Fair Work Australia is the term commonly used by the public to refer to or search for the Fair Work Commission – Australia’s national workplace tribunal. According to Google statistics, more people search Fair Work Australia than Fair Work Commission or FWC. This is the main reason I thought I would write an article on it, to minimize the confusion and explain who Fair Work Australia are and what they do.
Fair Work Australia
Fair Work Australia was established in 2009. It replaced the Australian Industrial Relations Commission (AIRC) following the introduction of the Fair Work Act 2009 (Cth). In 2013, Fair Work Australia was renamed the Fair Work Commission. Google research suggests that Fair Work Australia is the preferred name for the Fair Work Commission as it is more often searched for.
In any event, Fair Work Australia is an independent workplace relations tribunal. It has the power and authority to regulate and enforce provisions relating to minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, and termination of employment.
The Fair Work Act was an attempt to create a more national system for regulating industrial relation matters in Australia. Each state has the discretion to hand over some or all of their industrial relations powers to the Commonwealth. Should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state would effectively be covered by the national Fair Work Act. Since the introduction of the Fair Work Act, all states except Western Australia have referred their powers to the Commonwealth.
There are however certain government bodies and charities that are not covered under the Fair Work Act. These entities are instead governed by state-specific industrial relations laws. Prior to lodging any claim with the Fair Work Commission, it is important to confirm that you are covered under the Fair Work Act.
Functions of the Commission
The Fair Work Commission has a President (Justice Adam Hatcher), a Vice President (J Catanzariti), a number of Deputy Presidents, Commissioners and conciliators. The General Manager reports to the President and is responsible for administration, a position that replaced the Industrial Registrar under the previous Australian Industrial Relations Commission.
The key features of the Fair Work Australia system are:
- 11 minimum National Employment Standards. This includes such entitlements as the maximum number of weekly hours that an Australian employee can work. As well as how much annual leave they can receive.
- Awards that apply nationally for specific industries and occupations.
- The national minimum wage.
- Protection from unfair dismissal.
Awards, together with the National Employment Standards and the national minimum wage, make up a safety net of entitlements for employees covered by the Fair Work system. The Fair Work Ombudsman is often confused with the Fair Work Commission or Fair Work Australia. The Fair Work Ombudsman essentially deals with the following:
- Offering people accurate and timely information about Australia’s workplace relations system.
- Educating people working in Australia about fair work practices, rights and obligations.
- Investigating complaints or suspected contraventions of workplace laws, awards and agreements.
- Litigating to enforce workplace laws and deter people from doing wrong in the community.
- Building strong and effective relationships with industry, unions and other stakeholders.
Fair Work Commission can’t give legal advice
In contrast, the Fair Work Commission can’t give legal advice and does not enforce minimum pay and award entitlements. Instead, they are the independent government body to which you lodge your complaint. The Fair Work Commission has the power to:
- Deal with applications relating to ending employment including unfair dismissal, unlawful termination or general protections.
- Deal with applications for an order to stop bullying at work deal with applications for an order to stop sexual harassment at work.
- Make orders about industrial action, including strikes, work bans and lock outs provide mediation, conciliation.
- In some cases, hold public tribunal hearings to resolve various individual and collective workplace disputes.
- Make orders to facilitate enterprise bargaining (including orders for ballots on protected industrial action and good faith bargaining). And to deal with bargaining disputes.
- Make workplace determinations in certain circumstances in which enterprise bargaining parties have been unable to reach agreement.
- Issue orders to stop or suspend industrial action.
- Deal with disputes about stand downs. And;
- Promote cooperative and productive workplace relations and prevent disputes.
Unfair Dismissal Applications under Fair Work Australia
Over 40% of applications made to the Fair Work Commission are related to claims of unfair dismissal. The Fair Work Commission defines an unfair dismissal as a dismissal that is “harsh, unjust or unreasonable.” A dismissal is deemed as so if it meets a set of criteria. When presiding over a matter, the Fair Work Commission does not only assess the question of fairness as to why the employee was dismissed. They also look into how they were dismissed and whether the employee was afforded procedural fairness.
This means that an employer may have a legitimate reason to dismiss their employee. However, if the dismissal itself was not procedurally fair, it may still be deemed to be “harsh, unjust, or unreasonable”. When considering procedural fairness, the Fair Work Commission will make its determination based on three key factors:
- If allegations were communicated to the employee in adequate detail.
- If the employee was allowed to respond to the allegations to explain their side of the story.
- Whether or not the employee’s response was taken into account before the termination was executed.
Who can make an unfair dismissal claim with Fair Work Australia?
