Difference Between the Fair work Commission and Fair work Ombudsman?
Is a question that needs answers. There has been confusion for the last 12 years, when the Fair work Act was enacted on the 1st of July 2009. Fair work is a great name and I understand the rationale. However it only works if its fair to everybody. Particularly the day to day users. Employees who have being dismissed, lost their jobs. underpayments, or award queries are examples. More people search in Google Fair work Australia, than Commission or Ombudsman, they are not sure what they are looking for.
We all witnessed this with the recent pandemic. Jobkeeper, jobseeker, not getting vaccinated, wanting to continue to work from home. I don’t want to work from home and I’m being made to. Lets try and bring some clarity to the situation.
The specific functions of the Fair work Commission include:
1) Judging disputes, complaints in the workplace, (including unfair dismissal, general protection applications and anti bullying applications). sexual harassment stop orders.
2) Maintaining the minimum employment standards including wages and employee rights
3) Reviewing and changing awards and agreements
4) Various other functions related to the workplace.
5) Resolving and ruling on matters relating to the National Employment Standards (NES)
The FWC, (as its known) also has a free call service to provide basic and general information on the Fair Work Act 2009. However they cannot provide legal advice. Therefore, it is more appropriate for employees, employers, contractors and any other relevant parties that believe they have workplace liabilities or responsibilities, particularly around wage theft to call the Fair Work Ombudsman for free advice and information.
The Fair Work Ombudsman also conducts investigations
The Fair Work Ombudsman also conducts investigations. Basically they enforce the underpayment of award wages and disputes around this For most of our clients, we recommend that employees who believe that they have been underpaid go to the Fair Work Ombudsman. Be aware there are timelines to pursue underpayment claims. If you believe your underpaid act now.
This is to enquire into what they should have been paid and request an investigation if they have indeed been underpaid. You can take underpayments to the Fair work Commission under various sections of the Fair work Act 2009. However it is easier in the first instance to go to the Ombudsman. Be aware in the main it must be in breach of an award. If its more of a dispute over salary packaging, not being paid as much as co workers, the salary not being in line with industry standards or you haven’t had a pay rise for some time this is more of a commercial dispute and not a matter for the ombudsman. It is still worth the phone call to find out. I’m stating the obvious the Ombudsman is free and lawyers if you need to go to court over your salary or packaging dispute are not.
General Protections claims
There is an increasing trend of general protections applications dealing with what is referred to as a workplace right. (more info on GP’s click here). It’s generally about complaints, but complaints about what? This opens the avenue or opportunity to take issues around the commercial salary disputes to the Fair work Commission as part of a overall claim. However you simply cannot lodge a claim if your just aggrieved or unhappy with your employer or salary deal. There must be a breach of the Fair work Act. (get advice on this). this also applies to contractor issues.
Non payment of superannuation
One point worth noting we get allot of enquiries around the issue of late or non payment of superannuation. Or around the issue of contractors and superannuation and whether they qualify for superannuation. This issue is the responsibly of the Australian Taxation Office (ATO). The ATO has a very helpful page on this. Its with a step by step process if you qualify for superannuation and non payments of superannuation.
Side note to this is watch your superannuation payments by your employer. It is one of the few payments by the employer that is not guaranteed by the government if your dismissed or if the company is liquidated.
Employees ring the two Fair Work bodies
We get feedback that many employees ring the two Fair Work bodies and particularly the Ombudsman and the time waiting to discuss a matter can be lengthy. The Ombudsman is clearly under resourced, and this needs to be fixed. Employees should be entitled to their monies in a timely manner and assistance to do this. Employees then give up and lodge a claim with the alternative body, thinking that will do, it will sort its self out, well it won’t. Both bodies in essence do there own thing and don’t necessarily interact.
Many employees get confused and try and lodge a unfair dismissal application with the Ombudsman. When it should be with the FWC, being a strictly enforced 21 days to lodge a claim then find them selves out side this timeline. They have the serious risk of having their claim denied. Some employees lodge a unfair dismissal claim because they have not been paid there redundancy pay and its unfair, (it belongs with the Ombudsman). Then end with having to pay the Employers legal cost because their in the wrong place.
State industrial relations bodies
To add to the confusion many employees who are employed by various state governments (excluding Victoria who has no state system) and other state instrumentalities have no access to the Fair work system. They must lodge claims or disputes to the relevant industrial relations body. In many cases it is nor clear as to where the claim should be. In the meantime the 21 day rule to lodge a unfair dismissal or general protections claim is ticking. Get advice on this. Jurisdiction as to where your claim belongs is critically important.
Workcover claims
This has nothing to do with the Fair work regimes. It belongs in the various states with the work compensations authorities, or work safe. You may be able to bring a unfair dismissal or general protections claim if your dismissed or sacked for being on worker compensation. Or for making a workers compensation claim. Get advice immediately for this. Again I’ll state there is a strict 21 days to lodge a claim.
As a general rule the longer your off on work cover the greater the prospect of you being dismissed. The other issue that fits in with this is the ability to perform the inherent functions of the job. At the end of the day you have a employment contract to perform “A” however you can only perform “B”. This is when the disputes arise as to whether you should be dismissed or alternative duties are found. Get advice from a experienced workers compensation lawyer.
Takeaways
We all should be able to go to one body for all things to do with the workplace. Unfortunately its like health, you can end up with a dozen bills for the one hospital stay. We stay connected on social media, etc, etc. But when it comes to issues that matter, it appears very little progress has been made in the last 30 years.
Not sure, get advice from us, its free, its through. Equally the FWC and the Ombudsman have enquiry lines, and are are helpful people. Call 131394, be aware they cannot give legal advice, they are their to process your claim.
We are A Whole New Approach, we are not lawyers, but the nations, leading workplace advisors. With some 30 years experience. We are leaders in workplace commentary, social justice and employee rights. Get advice today, its free, prompt, confidential and honest. All Fairwork Australia, matters including general protection claims, redundancy, probation issues. We work in all states, NSW, Vic, Qld, SA, WA, Tas, happy to help.
Call 1800 333 666 for free confidential advice
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