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General Manager's report
adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
The past year has seen the completion of the Future Directions change initiatives. Many of these initiatives respond to the shift in the work of the tribunal towards individual matters, with a greater number of employees and employers who are unfamiliar with the tribunal's jurisdiction and processes. Their need for information and assistance is often different and greater than parties who are more familiar with the tribunal.
We have continued over the last year to find ways to better meet these diverse needs, including from our new website, improved information and tools, and by providing consistent, targeted information – whether enquiries are made online, through telephone calls or visits to our offices, or through our administrative processes, including conciliation. Whilst we cannot provide legal advice, we equip our frontline staff so they can provide consistent and useful information to help parties navigate through the process they have either commenced or are responding to. By investing in new technology, such as our new website and the recent introduction of a new capacity to lodge electronically, staff are freed up to provide more valuable assistance.
The new financial year begins with some uncertainty, with the prospect of legislative reform affecting the functions regulating federally registered unions and employer organisations. It may be that current functions are transferred to a new entity – the proposed Registered Organisations Commission. Whether the Commission maintains these regulatory functions or they are taken on by a new agency, I am confident that the work that has been undertaken to transform the regulation of organisations provides a very sound foundation to build upon.
It has been four years since the investigation involving the Health Services Union and Mr Thomson concluded. Only one investigation, in 1998, had ever been undertaken prior to that. I have previously acknowledged that, in my view, that investigation took too long and that we were not as effective a regulator as we could have been.
We have come a long way since 2012. Managing largely with the same resources, we have adopted a risk-based approach to compliance and have commenced and completed 29 formal inquiries and investigations. We have commenced several proceedings in the Federal Court of Australia, and been successful on each occasion with significant penalties and compensation imposed. We have worked to build our internal capability, provided better tools and information to make compliance easier, and worked with organisations and auditors to improve compliance. These reforms have all borne significant fruit with greatly improved compliance levels. Of course, there always remains more to be done.
In the past year we also received the bulk of the referrals relating to civil matters from the Royal Commission into Trade Union Governance and Corruption (Trade Union Royal Commission). This work is being dealt with as efficiently as possible within the Commission's existing budgetary resources.
In financial terms, the year ahead is likely to be particularly challenging. The Commission's funding and average staffing levels have been reduced as a result of the abolition of the Road Safety Remuneration Tribunal. At the same time, other work, such as that associated with the referrals from the Trade Union Royal Commission, has required additional staffing resources. To manage the impact of these factors in the year ahead, a number of staff accepted voluntary redundancies at the end of the year. Consequently, in 2015–16 the Commission ran a funded loss of $211,000, or less than 0.3 per cent of our revenue from government.
The work of the Commission touches the lives of most Australian employees and employers. I am very proud of the work of our staff across the tribunal – from dealing with enquiries, conciliating applications, supporting the four yearly review of modern awards, the annual wage review and other matters before the Commission, performing regulatory functions, supporting Commission Members, processing and case managing applications, maintaining systems, support services and our offices, and coordinating our engagement with the community. Commission staff are committed to improving the services the Commission delivers to the Australian community, and I sincerely thank them for their hard work and commitment throughout the year.
Bernadette O'Neill