Glossary of legal terms

An access period is part of the process to make or change an agreement. It must happen at the right time in the process. The employer must give employees specific information (or access to it) about the agreement and the voting process.

To adjourn an event, or to have an adjournment, means:

• to move a conciliation, hearing or conference to another time and place
• to delay it without setting a new date.

An affidavit is a document that may be evidence in a legal case. When a person makes an affidavit, they swear or affirm that the facts in their statement are true. They must do this in front of someone with the authority to witness the person signing the document

In the appeal process, an aggrieved person (or organisation) may apply to appeal. Aggrieved means they believe:

• the original decision affected their legal interests or rights
• they have a specific interest, for example because they are a union or employer association.

A person who alleges that they have been sexually harassed in connection with work

The name for enterprise agreements has changed over time, as the law has changed. Agreement-based transitional instruments (ABTI) is one example of an agreement made before the Fair Work Act 2009.

A person may say or allege that another person has done something. When they allege (or make an allegation) that their claim is true, they do this without providing proof.

In an enterprise agreement, a term may be ambiguous or uncertain if:

• the meaning is not clear
• people may understand it in two or more possible ways.

The annual wage review is the process to review and set minimum wages for employees in the national system. The process includes research, submissions and consultations.

A person can ask the Commission to review the decision of a single Member in a case. To do this, they ask for permission to appeal. The Fair Work Act has rules about why someone can appeal a decision.

The appellant is the person who asks for permission to appeal a decision. They are usually the person who was the applicant or the respondent in the original case.

An applicant is the person who starts a case by applying to the Commission.

An apprentice is a person who is learning a trade skill while they work in the trade. Usually, but not always, they are a young person. For example, they may learn to build while they do a building apprenticeship.

Arbitration is a formal process. Usually in arbitration the Commission hears from witnesses and considers evidence. Then it makes a final decision.

An Associate works in a Commission Member's office (chambers). They usually communicate with the people involved in a case, on behalf of the Member. Associates are employees of the Commission.

An award is a legal document that contains the terms and conditions of employment. Usually, awards cover people who work:

• in a specific industry (such as retail)
• in a specific occupation (such as pilot).

Awards modernisation was a process to review and update awards between 2008 and 2020. We call awards that were made or reviewed in this process ‘modern awards’.

Before employees can take industrial action, they must vote in a ballot. They name a ballot agent to organise the vote. Usually, the ballot agent is the Australian Electoral Commission.

Bargaining ‘in good faith’ means the people involved (bargaining representatives) follow the steps to make sure the process is fair and efficient.

We may issue a bargaining order to make the agreement process fair and efficient. A person can apply for an order if a bargaining representative is not following the rules.

A bargaining representative is any person that an employer or employee nominates when they make or vary an agreement. They can be an employer or an employee, or a union or industrial association.

All enterprise agreements must pass the 'better off overall' test. The terms and conditions must make the employee better off than the relevant award. If employees are not better off overall, the Commission cannot approve the agreement.

‘New BOOT’ is the better off overall test in the Fair Work Act as amended by the Secure Jobs Better Pay Act.

‘Old BOOT’ is the better off overall test that applied prior to the Secure Jobs Better Pay Act.

A carer is someone who provides care, support and assistance for a person who has a disability, a medical condition (including a terminal or chronic illness), a mental illness, or is frail and aged.

Casual loading is an amount casual employees receive on top of the base rate of pay. This is to make up for the benefits they do not receive, such as paid annual and sick leave. The casual loading is 25% in most modern awards.

When you work out a timeline, you only count whole days. A day is not a clear day if a relevant act or event starts or ends on that day (such as distributing information materials).

The name of enterprise agreements has changed over time, as the law has changed. ‘Collective agreement’ is one example of an agreement made before the Fair Work Act 2009.

Compensation is money an applicant may receive if they suffer a financial loss (such as lost wages). The person whose action caused the loss (such as employer if they fire an employee) pays the compensation.

The compensation cap is the most the Commission can order an employer to pay in an unfair dismissal case. The cap changes on 1 July each year and is set by the Fair Work Regulations.

A conciliation is a confidential and informal discussion between 2 sides in a case. They discuss issues and options ('conciliate') with help from a Commission employee or Member. They may reach an agreement or settlement without needing a formal hearing.

A conciliator is an independent person who helps two sides in a dispute reach an agreement. They discuss the issues and options in an informal and confidential conciliation.

A conference is a legal meeting (‘proceeding’), run by a Commission Member. This type of meeting is usually private so the general public is not allowed to watch.

