Fair Work Commission is not a court

No-one will be terribly surprised at a ruling by a Full Bench of the Fair Work Commission to the effect that the Commission is not a court. There would be very few lawyers who would regard the conduct of the Commission as warranting it being regarded as a court, particularly the way in which its members are appointed and the inconsistencies of its procedures and substantive rulings. Although the following extract from a recent decision deals specifically with whether the Commission is a court for the purposes of the Royal Commissions Act (CW), it nonetheless contains a useful, if not novel analysis of the common law as well.

“Is the Commission a “court”?

The Deputy President dealt with this question in the Admissibility Decision of 29 November 2016.31 The Deputy President expressed her decision in the following terms (references omitted):32

“[4] In relation to the first argument, that being whether the Fair Work Commission is a court for the purposes of s6DD of the Royal Commissions Act, I find that this Commission is not a court for the following reasons. The first sentence of s6DD(1) is in the following terms:

“The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory.”

[emphasis added]

[5] The Royal Commissions Act does not define a court. There is acceptance by the Applicant that the Fair Work Commission is not a Chapter 3 court and the Boilermakers case which has been discussed today makes it clear that the Fair Work Commission does not, and cannot, exercise judicial power. The Fair Work Commission exercises arbitral power only.

[6] To the extent that the question of whether the Fair Work Commission is a court for the purposes of the Corporations Act has been considered, I prefer the decision of the Full Bench of the Fair Work Commission in Smith v Trollope Silverwood & Beck Pty Ltd. I note in particular at paragraph 142, which is referred to in the Respondent’s submissions, the court there said:

“If the legislature had intended to make proceedings in the Commission subject to the leave requirement, it would have done so by express provision. An example of this is a provision that may be found in section 2 of the Suitors’ Fund Act which defines ‘court’ in these words, ‘Includes such tribunals or other bodies as are prescribed.’”

[7] There is no reason, in my view, that the use of the word ‘court’ in s6DD should be given anything other than its ordinary meaning. I agree with the Respondent’s submissions that if it were the intention of the legislature to extend the protections of s6DD to proceedings before tribunals such as this Commission, it would have done so explicitly.

[8] The Applicant has referred to some State bodies such as the New South Wales Administrative Decisions Tribunal and argues that s6DD was clearly intended to cover proceedings in those tribunals. States, however, are not bound by the Boilermakers’ principle. Consequently, there are State bodies or tribunals that may be vested with judicial functions. This again is not the case here and so these decisions, in my view, can be distinguished.

[9] If follows then, and I so find, that s6DD will not operate to exclude the admission of the evidence in question.”

On appeal Mr Belan contended that the privilege against self-incrimination is so fundamental as to warrant an interpretation of section 6DD of the Royal Commissions Act that would prevent such admissions made to a Royal Commission from being used by the Commission when deciding whether a valid reason for dismissal existed.

Whatever the policy reasons for the privilege against self-incrimination, this question is to be decided by considering the relevant provisions of the Royal Commissions Act. As this is a question of construction, this full bench is in as good a position as the Deputy President to make a decision on that matter.

Section 6DD(1) of the Royal Commissions Act provides as follows:

“The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

(a) a statement or disclosure made by the person in the course of giving evidence before a Commission;

(b) the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 of subsection 6AA(3).”

We accept, as a matter of principle, the proposition that where a statute abrogates the privilege against self-incrimination and confers compensatory protection, a technical or narrow approach to construction should not be adopted having regard to the importance of that privilege.33 However, in establishing a legislative framework for the conduct of Royal Commissions it is the legislature that ultimately decides the extent to which that privilege should or should not extend more broadly.

Counsel for Mr Belan at first instance and on appeal relied on a decision of the Equity Division of the Supreme Court of New South Wales in Brian Rochford Ltd v Textile Clothing and Footwear Union (NSW)34which found that the NSW Industrial Relations Commission was a court for the purposes of the Corporations Law. However, that case is not authority for a broad proposition that industrial tribunals are courts. As Austin J noted, there are no conclusive, generally-applicable criteria for classifying a body as a court, and the answer in each case depends on the particular statutory question to be decided and a close consideration of the statutory constitution and functions of the body in question.35 That decision turned on a construction of the Corporations Law (as it then was) and the then Industrial Relations Act 1996 (NSW). In contrast, this matter turns on the construction of different instruments, namely the Royal Commissions Act and the FW Act. Each legislative enactment has its own specific features. It would be unsafe to rely on the decision of Austin J for a broader proposition than that which it decided.

The question of whether the Australian Industrial Relations Commission (the predecessor to the Fair Work Commission) was a court for the purposes of the Corporations Act 2001 was considered by a full bench of the Commission in GW Smith and Others v Trollope Silverwood & Beck Pty Ltd (In Liquidation).36 As Deputy President Dean noted, the full bench in that matter observed:37

“If the legislature had intended to make proceedings in the Commission subject to the leave requirement, it would have done so by express provision. An example of this is a provision that may be found in section 2 of the Suitors’ Fund Act which defines ‘court’ in these words, ‘Includes such tribunals or other bodies as are prescribed.’”

That full bench of the Commission also noted the long line of authority since the Boilermakers Case38 that the predecessors to the Fair Work Commission do not and cannot exercise judicial power.

We consider the decision in GW Smith and Others v Trollope Silverwood & Beck Pty Ltd (In Liquidation) to continue to be sound law in the context of the provisions of the FW Act. The Commission is primarily concerned with what rights there should be rather than what rights exist. It does not exercise judicial power. It does not have power to enforce its decisions or orders. It exercises powers (amongst others) of conciliation, of arbitration, of facilitation and of mediation with respect to a broad range of industrial and workplace matters.39 Its functions include a promotional function concerning co-operative and productive workplaces.40 It conducts hearings in multiple forms, including by conference.41 It is not bound by the rules of evidence,42 though as a matter of practice has regard to them. Aspects of its jurisdiction involve only the regulation of future conduct, not existing or past rights.43 Certain of its powers are able to be delegated to persons who are not statutory office holders.44 Others are exercisable only by an expert panel.45 Legal practitioners or paid agents can only appear with permission.46 It has mandatory research and review functions.47 None of its powers are those of a court and it is not referenced as a court in either the FW Act or in associated legislation.

We recognise that there are a number of characteristics of the Commission which are compatible with the character of courts. These include its orders having legal effect,48 powers concerning the giving of evidence,49 offences for interfering in its proceedings,50 Members holding office until age 65 with only limited grounds for removal,51 remuneration of Members set independently,52 limits on outside employment by Members53 and the President having the status of a judge.54 However, merely possessing certain characteristics compatible with a court does not make a body a court if other characteristics exist which do not support such a conclusion when the overall nature, functions, powers and construct of the body is considered as a whole.

Nor do we identify any particular feature of the Royal Commissions Act which would lend us to conclude that the Commission is a court.

Taking into account these factors, in all the circumstances we do not consider the Commission to be a “court” within the meaning of section 6DD of the Royal Commissions Act.”

Belan v National Union of Workers-New South Wales Branch (2018) FWCFB 94 delivered 5 January 2018 per- Gooley DP, Anderson DP and Booth C