Fair Work Commission

Overview

A hearing or conference is a formal proceeding for an application made to the Commission, where a Member of the Fair Work Commission will hear and consider all of the evidence and submissions. The Commission Member may then provide a legally binding decision resolving the application.

Hearings or conferences may be conducted in relation to a wide range of matters including:

• unfair dismissal or general protections matters
• enterprise bargaining, industrial action and enterprise agreement related matters
• applications under dispute settling procedures in an enterprise agreement or a modern award
• major cases such as the annual wage review or the 4 yearly review of modern awards.

The Commission may also deal with a dispute (other than by arbitration) in other ways, as it considers appropriate, including by:

• mediation
• conciliation
• making a recommendation
• by expressing an opinion.

Hearings and conferences are formal legal processes. Each party must prepare a case including written witness statements and arguments.

Differences between hearings & conferences

Hearings and conferences both involve a Member of the Commission reviewing evidence and submissions and coming to a decision about the case, but they are conducted in different ways.

Conferences

• Generally not open to the public – conferences are usually held in private without spectators, unless the Member decides it should be public. Your support person is generally able to attend a conference.
• Often held in a hearing room – although the conference may also be held in a smaller conference room with everyone sitting around the same table.
• More informal and interactive – the Member may sit at the bar table with the parties in a hearing room, or around a large table in a conference room.
• Evidence is given from the bar table or conference room table.
• All parties are sworn at once to allow evidence to be given from the bar table.

Hearings

• Open to public – generally anyone can attend a hearing including the public, media, family and friends.
• Held in hearing room – people sit in formal positions in the hearing room.
• Formal – the Member sits at the front of the room.
• Evidence is given from the witness box.
• Parties are sworn one at a time as they give evidence.

Sensitive or confidential matters

If the Commission holds a hearing in relation to a matter, the hearing is generally held in public. However, the Commission may decide that the matter involves sensitive or confidential evidence. In this case the Commission may:

• order that all or part of the hearing is to be held in private
• restrict who may or may not be present at the hearing
• prohibit or restrict the publication of the names and addresses of persons appearing at the hearing, or
• prohibit or restrict the publication of evidence, or its disclosure to some or all of the persons present at the hearing.

Notification of a hearing or conference

Before holding a hearing or conference the Commission will issue a Notice of Listing to all parties involved.

The Notice of Listing will tell you:

• whether your matter is listed for hearing or conference
• the date and time, and
• the location of your hearing or conference.

If you have a very good reason why you cannot participate at the scheduled time, you should read the section below on rescheduling and adjourning matters.

Directions or requirements

When the Commission issues the Notice of Listing there may be directions or requirements attached.

Directions or requirements can include instructions about what paperwork must be provided and when it must be submitted.

Each party must send a copy of any paperwork to 2 places:

• the Commission, and
• the other party.

All the documents you are required to provide must be submitted before the day of the hearing or conference – you cannot simply bring it with you on the day.

If a document contains confidential information, such as medical details, you should contact the Commission to discuss your options before you send it.

When no hearing is held

Sometimes the Commission is able to determine a matter based on written submissions without the need for a formal hearing or conference (generally where the facts are not in dispute). This is referred to as a matter being determined 'on the papers'.

The Commission has the power to direct a party to a matter to provide copies of documents, records, or any other information.

Rescheduling or adjourning matters

If you have a very good reason why you cannot participate at the scheduled time you can apply in writing to the Commission to reschedule (also known as an adjournment) to a different time or date.

Parties should not assume that an adjournment will be granted. The principles in relation to adjourning (or staying) proceedings are as follows:

• a party to a matter before the Commission has a right to have the matter determined as quickly as possible
• serious consideration needs to be given before any action interferes with this right
• the party who applies for the adjournment must prove that it is necessary
• a party is not automatically entitled to an adjournment because they are involved in a criminal hearing, and
• an application for an adjournment must be determined on its own merits.

The Commission’s task is a 'balancing of justice between the parties' taking all relevant factors into account.