An employer is a constitutional corporation if the business is:

• a financial corporation formed in Australia
• a trading corporation formed in Australia, or
• a foreign corporation (a corporation incorporated outside Australia) that does business in Australia.

Note: local governments in Queensland, New South Wales, South Australia, and Western Australia can be constitutional corporations, but are not national system employers. These workplaces may still be covered by the general protections, bullying and sexual harassment laws.

When we calculate compensation, we consider what will affect the employee’s finances, such as a higher or lower salary, or different benefits. These are contingencies and they may affect the amount of compensation we order.

In a court (such as the Federal Court or Federal Circuit Court), judges make decisions based on the law and facts of a case. The Fair Work Commission is a tribunal. It also makes decisions people must follow but is less formal than a court.

At the end of a case, one or more Commission Members can issue a decision. This is the judgement, based on the facts, evidence and laws. The decision usually includes the names of the people involved and explains the reason for the decision.

A determination is another term for an order. This is a formal ruling by a Commission Member after they hear a case. A determination often sets out what has to happen, by law, after a decision is made.

The Commission may give directions to parties involved in a case. These are instructions about the documents they need to provide. For example:

• what the documents must contain
• who must receive the documents
• the deadline to give a copy to us or someone else.

When you discontinue a legal case, you are formally stopping it ('withdrawing'). This action is a discontinuance. Your case ends when you discontinue it.

The Fair Work Commission can resolve disagreements or disputes about some workplace issues. This comes from the Fair Work Act and some enterprise agreements. This is the dispute resolution process.

An employee has an employment contract and receives a wage from their employer.

An employer organisation represents the interests of its members, who are businesses and enterprises. Employer organisations are registered under the Fair Work (Registered Organisations) Act 2009 (Cth). Some, but not all, employer associations are registered organisations.

Before a union representative can enter an employer’s premises, they must provide an entry notice. This contains specific information and is given to the employer 24 hours to 14 days before the planned visit. The representative must also have a valid right of entry permit.

An error of law can happen when a decision maker:

• misunderstands a legal principle
• applies the law wrongly.

For example, a decision maker may use the wrong criteria or ask the wrong question.

Evidence is information or documents that can prove something is, or is not, true. The Commission may accept evidence as part of a case. Usually, witnesses write statements, or give oral (spoken) evidence in a hearing.

A fixed term contract is a type of employment contract. It makes the contract clear, by providing:

• definite start and end dates or
• the length of the contract and the start or finish date.

When a contract reaches its end date, this is not a dismissal.

A genuine new business is a business, activity, project or undertaking that is new. The employer(s) have not yet hired the staff who:

• the agreement will cover
• are necessary for the business or activity to run.

Only a genuine new business can create a greenfields enterprise agreement.

An enterprise agreement for a new business is a greenfields agreement. Employers can only create a greenfields agreement if they have not yet employed the staff who:

• will be covered by the agreement
• are necessary for the business or activity to run.

A hearing is a formal, legal event where both sides of the case meet in front of one or more Members. A hearing is also known as a ‘proceeding’. Usually, hearings are open to the public.

The high-income threshold is a limit set by the Fair Work Regulations 2009. Employees who earn more than this limit are usually not eligible for protection from unfair dismissal under the Fair Work Act. The exception is if an award or agreement covers them.

A decision or action in the public interest has a benefit to everyone, not just to an individual. When the Commission considers whether a decision is in the public interest, it looks at what effect it may have on the wider community.

When you create an agreement, it may refer to material such as a policy for employees or the relevant award. This is incorporated material. It forms part of the agreement even if the agreement does not specifically contain the material.

An independent contractor has their own business and provides services to other people including employers. Usually, a contractor has an ABN and sends invoices after completing work to ask for payment.

An Individual Flexibility Arrangement (IFA) is a written agreement between an employer and the employee. The IFA can change some of the terms or conditions in their award or agreement. The IFA must make the employee better off overall.

Industrial associations provide services and information to their members. The term is often used as an alternative to 'union', 'employer association' or 'employer organisation'. Some are registered under the Fair Work (Registered Organisations) Act 2009.

In a general protections case, injury is a person’s action or behaviour that can cause harm. For example, under the Fair Work Act, someone may injure another person if they:

• do not give them their rights
• demote them to a lower job
• treat them differently.

In the context of the Fair Work system, an instrument can be an enterprise agreement, award or workplace determination.

In the national system, a junior is an employee who is under the age of 21. In many awards, juniors receive lower wages than adults.

Jurisdiction refers to what the Commission can and cannot do. The Fair Work Act sets out the Commission's power (jurisdiction) to deal with a dispute.

