FWC wages panels. 

However he said that while Gibbs had indicated his willingness to sit on a wage review panel, Allen had signalled that she was only interested in serving as a member of the expert panel reviewing default funds and would therefore be resigning her position as an expert panel member. 

It is not known how quickly the minister will move to appoint a new expert panel member, but how quickly he moves is expected to influence not only the FSC’s Federal Court challenge but also the pace at which the FWC actually proceeds with its review and selection of default funds. 

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