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:
The work of the Commission is carried out by Commission Members with the support of administrative staff.
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.
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.
The Commission can undertake a range of actions in response to an application, including:
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).
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:
In performing its functions, the Commission must take into account:
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 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.
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:
If a person has been asked to attend the Commission but does not, the matter may be decided without them.
The Commission can dismiss an application (other than a general protections dispute application or an unlawful termination dispute application) if the application:
Upon application by an employer, the Commission can dismiss an application for an unfair dismissal remedy if the applicant has:
The Commission can also use its general powers to dismiss applications, including unfair dismissal applications.
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.
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.
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.