Ms O’Dwyer said at the time that the appointments would allow the commission to cope with its workload more effectively.
The appointments followed data showing most employers are now waiting 76 days to get their enterprise agreements (EAs) approved, more than double the commission’s 32 days target.
In his letter, Justice Ross said one new appointee would take on Mr Cribb’s work and another promoted member would continue under current arrangements.
But the other new appointees would, for the short term, chiefly mediate general protections claims, handle requests for extension of time and work on “some” contested EA cases.
One former commission member toldThe Australian Financial Reviewthat restricting new appointees to conciliation – work usually done on the phone by professional mediators – was “unprecedented”.
The former member said traditionally the president simply appointed new members to panels specialising in particular industries.
While there might be some training if necessary, it was not prescribed and had never involved assigning new members to lesser duties.
“It’s petty – it’s a dispute between [Justice Ross] and the minister,” the former member said.
In his letter, Justice Ross cited Ms O’Dwyer’s rationale for the new appointees as a response to concerns over commission members not being given conciliation work.
Employer groups have long complained about Justice Ross delegating public servant conciliators rather than commission members to mediate complex legal cases such as general protection and adverse action claims.
Costs cut to pay for commission members
Assigning the new members to conciliation – potentially replacing contract conciliators – may also assist Fair Work’s budget given the government has not assigned extra money to pay for them.
Justice Ross said in his letter that the new appointments raised “significant challenges” for the commission.
He said the costs of the new appointments would total $4.6 million from 2018 to the end of the 2020 financial year. That amounted to 10 per cent of all staff expenditure, he said.
As a result he had taken action to cut costs, including by reducing travel spending so members would have to participate in some appeal cases by video if they were held inter-state.
He had also scaled back and deferred projects, reviewed all contractor and ongoing positions, and was not filling vacant staff positions.
Fair Work refuses to comment
In response to questions about the new members, Fair Work general manager Bernadette O’Neill said “the commission will not make any comment in relation to the work of individual members”.
She said that the commission “has not been advised of any additional funding for the new appointees”.
Australian Mines and Metals Association chief executive Steve Knott said “it is expected the six new appointments … will discharge the full range of duties expected of a FWC commissioner or deputy president”.
But he said “it is expected ALL FWC members will be actively engaged in general protection claims in lieu of public service conciliators”.
“General protection claims are on the rise. Federal Court proceedings associated with such claims often exceed $100,000.
“Accordingly FWC member expertise in such matters, not conciliators, is a reasonable expectation for matters of such significance.”
New deputy presidents who have started at the commission include Nicholas Lake, a senior human resources manager at BHP Billiton and ExxonMobil, and Gerard Boyce, a barrister who had worked for the AMMA and the National Electrical and Contractors Association.
Incoming members include Bryce Cross, a barrister who used to head the Chamber of Manufactures in NSW, Amanda Mansini, the director of workplace relations at AMMA, and Janine Young, a partner at law firm Corrs Chamber Westgarth.
The appointments mean most members of the Fair Work Commission are now Coalition appointments.
Asked last month if Labor would consider spilling the commission if it won the election, opposition employment spokesman Brendan O’Connor told reporters that “it’s a very big step for us to consider but we’ll have to think our way through that”.