Fair Work Commission

Adjournment

To suspend or reschedule proceedings (such as a conciliation, conference or hearing) to another time or place, or indefinitely.

Appeal

An application for a Full Bench of the Fair Work Commission to review a decision of a single member of the Commission and determine if the decision was correct.

A person must seek the permission of the Commission to appeal a decision.

Applicant

A person who makes an application to the Commission.

Application

The way of starting a case before the Commission. An application can only be made using a form prescribed by the Fair Work Commission Rules 2013 (Cth).

Arbitration

The process by which a member of the Commission will hear evidence, consider submissions and then make a decision in a matter.

Arbitration generally occurs in a formal hearing and generally involves the examination and cross-examination of witnesses.

Bargaining

Bargaining is the process by which the parties to a proposed enterprise agreement negotiate the coverage and terms and conditions of the agreement.

Bargaining representative

A bargaining representative is a person nominated to participate in bargaining for a proposed enterprise agreement.

A bargaining representative can be an employer or an employee, or a union or industrial association.

A union is the default bargaining representative for an employee if:

• the employee is a member of the union, and
• the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

However, the union will not be the employee's bargaining representative if:

• the employee revokes the status of the union as his or her bargaining representative, or
• appoints another person, or appoints himself or herself, as bargaining representative for the agreement.^[1]

Civil remedy provision

A provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the person who contravened the provision of the Act, or any other order the Court considers appropriate such as an injunction.

Commission Member

Someone appointed by the Governor-General as a Member of the Commission. A member may be a Commissioner, a Deputy President, a Vice President or the President.

Conference

A proceeding conducted by a Commission Member which is generally held in private.

Court

In this benchbook, a reference to Court generally means the Federal Court or Federal Circuit Court.

Day

What is a day?

Understanding what constitutes a day is important regarding any legal process with requirements to meet specific timelines.

Section 36(1) of the Acts Interpretation Act 1901 (Cth)^[2] deals with the manner in which time is to be considered in interpreting the Fair Work Act. It reads:

'(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.'

This means that when calculating time you do not count the day on which the relevant act or event occurs or occurred.^[3]

Decision

A determination made by a single member or Full Bench of the Commission^[4].

A decision in relation to a matter before the Commission will generally include the names of the parties and outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter.

Discontinue

To formally end a matter before the Commission.

A discontinuance can be used during proceedings to stop the proceedings or after proceedings to help finalise a settlement. Once a matter has been discontinued it cannot be restarted.

Employee organisation

See union

Employer organisation

An organisation which represents the interests of employers which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

Enterprise agreement

An enterprise agreement is an agreement made at the enterprise level and enforceable under legislation which sets out terms and conditions of employment of employees and their employer (or employers).

An enterprise agreement sets out rights and obligations of the employees and the employer(s) covered by the agreement.

An enterprise agreement must meet a number of requirements under the Fair Work Act before it can be approved by the Commission.

Error of law

An error of law is a common ground for legal review. It occurs when a member of the Commission has misunderstood or misapplied a principle of law; for example, by applying the wrong criteria, or asking the wrong question.

Evidence

Information which tends to prove or disprove the existence of a particular belief, fact or proposition.

Certain evidence may or may not be accepted by the Commission, however the Commission is not bound by the rules of evidence.

Evidence is usually set out in an affidavit or given orally by a witness in a hearing.

Explanatory Memorandum

An Explanatory Memorandum is a document that provides additional information about how proposed legislation is expected to operate and details about individual sections and provisions of that legislation.

Fair Work Act

The Fair Work Act 2009 (Cth) is Commonwealth legislation dealing with workplace relations laws in Australia.

Fair Work Regulations

The Fair Work Regulations 2009 (Cth) is supporting legislation for the Fair Work Act.

Fair Work Act

Fair Work Act 2009 (Cth).

First instance

A decision (or action) which can be considered the first decision (or action) to be made in relation to a matter.

Full Bench

A Full Bench of the Commission comprises at least 3 Commission members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act.

A Full Bench can give a collective judgment if all of its members agree, or independent judgments if the members' opinions differ.

Greenfields agreement

An agreement relating to a genuine new enterprise (including a new business, activity, project or undertaking) which is made at a time where the employer or employers have not yet employed any of the persons who will be necessary for the normal conduct of the enterprise and who will be covered by the agreement.