A person responding to a case may object to an application. They make a jurisdictional objection when they think the Commission does not have the power (jurisdiction) to deal with the case under the Fair Work Act 2009.

A labour hire worker is someone employed by a labour hire agency, also called a staffing agency or employment agency. The agency can hire the worker out to a host. The worker has a contract with the agency, not with the host.

A listing is the same as a ‘notice of listing’, which we send to people involved in a case. This has the time, date and location for a meeting or hearing. It can also include specific instructions or requirements.

During a dispute (often about wage rates), an employer may lock out their employees by:

• temporarily closing the business
• refusing to allow them to come to work.

The employer also refuses to pay its employees while they are not at work.

A bargaining representative may apply for a low-paid authorisation. This gives low-paid employees access to extra rights during bargaining for a multi-enterprise agreements. Rights include:

• bargaining orders
• low-paid workplace determinations.

An enterprise agreement is 'made' when a majority of eligible employees vote to accept it. Even after the agreement is made, it does not operate until we approve it.

A majority support determination is an order to make an employer start the bargaining process. A bargaining representative may apply when:

• an employer does not agree, or start to bargain AND
• the majority of employees want to start bargaining.

At the Commission, a matter is a case the Commission is dealing with.

The merits of the case are the facts presented by the 2 sides, and how the law applies to those facts. The Commission decides cases on their merits. It may also decide them on technical or procedural issues (such as whether an application is late).

An award contains the minimum terms and conditions for an industry or occupation. A ‘modern award’ is the same, but the award was created after 1 January 2010. A modern award and the National Employment Standards give employees fair and relevant entitlements.

The 11 National Employment Standards are in the Fair Work Act (Part 2-2). They are part of the minimum terms and conditions for all employees who are in the national system. They cover entitlements such as maximum weekly hours, different types of leave, and redundancy pay.

The National Minimum Wage Order contains the minimum pay rate and casual loading for employees who are not covered by an award or agreement. It also contains special wages for some employees.

Most, but not all, employees are national system employees. To know if they are part of the national system, we need to know:

• their location
• their work arrangement (for example permanent, casual, contractor, volunteer)
• their employer (for example private business, agency, government).

See Who the national system covers.

NERR is a Notice of employee representational rights as prescribed in the Fair Work Regulations.

‘New Genuine agreement’ requires the agreement making process to comply with the Statement of Principles and other genuine agreement requirements in the Fair Work Act as amended by the Secure Jobs Better Pay Act

Each enterprise agreement has a nominal expiry date. This date shows how long the parties expect the agreement to run (maximum 4 years). Agreements continue after this date until we approve an application to change or end them.

When we organise a formal meeting for a case, we send a notice of listing to the people involved. This has the time, date and location for the meeting or hearing. It can also include specific instructions or requirements.

The notification time is the start of the bargaining process for an enterprise agreement. It can be:

• the date the employer starts or agrees to start bargaining
• the date in a legal order to force the employer to start bargaining.

‘Old Genuine agreement’ requires the agreement making process to comply with the requirements of the Fair Work Act including the access period requirements prior to the Secure Jobs Better Pay Act amendments.

After a Commission Member hears a case, they may make an order. This is a formal written instruction about their decision. Anyone the order covers must do what it says, by law.

An application or response is out of time when it is late (misses the deadline). We may not accept documents that are out of time.

When someone applies to the Commission, the outcome is the end result of their application or case.

The outline of submissions is a written document. It should contain all the facts, information and evidence that someone wants to present to the Commission to support their case. We tell parties in a case if they need to write an outline of submissions.

An outworker is a contractor or employee who works at home or at a place that is not normally thought of as a business premises. This is different to a 'working from home' arrangement. They are common in the textile, clothing and footwear industry.

A paid agent is a person who charges or receives a fee to represent someone in their legal case. The paid agent is often an employee or officer of a union, employer association or peak council. They may also be a bargaining representative. They are not a lawyer.

A party is any person or organisation who is part of a case at the Commission. They may be an employee (often called the 'applicant') or employer (often the 'respondent'), a worker, union, or employer organisation.

When an employee works outside the standard hours in their award, their employer may have to pay extra. The extra money is penalty rates. Penalty rates may also apply if you work on weekends and public holidays such as Christmas.

An application for an order to stop bullying or harassment may contain a person named. This is the person the applicant says has been bullying and/or sexually harassing them at work.

Prejudice may mean:

1. doing something that has a real and harmful effect on one side. Examples include:
   • making a major change to an employee’s job
   • asking for a long delay to a hearing
2. bias or a lack of fairness in a process.

