The “embarrassingly” troubled Fair Work Commission superannuation panel which was plagued last week with accusations of conflicts of interest should cease, the FSC have submitted.
Following the shock removal of two of the expert panel members, the Financial Services Council CEO John Brogden wrote to the FWC president imploring him to cease the panel process and refrain from making any further appointments.
“We do not believe the requisite skills exist within the FWC for the expert panel to be reconstituted,” Brogden said.
A supplementary submission to the letter outlined the legislation - namely section 622 of the Fair Work Act – that would potentially be breached if the panel was reconfigured and continued to operate.
“The FSC submits that the presiding FWC member is a senior deputy president (as opposed to the president). As such, the current constitution of the expert panel does not satisfy the requirement under section 622(2)(a) and the expert panel as currently constituted cannot continue to deal with the matter,” the submission said.
It also added that the president is only empowered to reconstitute the panel with a FWC member that was originally appointed by the Governor General as an expert panel member.
The two different sets of expert panel appointments announced by the then minister for workplace relations were either for the superannuation default funds review, or for the minimum wage review.
But the FSC asserted that it is vital that members of the review process satisfy the knowledge and experience requirements of the legislation.
“The FSC therefore submits that the appointees to the superannuation expert panel are solely qualified for that expert panel, and the appointees to the minimum wage review expert panel are solely qualified for the wage review expert panel,” it said.
In the view of the FSC, any such reconstitution using members who were originally appointed in relation to the minimum wages review expert panel would be a breach in the knowledge and experience requirements of the FW Act.
However the very next day president of the FWC Justice Iain Ross replied that he had appointed Tim Harcourt to form part of the default fund review expert panel. Before this, Harcourt was indeed one of three members of the minimum wage review panel.
In his reply Ross said he was satisfied that Harcourt, an economist and former Australian Council of Trade Unions staffer, met the legislative requirements.
contacted the FSC in light of the appointment, but they had no further response at this stage.
Last week The Australian
reported that Brogden called the whole thing embarrassing.
The Corporate Super Specialist Alliance (CSSA) president Douglas Latto previously told Wealth Professional
that the organisation had major concerns about the process and the FWC’s lack of experience.
“I don’t see how the Fair Work Commission can walk in after a few months. It’s like getting your handyman to do your electrical work,” he said.