In order to initiate an unfair dismissal claim with the Fair Work Commission, an employee must satisfy specific requirements. These criteria include the following:
- The employee must file their unfair dismissal claim with the Fair Work Commission within 21 days of their termination.
- The employee must have been employed by an organisation that falls under the National Workplace System.
- The employee must have already been dismissed by their employer.
- The employee must have worked for their employer for a minimum of 6 months. Or 12 months if the employer is a small business (with fewer than 15 employees).
- If the employee is classified as a casual worker, they must have been employed on a regular and systematic basis. They must also reasonably believe that this employment would continue.
- The employee’s earnings must be below the high-income threshold. As of 1 July 2022, the high-income threshold stands at $162,000.
Promoting positive relations between employee and employer
In the interest of promoting positive relations between employee and employer, the Fair Work Commission arbitrates conciliations. A conciliation is the initial step in the resolution process between an employee and their employer. It is a voluntary exercise that provides the opportunity for the two parties to have an informal discussion before the case is listed for a formal hearing. According to Fair Work Australia, 78 per cent of unfair dismissal claims reach a resolution during conciliation.
Fair Work Australia conciliations explained
Generally, a conciliation takes place for around an hour and a half. However, in some cases they can last for a day or longer. The aim of a conciliation is to give both the employee and employer the chance to come to an agreed settlement without the need for a formal hearing. It provides a critical avenue to establish the facts related to a dispute. And to determine which party may be right or wrong.
A conciliation is hosted by an independent conciliator who is a representative of the Fair Work Commission. They do not represent or advocate for either employees or employers. Their role is simply to assist the two in reaching an agreement. While the conciliator will be an independent party to the discussions, they do play an active role in ensuring the proceedings occur in the most beneficial fashion for all involved. Specifically, the role of the conciliator is to:
- Actively help the parties to reach a resolution.
- Lead discussions and provide guidance.
- Explore the issues.
- Challenge views expressed, explore alternatives and comment on possible outcomes.
If the conciliation process is successful in reaching an agreement between the two parties, they will both sign a settlement. This is a written legal document detailing the agreement reached. A settlement commonly consists of an apology from the employer. Or the employee being reinstated to their former role. Or the employer receiving financial compensation from their employer.
Fair Work Australia hearings & conferences
If a conciliation is unsuccessful in resolving the issue, then the case will proceed to a formal Fair Work Australia conference or hearing. That is, unless the employee discontinues the application. A conference or hearing is similar to a court hearing.
A Fair Work Commission conference takes place in private. Only the employee, employer and Fair Work Commission members are in attendance. However, Fair Work Australia will still communicate the reasons for its final decision to the general public.
A Fair Work Commission hearing is held in public and is generally a more formal affair than a conference. It is only resorted to if deemed necessary. Conferences and hearings can help decide if a dismissal was unfair or not. However, it is often preferable for both parties that any unfair dismissal issues are resolved prior to a hearing or conference. This is because the process requires extensive preparation and requires representation for both parties. Gathering key witnesses and evidence, as well as understanding relevant laws takes considerable time and effort.
Appearing at the Fair work Commission
When appearing at a Fair Work Commission conference or hearing, be careful. An employer will generally take the approach of see no evil, speak no evil, hear no evil. There is an assumption made by many employees that Fair Work Australia is there for them. However, this is not entirely the case. Whilst the Fair work Commission is helpful, it’s not just there to help you reach an outcome, it exists for everybody. It must remain objective, and therefore if the employee is in the wrong, it will take the side of the employer.
How to act when appearing at the Fair Work Commission
There are established standards for the conduct of all people attending a Fair Work Australia hearing or conference. The standards help the Fair Work Commission to provide fair hearings for all parties. And they ensure that Fair Work Australia can adequately enforce its authority.
Providing fair hearings involves allowing all parties to put their case forward. And to have their case determined impartially and according to law. The Fair Work Commission and all parties appearing before it, including representatives, have responsibilities to each other to ensure a fair hearing for all participants.
When coming to the Fair Work Commission:
- It is important to arrive early for the conference or hearing because proceedings begin on time.
- Notify the Fair Work Commission staff upon arrival by approaching them in the hearing or conference room.
- If delayed, it is important that contact is made with the appropriate Fair Work Commission staff before the hearing is due to start.
- Switch off your mobile phone or other electronic devices in the hearing or conference room.
- Address the Member of the Commission by his or her title. For example, Deputy President or Commissioner.
- In a hearing, stand when addressing the Member of the Commission or to question a witness.
- Bring enough copies of documents. This is to ensure that everyone involved can have a copy. For example, you might bring three copies; one to keep, one for the other party and one for the Member.
