Annual Report 2016-17

Clients and stakeholders

 

https://www.fwc.gov.au/documents/documents/annual_reports/ar2017/fwc_annual_report_1617_part_2.pdf

The Commission's work directly or indirectly affects most of Australia's employees and employers and, as a consequence, the Commission has a diverse group of clients and stakeholders.

In broad terms, the Commission has jurisdiction over a national system that covers:

  • all private sector employers and employees in all states and territories except Western Australia (where private sector coverage is limited to constitutional corporations)
  • the Commonwealth public sector
  • all employers and employees in the territories and in Victoria (with limited exceptions in relation to some state public sector employees)
  • some public sector and local government employment in other states.

The Commission's anti-bullying jurisdiction extends to a broader range of workers (in addition to employees) when they are at work in constitutionally-covered businesses.

In focus

WORKPLACE ADVICE CLINICS

Workplace advice clinics (WACs) are free legal advice services facilitated by the Commission. The first clinic was established in our Melbourne office in May 2016; further clinics have since been established in Sydney and Brisbane.

WACs are a joint initiative of the Commission and legal services in each state, including Springvale Monash Legal Service and Job Watch in Melbourne, Legal Aid New South Wales and Marrickville Legal Centre in Sydney, and Legal Aid Queensland in Brisbane.

The clinics operate via a booking system, and are open to low-income individuals who have made or intend to make an application before the Commission, or are seeking advice about an employment-related issue. Lawyers supplied by the legal services provide confidential advice in sessions lasting up to an hour.

In 2016–17, the Melbourne clinic assisted 271 clients and the Sydney clinic assisted 186 clients. The Brisbane clinic, which commenced in April 2017, assisted 81 clients in the remainder of the reporting period.

The self-represented individuals who receive advice from the clinics are among those most likely to face barriers to accessing legal services. Daniel Bean, a managing lawyer at Springvale Monash Legal Service, observed:

'The partnership with the Fair Work Commission has allowed us to bridge a gap with clients that otherwise would have been without necessary guidance and advice. The clinic has assisted many vulnerable clients, including newly arrived migrants, asylum seekers, low-income earners and clients with disabilities.'

Ian Scott, from Job Watch, observed that:

'Most, if not all, the people I see at the WAC are genuinely relieved to be able to obtain legal advice and assistance regarding their employment law situation. Most people have multiple legal options and very short time limits. For these people, being some of the most vulnerable and disadvantaged workers, e.g. visa workers, the WAC provides timely, efficient and effective access to justice.'

WACs were also established to promote the efficient use of resources within the Commission. When an applicant's claim falls outside the Commission's jurisdiction, WAC lawyers can quickly re-direct it to the correct forum. On this subject, Bridget Akers, the coordinating lawyer for the WAC at Legal Aid New South Wales, said:

'... WAC lawyers are able to provide holistic advice to clients about their workplace rights. This means that when clients have a claim that could be lodged at the Fair Work Commission, WAC lawyers can assist the client to draft and file that claim within time. However, WAC lawyers can also provide advice and assistance to clients whose claims are more appropriately lodged in another jurisdiction. This avoids the client being frustrated by being told that he or she is in the wrong forum and reduces the work load of the Commission in having to deal with claims that could be more appropriately dealt with in another jurisdiction.'

Lawyers at the clinics are also able to advise clients where their claims are unmeritorious or unlikely to succeed. By reducing applications with little or no prospect of success, fewer employers are required to participate in Commission proceedings as respondents.

The advice and support provided at clinics helps people who do choose to pursue applications before the Commission to confine their applications to the key issues and legal tests, and to develop reasonable expectations around the outcomes of conciliations and arbitrations.

Feedback provided by WAC clients has been overwhelmingly positive. Comments provided at the conclusion of clinic appointments include:

'I found it a relief to be able to speak to someone who could offer professional advice. It has removed a great deal of stress and given me confidence about the direction I am taking. Thank you very, very much.'

'I needed objective advice to assist me to understand and interpret my current situation and I received it.'

'I was able to explain my situation. The team was very good. The session helped me in understanding my present situation (legal and workplace rights and unfair dismissal). I believe now that I got a clear picture of where I stand and what actions to consider when there is an adverse situation at work.'

'I came to know about the general protections and work rights. Also it is a free service, which helps people like me—unemployed at certain circumstances.'

Justice Ross, the Commission President, has said:

'The Commission is very proud of the work that the legal services have performed through the workplace advice clinic. As a pilot run in Melbourne, the clinic has been extremely successful, bringing significant benefits to its clients and to the Commission. We are now seeing that same success replicated in Sydney and Brisbane, where further clinics have only recently been established.'

The Commission will review the operation of the WACs in 2017–18, and look to further expand the network of clinics in partnership with legal services across Australia.

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A Commission staff member providing information on how to access the Pro Bono Program.

In focus

PRO BONO PROGRAM

The right to a fair hearing is deeply ingrained in Australia's law and legal culture. A fair hearing is one where the parties are afforded procedural fairness and are given an equal opportunity to participate effectively in the hearing of their matter. In the case of the Commission, the need to provide a fair hearing is reinforced by its statutory duty under s.577(a) of the Fair Work Act to exercise its powers in a manner that is 'fair and just'.

