Glossary & naming conventions

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adjournment

To end proceedings or to suspend them to another time or place.

appeal

To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.

bullying at work

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

bullying policy

A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.

code of conduct

A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.

Commission

Abbreviation for Fair Work Commission.

Commonwealth

Refers to the Commonwealth government or an Australian territory.

conference

A private proceeding conducted by a Fair Work Commission Member.

constitutionally covered business

A constitutionally covered business is:

a proprietary limited company
a foreign corporation
a trading or financial corporation formed within the limits of the Commonwealth
the Commonwealth
the Commonwealth authority
a body corporate incorporated in a territory
a business or organisation conducted principally in a territory or Commonwealth place.

It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.

decision

A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.

directions

Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.

evidence

Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.

Fair Work Act 2009

The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.

Fair Work Commission

Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.

Full Bench

A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work 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 2009.

harassment

Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.

hearing

A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.

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

jurisdictional objection

An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.

matter

A case or legal proceeding before the Commission.

mediation

An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.

Member

A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.

non-constitutional corporation

An entity that is not a constitutional corporation. The following are not constitutional corporations:

sole traders
partnerships
some state government bodies
corporations whose activities do not include significant trading or financial functions (e.g. some charities).

order

An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.

outcome

The end result of an application made to the Commission.

outline of submissions

A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.

partnership

An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.

party

A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.

principal

A person or business that has entered into a contract for services with an independent contractor.

private enterprise

A business owned and operated by private individuals for profit, instead of by a government or its agencies.

procedural fairness

When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.

pty ltd

A proprietary limited company. A constitutionally covered business.

reasonable management action

In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.

Reasonable management action may include:

performance management processes
disciplinary action for misconduct
informing a worker about unsatisfactory work performance or inappropriate work behaviour
asking a worker to perform reasonable duties in keeping with their job, and
maintaining reasonable workplace goals and standards.

In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.

Rules

The Fair Work Commission Rules 2013.

service/to serve

A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.

sole trader

An organisation in which one person is responsible for the business.

WHS

Abbreviation for work health and safety.

WHS state or territory regulator

A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.

witness statement

A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.

worker

In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:

an employee
a contractor or subcontractor
a person employed by a labour hire company who is working at a particular business or organisation
an outworker
an apprentice or a trainee
a work experience student
a volunteer.

Only people who are considered to be workers may apply for an order to stop bullying at work.

workplace

A place where a person performs work.

workplace bullying

See bullying at work.

Naming conventions

Employees, employers and employee organisations etc

The separate parties involved in making enterprise agreements are referred to in this benchbook as employee and employer, or union where appropriate. At times the use of employee, employer or union may also be a reference to employees, employers or unions if that is appropriate.

Employee organisations are generally referred to as unions, given the general use and understanding of that term.

Enterprise-level agreements

The name of enterprise agreements has changed with the different Commonwealth legislation in force from time to time (for example, certified agreement, collective agreement and enterprise agreement). In this benchbook all such agreements are referred to as enterprise agreements or just agreements.

Any enterprise agreement which has not yet been made is referred to as a proposed enterprise agreement.

Glossary

Term	Definition
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.

References

^[1] Fair Work Act s.176(1)(b).

^[2] As in force 25 June 2009 (see Fair Work Act s.40A).

^[3] Re White's Discounts Pty Ltd t/as Everybody's IGA Everyday and Broken Hill Foodland PR937496 (AIRCFB, Giudice J, Drake SDP, Lewin C, 12 September 2003) at paras 15–16, [(2003) 128 IR 68].

^[4] The General Manager of the Commission, or a member of staff delegated powers under ss.625 or 671 of the Fair Work Act may also make a decision.

^[5] See Fair Work Act s.266.

Updated time

Last updated

24 May 2019

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