Fair Work Australia unfair dismissal remedies
If the Fair Work Commission finds that an employee has been unfairly dismissed, it will generally order the reinstatement of the employee. Or it will order the employer to pay the employee financial compensation. However, Fair Work Australia orders such remedies on a discretionary basis. Therefore, even if an employee has been found to have been unfairly dismissed, it is not a certainty that they will benefit from a remedy.
Reinstatement entails ordering the employer to rehire the employee in the job that they occupied just prior to their dismissal. It can also mean rehiring the employee, but placing them in another role that is no less favourable than the one they had just prior to being dismissed.
Sometimes reinstatement is not possible. For instance, when the trust and confidence between the employer and employee has been irreparably damaged. Fair Work Australia can then decide to award financial compensation to the employee. The amount that can be awarded is capped. Financial compensation will be the lower of:
- Half of the employee’s annual wage. Or;
- The compensation cap, which in 2023 is $79,250
For successful unfair dismissal claims, the median amount of compensation awarded by the Fair Work Commission is $8,704.
Fair Work Australia General Protections claims
The Fair Work Commission also provides the ability to make General Protections claims. This kind of claim does not impose such extensive eligibility criteria as unfair dismissal claims. General Protections claims are open to not just employees but also prospective employees and independent contractors. Employees also do not need to have satisfied a minimum employment period, like with unfair dismissal claims.
A General Protections claim is made with Fair Work Australia if your employer took adverse action against you. Adverse action covers a range of actions, including being dismissed or prejudiced by your employer. Or if your employer altered your employment to your detriment. Adverse action can also encompass discrimination due to your sex, sexual orientation, race, religion or other protected characteristic.
The General Protection provisions
A General Protections claim can be made to Fair Work Australia if your employer has taken adverse action based on an unlawful reason. These unlawful reasons are outlined in the General Protections provisions of the Fair Work Act 2009. They include if the employee:
- Exercised, or did not exercise, a workplace right. For example, the right to being safe in the workplace by making a bullying complaint about their boss. Or the right to take action through the Fair Work Commission.
- Was discriminated against for a protected characteristic.
- Exercised their freedom to associate or take part in lawful industrial activities. For example, taking part in a lawful protest organized by their union.
- Was not able to attend work for a limited time period due to illness or injury.
- Was the victim of a sham arrangement by their employer. For instance, being employed for a contract role, but being forced to sign an employment contract.
Fair Work Australia’s process for General Protections claims
When an employee makes a General Protections claim, Fair Work Australia sends a copy of the claim to the employer. They are then provided with seven days to respond to the claim. Like unfair dismissal claims, the Fair Work Commission will then organise a conciliation between the employer and employee. This typically takes place five to 10 weeks after submission of the General Protections claim. The aim of a conciliation is for the parties to come to an agreement or settlement. Examples include:
- Receiving an apology from the employer.
- The employee is permitted to resign by the employer. This allows the employee to avoid the stain of a dismissal from being on their record. Sometimes, an employer may even agree to provide a reference for the employee.
- The employee being reinstated to their job.
- The employee is paid the entitlements they are owed.
- The employer pays the employee a financial settlement. According to Fair Work Australia, the average settlement in more than 40 per cent of agreements is $4,000. And in 75 per cent of cases it is less than $10,000.
- Both the employer and employee agree to keep the details for the case private and to refrain from criticising each other.
- Both the employer and employee agree not to take any other legal action against the other party.
Proceeding to arbitration or court
If the conciliation does not end with both parties coming to a settlement or agreement, Fair Work Australia will issue the employee with a certificate. This is issued in 25 per cent of General Protections cases. The certificate outlines that both parties have failed to resolve the case. The parties can then ask Fair Work Australia to decide the case in arbitration. This could involve a conference or formal hearing.
The other option available is for the employee to take their General Protections case to another court. This would either be the Federal Circuit and Family Court of Australia (Division 2). Or the Federal Court of Australia. The court will then hear the case and decide on a ruling.
Fair Work General Protections remedies
If a Fair Work Australia arbitration rules that an employer took adverse action against an employee, it could order the employer to do one or more of the following:
- Reinstate the employee to their former role.
- Pay the employee financial compensation.
- Pay the employee their lost remuneration.
- Continue the employee’s employment with the employer.
If a General Protections claim goes to court, and it is ruled that the employer took adverse action, the court can order the employer to pay the employee financial compensation. The amount awarded to the employee can also include compensation for non-economic loss, such as hurt, humiliation and distress.
Unlike with unfair dismissal cases, financial compensation for a General Protections claim is not capped. This is why we have seen employers ordered to pay upwards of $5 million in compensation.