Ongoing criminal matters

Sometimes an adjournment is requested because the subject matter overlaps with a criminal matter before a court, and the defendant’s rights, including the right to silence, may be prejudiced if a hearing in the Commission precedes the criminal hearing.

In determining whether a civil matter interferes with a defendant’s right to silence in a criminal matter the following relevant factors may be considered:

• the possibility of publicity reaching and influencing jurors in the criminal matter
• the proximity of the criminal hearing
• the possibility of a miscarriage of justice
• the burden on the defendant of preparing for both the civil and the criminal matters, or
• whether the defendant has already disclosed his defence to the criminal allegations.

These principles have been questioned in subsequent judgments but the decision which set them out has not been overturned.

Witness statements

Witness statements are evidence. They are a first-hand account of what happened and include things that were seen, heard and said.

A witness statement is required for any person presenting evidence to the hearing or conference. This includes you, whether you are an applicant or a respondent to a matter. This means that everyone will have at least one witness statement. If you are relying on more than one witness you will have more – some people may have many.

Anyone giving a witness statement should attend the hearing or conference so they can give sworn evidence and be cross-examined, if required. If the witness is not at the hearing, their evidence may be excluded or given less importance.

You can use the Applicant's statement of evidence, or the Respondent's statement of evidence on our website to help you prepare witness statements and submissions. There are also documents to help you prepare for objections, for both applicants and respondents. These documents can be found on the About hearings and conferences page in the Unfair dismissal section of our website.

Interpreters

The Commission will supply an interpreter for either party as required, at no cost to you. However, you must notify us well before the day of the hearing or conference of any interpreter requirements so that we can arrange one for you – we cannot arrange interpreters if you only notify us on the day of the hearing or conference.

Representation by lawyers and paid agents

You do not have to be represented by a lawyer or advocate at a hearing or conference, you may decide to represent yourself. You will need permission from the Commission Member if you do wish to be represented by a lawyer or paid agent.

The Commission can only give permission for a person to be represented by a lawyer or paid agent in a matter before the Commission if it would:

• enable the matter to be dealt with more efficiently, taking into account how complex the matter is, or
• be unfair not to allow the person to be represented because the person is unable to represent themselves effectively, or
• be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The following representatives are not required to seek permission to appear:

• a lawyer or paid agent who is an employee (or officer) of the person, or
• a lawyer or paid agent who is an employee (or officer) of any of the following, which is representing the person:
  • an organisation (including a union or employer association), or
  • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 (Cth), or
  • a peak council, or
  • a bargaining representative, or
• a lawyer or paid agent who is a bargaining representative

You are allowed to bring people with you for support, such as family members or friends. They will not play a part in the hearing and no permission is required for them to attend.

Before your hearing or conference

If you are representing yourself at a hearing or conference, you should come prepared to both be cross-examined in the witness box and also either question your own witnesses or cross-examine witnesses from the other side.

It is often helpful to prepare the questions you might ask before the day, so you are comfortable when it comes time to ask them.

The purpose of witness evidence and cross-examination is to provide the Member with as much information as possible to make their decision.

It is important when thinking about what you will ask, that your questions:

• are a question (not a statement), so the witness can answer it
• are not leading questions – do not provide the witness with the answer
• are clear and concise
• help tell the story about your matter based on the relevant sections of the Fair Work Act
• are relevant, and relate to events that the witness has first-hand knowledge of.

Outcomes

The possible outcomes from a hearing or conference depend on the type of matter the Commission is dealing with. Some possible outcomes include:

• the matter may be dismissed, whether because the application lacked merit or because a jurisdictional objection or other objection is upheld
• in a dismissal matter the Commission may order that the employee be reinstated or order payment of compensation
• the Commission may make an order in relation to the matter, for example an order stopping industrial action or an order approving an enterprise agreement.

Costs

Each party involved in a case in the Commission must usually pay their own costs.

However, the Commission may order a party to pay some, or all, of the costs of the other party if the application or response to it:

• was frivolous, vexatious or made without cause, or
• had no reasonable prospect of success.

Costs may also be awarded to one party if the Commission is satisfied that the costs were incurred as a result of an unreasonable act or omission of the other party.

Costs may also be ordered against legal representatives.