The Commission Member in charge of a case (‘matter’) is the presiding Member.

A principal is the legal entity that engages a contractor to do work for them under a contract for services. A principal and contractor do not have an employment relationship.

A private enterprise is a business owned and operated by private individuals for profit. It is not listed on the stock exchange and is not part of government or its agencies.

A protected action ballot is a secret vote by employees. Eligible employees vote to say if they want to take industrial action. This action is usually about the terms of a proposed enterprise agreement.

To work out whether someone's actions or effort were reasonable, we may consider:

• Has the person tried to do the best they can, without delay?
• Would the average person think the effort was enough in this situation?

When an organisation is registered, it means we have approved an application to register it. We do this under the Fair Work (Registered Organisations) Act. A registered organisation can be:

• an association of employers
• a union (association of employees)
• an enterprise association.

When a casual employee works on a regular or systematic basis, they have a similar roster or a similar pattern each time. They are part of the employer's ongoing schedule or plan.

In an unfair dismissal case, reinstatement means to give an employee their job back. The employer may have to reappoint or return the employee to:

• the job they held before they were dismissed OR
• a job that is at least the same in terms and conditions.

Two or more employers can only create a single enterprise agreement if they are related employers. This means they are:

• part of a joint venture or common enterprise OR
• related bodies corporate

A remedy is an action to make up for (compensate for) harm. The Commission can (but doesn't always) order a remedy. For example, if a dismissal was unfair, we may order the employer to:

• pay the employee what they owe or compensation
• give the employee their job back.

A representative is a person who acts for someone in a case. This could be a lawyer, a paid agent, a union, an employer organisation or someone else. Generally, a lawyer or paid agent must ask permission to represent someone in a hearing or conference before a Member.

A respondent is the person or organisation that has to respond to an application. They become a 'party' to the case when the applicant names them in the application. They can (or in some cases have to) respond to tell us their side of the story.

Union officials have the right to go into business premises in some situations. This is right of entry under the Fair Work Act. The official must have a permit and give notice before they can enter.

A scope order says which employers and employees are ‘in scope’ or covered by an agreement. A bargaining representative may apply for a scope order if they believe the agreement will not cover the right employees.

When someone serves a document, they deliver it to the person or representative on the other side of their case. This is a legal process. We tell the people involved who they must serve documents on, and when.

Settlement is an agreement to resolve a dispute or case. This usually happens after the two sides discuss and negotiate the ‘terms of settlement’ that they must follow.

Two or more employers can only create a single enterprise agreement if they are single interest employers. This means they are:

• part of a joint venture or common enterprise OR
• related bodies corporate OR
• part of a ‘single interest employer authorisation’ for the proposed agreement.

The law says you are a small business if you employ fewer than 15 people. This is the total number of individuals, not the full-time equivalent number.

This includes people who are:

• part-time
• full-time
• casual staff employed on a regular and systematic basis.

The definition is in the Fair Work Act 2009.

In a statement of service, an employer says how long an employee worked for them and what they did. A statement of service may be part of a settlement in an unfair dismissal case.

[definition to come]

Submissions may mean:

1. details of the evidence that someone will present to the Commission ('outline of submissions')
2. formal comments to the Commission about an application, such as a variation to an agreement or award.

A witness gives evidence about what they know, saw, heard or experienced. This is sworn evidence when they promise to tell the truth by 'swearing an oath’ on a religious text or by 'making an affirmation'. It can be verbal (in a hearing) or written.

In an award, a trainee is a person who is doing a formal traineeship. This is different from on-the-job training. In many awards, trainees are paid the National Training Wage.

We may ask for an undertaking when an employer's proposed enterprise agreement does not meet the Fair Work Act. The undertaking is legal commitment in writing to fix the issue. It becomes part of the agreement.

When we give someone a waiver, it means they do not need to pay an application fee. You can apply for a waiver if you have serious financial problems. We may agree to waive or excuse the fee.

A witness gives a witness statement at a hearing. It is a statement that explains what they saw, heard or experienced. They have to promise (‘swear on oath’) that what they say in the statement is true.

A person can only make a bullying application if they are a worker. The term 'worker' includes:

• an employee
• a contractor or subcontractor
• someone employed through a labour hire company or agency
• an apprentice, trainee, or work experience student
• a volunteer
• an outworker.

A workplace determination is similar to an enterprise agreement. In a determination, the Commission sets the terms and conditions of employment when the parties cannot agree on their own. There are 3 types, related to:

• low-paid workers
• industrial action
• bargaining.