Pros and Cons of Fair Work Australia
When lodging an application in the Fair Work Commission, there are often time limitations which can be problematic for some applicants. For instance, unfair dismissal and general protections applications must be lodged 21 days from the date of dismissal. Claims beyond the 21 days are rarely accepted and only in exceptional circumstances. This may disadvantage applicants as they may be unable to secure an appointment for legal advice within the 21-day timeframe.
Since the Commission cannot provide advice, it is important that all applicants have the opportunity to seek legal advice. Nevertheless, legal advice is rarely free and so there should be a free legal advice service and representatives that can be accessed for disadvantaged applicants.
The 21-day limit for Fair Work Australia claims does not give employees much time to act. Especially when compared to other claims in similar jurisdictions. For example, to lodge a discrimination claim to the Anti-Discrimination Board of NSW, the time limit is 12 months. This more accurately reflects the time needed by an applicant to seek legal advice and make a workplace claim.
Unfair dismissal and General Protection claims must be lodged within 21 days of termination
Currently, opportunities to extend the time limit for making an application are extremely limited. Fair Work Australia’s reluctance to grant time extensions fails to take into account the difficulties faced by dismissed employees. The Fair Work Commission has consistently applied a narrow interpretation of section 366 of the Fair Work Act, which provides for an extension of time in exceptional circumstances. This means that out of time applications are rarely accepted.
Why the 21-day limit is strictly enforced
If you want an idea of how strict this 21-day time limit is, you just have to look at past decisions made by Fair Work Australia. In 2021, a worker had his unfair dismissal claim rejected because he submitted it just one minute late. The worker waited literally until the last minute to lodge his claim online, doing so at 12.01am.
The worker pleaded to the Fair Work Commission that he had submitted late due to a number of reasons. This included his mental health issues and confusion around the date of his dismissal. However, the Fair Work Commission did not have any sympathy for the worker. It rejected his unfair dismissal claim, with the Fair Work Commissioner stating:
“While the application is only one minute late, there remains a high hurdle for an extension of time and the majority of considerations are not in [the worker’s] favour.”
Floodgates to historical claims
There’s good reason why Fair Work Australia only very rarely allows for late claims. And why it won’t extend the 21-day time limit beyond a month or so. This is because a longer time period may open the floodgates for an unprecedented number of applications. Not to mention because it could also cause unfair dismissal and General Protections disputes to drag out for exceedingly long periods of time. After all, a hearing or arbitration process can often take months.
One big reason for the 21-day time limit is that ensures the facts surrounding a dismissal are fresh in the employee’s mind. That way, they can easily recall the facts during their tribunal hearing. Another benefit of the time limit is that the employee will generally be allocated a conciliation date with the Fair Work Commission within four to six weeks of filing a complaint. This is of significant benefit to clients who wish to deal with their workplace applications quickly and move on with their lives.
Despite the potential limitations, the Fair Work Australia system is usually a low-cost jurisdiction. General Protections applicants enjoy a ‘cost free’ jurisdiction in accordance with section 570 of the Fair Work Act. For those who are considering taking their sexual harassment claim beyond conciliation, the risk of adverse costs orders is an important factor to consider.
Unlike claims brought under the Sex Discrimination Act, the Fair Work Act provides that parties generally must bear the costs of bringing proceedings on their own, even if successful. Under the Fair Work Act, a party will only be ordered to pay the costs of the other side if they instituted the proceedings vexatiously. Or without reasonable cause or if their unreasonable act or omission caused the other party to incur costs.
Lastly, the Fair Work Act creates a shifting or reverse onus of proof whereby the onus is on the employer, rather than the employee. This reverse onus of proof applies across different types of applications:
- In unfair dismissal claims, the onus is on the employer to demonstrate the dismissal was fair and just.
- In general protections applications, the onus is on the employer to establish why a person was not adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.
A reverse onus goes some way toward reversing the inherent power imbalance that exists between employers and employees. It also helps address the fact that it is generally the employer who holds the information relevant to the grounds of a complaint made by an applicant.
Conclusion to Fair Work Australia
I hope this article brought some clarity to the role of the Fair Work Australia regime, which at times can be hard to understand. Let’s be honest; you rarely get dismissed or need workplace advice. But it’s still important to make it your business to know what your employment rights are. You never know when this knowledge will come in handy.
We at A Whole New Approach are here to give you free advice, expert representation, and to get the best outcome. We are proud of our staff and the successful outcomes we get for our clients. In the past 20 years, we have assisted over 16,000 Australian workers to take action through Fair Work Australia.
If you can through our web site and blog articles, it is clear that we know what we are talking about. We don’t walk away from the hard topics. If you have faced abandonment of employment issues, were sacked or forced to resign, had your rights violated, or experienced issues while on your probation period, call us today.
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