Fair Work Australia – Who are they?
This is the term commonly used by the public, people using search terms to describe the Fair Work Commission.. Australia’s national workplace tribunal. According to the Google statistics, more people search Fair work Australia, than Fair work Commission or FWC. This is main reason I thought I would write a article on it, to minimize the confusing and bring some clarity to the situation.
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) (FW Act). 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. With 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 FW 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 FW 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 FW Act and are government by state-specific industrial relations laws. Prior to lodging any claim with the Fair Work Commission, it is important to confirm you are covered under the FW Act.
Fair Work Australia’s Functions
Since the Commission’s introduction in 2004, The FWC came into established on the 1/7/2009. All FWC members were previously members of the Australian Industrial Relations Commission (AIRC). The FWC has a President (Justice Iain JK Ross AO), two Vice Presidents, 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 AIRC.
The key features of the Fair Work Australia system are:
- 11 minimum National Employment Standards
- 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 deal 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.
The Fair Work Commission cannot give legal advice
In contrast, the Fair Work Commission cannot give legal advice and does not enforce minimum pay and aware entitlements. Instead, they are the independent government body to which you lodge your complaint. The 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 dismissals. The Fair Work Commission defines an unfair dismissal as a dismissal that is “harsh, unjust or unreasonable” after assessing 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. But they also look into how they were dismissed and whether the employee was afforded procedural fairness.
What this means is that even though an employer may have a legitimate reason to dismiss their employee. 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 put to the employee in adequate detail if the employee was allowed to respond appropriately. Whether or not the employee’s response was taken into account before the termination was executed.
Promoting positive relations between employee and employer
In the interest of promoting positive relations between employee and employer. The Fair Work Commission provides the opportunity for the two parties to have an informal conciliation before the case is listed for a formal hearing. This is so that both sides have the chance at coming to an agreed settlement without the need for a court hearing. That being said, the conciliation is hosted by an independent conciliator who is part of the Fair Work Commission.
They do not represent or advocate for either employees or employers. With their role only 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 unsuccessful in resolving the issue, then the case will proceed to a formal conference or hearing. This is similar to a court hearing, unless the employee discontinues the application. It is often preferable for both parties that any unfair dismissal issues be resolved prior to a hearing. As the process requires extensive preparation and requires representation for both parties.
Appearing at the Commission
There are standards for the conduct of all people attending a hearing or conference before any body of Fair Work Australia. The standards help the Fair Work Commission to provide fair hearings for all parties. Enforcing the authority of the Fair Work Australia regime. Providing fair hearings involves allowing all parties to put their case forward. To have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants.
When coming to the Commission:
- it is important to arrive early for the conference or hearing because proceedings begin on time.
- notify the 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 Commission staff before the hearing is due to start
- switch off mobile phone or other electronic devices in the hearing or conference room
- address the Member of the Commission by his or her title (eg 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. So everyone involved can have a copy (eg three copies: one to keep, one for the other party and one for the Member).
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, the unfair dismissal and general protections applications have a strict 21 days from the date of dismissal, for a claim to be lodged. 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.
Whilst Fair Work Australia make it clear that representation isn’t required for your claim to be successful. 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.
We note that in other similar jurisdictions, including to lodge a discrimination claim to the Anti-Discrimination Board NSW. The time limit to make a claim is 12 months, which 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 in 21days of termination
Currently, opportunities to extend the time limit for making an application are extremely limited. This fails to reflect the reality of the difficulties faced by dismissed employees. In becoming aware of the FWC general protections application process and accessing legal advice. The Fair Work Commission has consistently interpreted section 366 of the FW Act which provides for an extension of time in exceptional circumstances narrowly. Meaning that out of time applications are rarely accepted.
However, extending the 21-day time limit beyond a month or so, may open the floodgates for an unprecedented number of applications. In addition, given the hearing or arbitration process could take months. The time limit ensures the dismissal is fresh in the applicants mind and details can be easily recalled during the tribunal hearing. A positive aspect of the time limit is that an applicant will generally be allocated a conciliation date with the FWC within 4 to 6 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.
Low cost jurisdiction
Despite the potential limitations, the Fair Work Australia system is usually a low-cost jurisdiction. General protection applicants enjoy a ‘cost free’ jurisdiction in accordance with section 570 of the FW Act. For those complainants 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 SDA, the FW Act provides that generally, parties must bear the costs of bringing proceedings on their own, even if successful. Under the FW Act, a party will only be ordered to pay the costs of the other side if they instituted the proceedings vexatiousily. Or without reasonable cause or if their unreasonable act or omission caused the other party to incur costs.
Lastly, the FW Act creates a shifting or reverse onus of proof whereby the onus is on the employer. Rather than the employee 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 and 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 bought some clarity to role of the commission. It can be complex, lets be honest you rarely get dismissed, or need workplace advise. Make it your business to know what your employment rights are. What we are here for to give your free advice, to get representation, to get the best outcome. At A Whole New Approach P/L we are proud of our staff and outcomes we get get for our clients. Scan through our web site, our blogs. It is clear we know what we are talking about, we don’t walk away from the hard topics. Abandonment of employment issues, sacked, forced to resign issues, call us today.
We are located in Victoria, however we work in every state.
Free call 1800 333 666
Another article that may be good reading for you on the Fair work Australia, click here
Read more on Fair work Commission general protections Click here
We still trust Fair work Australia protections click here
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.