Hearing

A proceeding or arbitration conducted before the Commission which is generally open to the public.

Industrial instrument

A generic term for a legally binding industrial document which details the rights and obligations of the parties bound by the document, such as an enterprise agreement or award.

Injunction

An injunction is a legal remedy imposed by a court and requires a person to do a specific thing or more commonly to refrain from beginning or continuing a specific action.

Jurisdiction

The scope of the Commission's power and what the Commission can and cannot do.

The power of the Commission to deal with matters is specified in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.

Lodge

The act of delivering an application or other document to the Commission.

Matter

Cases at the Commission are referred to as matters.

Mediation

A method of dispute resolution promoting the discussion and settlement of disputes.

Member

See Commission Member

Minister

The Federal Minister for Employment.

National Employment Standards NES

Minimum standards that apply to the employment of all national system employees. They are set out in Part 2–2 of the Fair Work Act and relate to:

• maximum weekly hours
• requests for flexible working arrangements
• parental leave and related entitlements
• annual leave
• personal/carer's leave and compassionate leave
• community service leave
• long service leave
• public holidays
• notice of termination and redundancy pay, and
• the Fair Work Information Statement

The National Employment Standards are minimum standards that apply to the employment of employees which cannot be displaced. The NES are set out in Part 2–2 of the Fair Work Act

Nominal expiry date

The date specified in an enterprise agreement which indicates the period of time that the parties intended the agreement to operate.

The nominal expiry date cannot be more not more than 4 years after the day the Commission approves the agreement.

An enterprise agreement has continuing operation, and continues to apply even after it has passed its nominal expiry date.

Notice of Listing

A formal notification sent by the Commission setting out the time, date and location for a matter to be heard. A Notice of Listing can also include specific directions or requirements.

Notified negotiation period

The 6 month period within which the parties to a proposed single‑enterprise agreement that is a greenfields agreement have to bargain.

Order

A formal direction of the Commission which gives effect to a decision and is legally enforceable.

Organisation

See union or employer organisation

Outworker

A person who performs work at residential premises or at other premises that would not conventionally be regarded as being business premises.

Party

A person or organisation involved in a matter before the Commission.

Pecuniary penalty

An order to pay a sum of money which is made by a Court as a punishment.

Procedural fairness

Procedural fairness requires that a person whose interests will be affected by a decision receives a fair and reasonable opportunity to be heard before the decision is made.

Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.

The terms procedural fairness and natural justice have similar meaning and can be used interchangeably.

Proposed enterprise agreement

An agreement that an employer, an employee or a bargaining representative proposes that will cover an employer and an identified group of employees. The phrase proposed agreement or proposed enterprise agreement is used to describe an enterprise agreement before it is made by a vote of employees or, in the case of a greenfields agreement before it is signed by the employer and a relevant registered organisation.

Quash

To set aside or reject a decision or order, so that it has no legal effect.

Referred state

States that have referred some workplace relations matters to the Commonwealth to allow the Commonwealth to make laws with respect of those matters.

All states except Western Australia have referred some matters.

Respondent

A party responding to an application made to the Commission.

Representative

A person who acts on a party's behalf. This could be a lawyer, a paid agent, an employee or employer organisation or someone else.

Generally, a lawyer or paid agent can only represent a party before the Commission with permission of the Commission.

Respondent

A party responding to an application made to the Commission.

Service (Serve)

Service of a document means delivering the document to another party or their representative, usually within a specified period.

Documents can be served in a number of ways. The acceptable ways in which documents can be served are specified in Parts 7 and 8 of the Fair Work Commission Rules 2013.

Serving documents

See service

Statutory declaration

A written statement in a prescribed form in which a person declares something to be true.

Such a statement is declared before, and witnessed by, an authorised official (such as a justice of the peace).

Transitional Act

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

Union

An organisation which represents the interests of employees which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

A union can also be referred to as an employee organisation.

Workplace determination

Terms and conditions of employment determined by a Full Bench of the Commission.

The Commission can make:

• low-paid workplace determinations
• industrial action related workplace determinations, and
• bargaining related workplace determinations.

An industrial action related workplace determination must be made where protected industrial action has been terminated by the Commission or the Minister and the bargaining representatives have not settled all of the matters at issue during the post-industrial action negotiating period.^[5]

A workplace determination includes a nominal expiry date set by the Commission.