Fair Work Commission

The Fair Work Commission is Australia's national workplace relations tribunal. It is an independent body with power to carry out a range of functions including:

• providing a safety net of minimum conditions, including minimum wages in awards
• facilitating good faith bargaining and making enterprise agreements
• dealing with applications in relation to unfair dismissal
• regulating how industrial action is taken
• resolving a range of collective and individual workplace disputes through conciliation, mediation and in some cases public tribunal hearings
• functions in connection with workplace determinations, equal remuneration, transfer of business, general workplace protections, right of entry and stand down.

The work of the Commission is carried out by Commission Members with the support of administrative staff.

Getting a matter to the Commission

Most of the functions undertaken by the Fair Work Commission start when a person wanting to initiate a matter lodges an application with the Commission.

Applications must be made on the correct Commission form and lodged in accordance with the Fair Work Commission Rules 2013 and the procedures in the forms.

See Lodge an application for more information on how to do this.

Some functions, such as those related to annual wage reviews and modern awards reviews, are initiated by the Commission.

How the Commission deals with applications

The Commission can undertake a range of actions in response to an application, including:

• referring an application to a staff conciliator to help resolve the dispute informally
• issuing directions about how an application is to be dealt with
• requiring people involved in an application to appear before the Commission
• inviting submissions (verbal or in writing)
• taking evidence
• conducting conferences
• holding hearings, and
• make decisions and orders.

The Commission can also dismiss applications in certain circumstances. Details of the options available to the Commission in dealing with applications are in ss.585–611 of the Fair Work Act 2009 (the Act).

Fair hearings

Providing fair hearings means giving all parties the opportunity to put forward their case, and to have that case dealt with impartially (not favouring either side) and according to law.

The Act requires the Commission to:

• be fair and just
• act quickly
• be informal and avoid unnecessary technicalities
• be open and transparent, and
• promote harmonious and cooperative workplace relations.

In performing its functions, the Commission must take into account:

• the objects of the Act and any part of the Act in relation to which a power or function is being exercised
• equity, good conscience and the merits of the matter, and
• the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Impartiality

The general principle is that a Member should not deal with a matter if, in all the circumstances, a fair minded observer might have a reasonable concern that the Member might not bring an impartial and unprejudiced mind to the case before him or her.

If a party believes the Member is not impartial, they can apply to the Member to disqualify themselves from hearing the matter.

Any application will be considered in context, with each decision depending on the particular issues or circumstances raised. Applications are not automatically granted if a Member’s past decisions (on questions of fact or law) could lead to a reasonable expectation that they would decide a matter adversely for one of the parties.

Conciliation (alternative dispute resolution)

Conciliation is an informal, quick and flexible method of resolving a dispute. The Commission employs experienced senior staff to assist employers and employees to come up with ways to resolve disputes about termination of employment between themselves.

Conciliators do not give legal advice or make decisions. Instead they help parties explore options for a resolution without the need for a hearing, which involves the testing of evidence, and a decision made by a Member of the Commission.

Conciliation is usually held by telephone and takes approximately 90 minutes in a multi-party call. All applications involving termination of employment are initially referred to conciliators and case management staff who liaise with the parties and arrange telephone conferences.

How the Commission determines facts

Where a fact needs to be established, and that fact is not agreed, the Commission will determine the question on the balance of probabilities (ie whether it is more likely than not).

In considering the evidence, the Member may ask for further information from the parties, but will not rely solely on statements made from the bar table, unless those statements are unchallenged.

Members can gather information about matters in different ways, including by:

• requiring a person to attend the Commission
• inviting parties to make spoken and/or written submissions
• requiring a person to provide copies of documents or records, or to provide any other relevant information to the Commission
• taking evidence under oath.

If a person has been asked to attend the Commission but does not, the matter may be decided without them.

When the Commission can dismiss an application

The Commission can dismiss an application (other than a general protections dispute application or an unlawful termination dispute application) if the application:

• is not made in accordance with the Act
• is frivolous or vexatious, or
• has no reasonable prospect of success.

Upon application by an employer, the Commission can dismiss an application for an unfair dismissal remedy if the applicant has:

• unreasonably failed to attend a conference or a hearing
• unreasonably failed to comply with a direction or order of the Commission, or
• unreasonably failed to discontinue the application after a settlement agreement has been concluded.

The Commission can also use its general powers to dismiss applications, including unfair dismissal applications.

What the Commission cannot do

The Commission cannot provide legal advice to parties but can provide information as set out on this website about different issues.

The Commission does not investigate claims nor act for one party against another.  Information and advice about claims  involving  underpayment of wages and entitlements are carried out by the Fair Work Ombudsman.

Safe environment

The Commission seeks to provide a safe environment for parties.

If a party has genuine concern for their safety they should let the know Commission before the conference or hearing so that appropriate steps can be taken.

Making decisions & orders

The Commission will make and publish a decision at the end of most proceedings. For some application types, the Commission also makes orders. In some matters, interim decisions and directions are also made during the proceedings.

Most decisions and orders are produced in writing and published on the Commission's website. Some decisions are given verbally by a Member of the Commission at the end of the hearing or conference, and then written and published on our website at a later date.

Decisions generally include details about specific applications before the Commission, along with the reasons for the decision that is made.

The Commission has benchmarks for how quickly it will deliver decisions, and reports on its performance against the benchmarks each year in the Commission’s Annual reports.