For courts and tribunals seeking to ensure a fair hearing, self-represented parties present a particular challenge. Without representation, individuals can face a number of disadvantages in navigating the complexities of a legal system. Self-represented parties may lack knowledge of the laws that will decide their case, and so may not know what the decision-maker will take into account in order for the self-represented party to succeed. Being unfamiliar with rules and procedures, self-represented parties can be disadvantaged by needing to spend more time and energy learning and navigating procedures when compared with represented parties. At a hearing, a self-represented party may also be disadvantaged by a lack of objectivity owing to the party's closeness to his or her own case.

Establishment

In recognition of the need to improve self-represented parties' access to legal advice, the Commission established a pilot Pro Bono Program in 2013, to provide assistance to eligible individuals and small businesses. The pilot program was confined to providing legal advice about jurisdictional hearings in unfair dismissal matters after an employer had raised a jurisdictional objection.

The pilot was established in Victoria in partnership with 14 law firms and operated for approximately 12 months, delivering legal advice to eligible applicants and respondents. The pilot was reviewed by the RMIT University Centre for Innovative Justice (CIJ). After consulting both the law firms and clients who had participated in the pilot, the CIJ recommended that the program continue and made some recommendations for improvement.

Current operation

Today, the Pro Bono Program operates with the assistance of firms who participated in the pilot. A number of other law firms and the Australian Industry Group (Ai Group) also joined the program during 2016–17. The program remains focused on providing legal advice in relation to jurisdictional objections in unfair dismissal proceedings and is available to both unrepresented applicants and respondents who meet a basic means test.

To connect parties to the program, the Commission's Unfair Dismissal Conciliation Management Team provides information to eligible employee applicants and employer respondents. Law firms are rostered to contact parties who request pro bono advice. While the program only requires them to provide an hour's advice by telephone or in person, law firms will often provide further services at their discretion, including occasionally representing parties at hearings.

The Pro Bono Program has a high rate of uptake. In 2016–17, of the total number of eligible parties, 63% requested and received support through the program. Of the parties who received pro bono assistance, 87% were employees and 13% were employers.

The recipients of pro bono assistance, some of whom are highly disadvantaged, have provided very positive feedback about the program. One client wrote:

'I was given succinct and very wise help and advice, well within the limits of the solicitor's remit. She was exceedingly polite and straightforward and steered me in the right direction.'

For respondent small businesses, the program also provides vital support. Presently, most respondent clients are provided advice by Ai Group. Chris Sealie from Ai Group observed:

'Ai Group Workplace Lawyers have been an enthusiastic supporter of the Fair Work Commission Pro Bono Program. Ai Group Workplace Lawyers have participated in the training programs run by the Commission as well as the Pro Bono Program itself. Both the training received and the overall experience of being involved in the Pro Bono Program has been extremely positive for both our team of Workplace Lawyers and in particular small business clients who have participated in the program.'

For the firms, the Pro Bono Program gives junior lawyers the opportunity to gain valuable experience pursuing a matter in the Commission's jurisdiction. Michaela Moloney from K&L Gates commented:

'The Fair Work Commission Pro Bono Program gives K&L Gates the chance to provide assistance to the public and support the Commission. As a firm that works predominantly for employers, our lawyers are given a unique opportunity to consider matters from the applicant's perspective. The type of matters that come to us through the program mean that our junior lawyers can have hands on involvement in providing advice to parties who may be vulnerable and might not otherwise have access to lawyers. We are very pleased to support the program.'

Abigail Cooper of Ashurst said:

'Having participated in the program since its inception, our team has seen the benefits for both clients and lawyers of participating in the program. A number of our lawyers have had their first opportunity to appear in the Commission through the Pro Bono Program and have gained confidence and experience which is readily applicable to matters for commercial clients. We have acted for a number of applicants in resisting jurisdictional objections and in other cases have assisted applicants with obtaining an alternative resolution of their concerns.'

Dru Marsh of Lander & Rogers said:

'The program is an easy sell to our pro bono committee: it meets an important access to justice need, assists the Commission in its work and enriches the skills and experience of the enthusiastic junior lawyers.'

By equipping parties to more effectively represent themselves, the Pro Bono Program also helps the Commission to run matters more efficiently. On this subject, Deputy President Clancy, head of the termination of employment panel, commented:

'Jurisdictional hearings can require the resolution of relatively technical issues, and so it can benefit parties considerably if they are able to obtain legal guidance. The advice given to self-represented parties through the program often has a positive impact on the conduct of hearings, with parties better informed about the relevant issues and the way in which they need to address them.'

Following on from a second positive review of the program by the CIJ in September 2016, the Commission will consider how the program can be expanded to operate beyond Victoria.

Image: A Commission staff member provides information on accessing the Pro Bono Program.

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Presenters at the small business engagement program event.

In focus

SMALL BUSINESS CONSULTATION AND ENGAGEMENT

The Future Directions program, launched in 2012, was designed to significantly improve the Commission's delivery of services to be more user centred.

Our improvements in service delivery have been particularly focused on the needs of self-represented employees and employers who do not have legal knowledge or experience and are often unfamiliar with the Commission and its procedures.

Many of the inexperienced employers who come before the Commission are small businesses, making our engagement with them particularly important. While we have focused resources on improving the accessibility of our services to small businesses, we recognise that our processes can be further improved to minimise the compliance and administrative burden on small businesses.

In 2016–17, the Commission undertook user-design workshops and focus groups with small employers to identify further ways to improve our processes, procedures and information resources, especially in unfair dismissal matters. These initiatives are expected to provide the Commission with some practical suggestions about how to better meet the needs of small business, which will be considered in the next reporting period.

Image: Small business engagement event hosted by the Australian Hotels Association.

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