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:
The Commission may also deal with a dispute (other than by arbitration) in other ways, as it considers appropriate, including by:
Hearings and conferences are formal legal processes. Each party must prepare a case including written witness statements and arguments.
To find out about the various people inside a hearing room and the role each of them plays, watch our video Who’s inside the hearing room?
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.
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:
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:
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.
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:
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.
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.
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:
The Commission’s task is a 'balancing of justice between the parties' taking all relevant factors into account.
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:
These principles have been questioned in subsequent judgments but the decision which set them out has not been overturned.
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.
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.
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:
The following representatives are not required to seek permission to appear:
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.
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:
The possible outcomes from a hearing or conference depend on the type of matter the Commission is dealing with. Some possible outcomes include:
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:
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.