Skip to main content

Ribbon

  • About us
  • Contact us
  • Glossary
  • News & media
Fair Work Commission logo

Fair Work Commission

Australia's national workplace relations tribunal
Search is closed
Menu is closed

Search

Main menu

  • Awards & agreements
    • Minimum wages & conditions
    • Awards
    • Agreements
    • Legislation & regulations for awards & agreements
  • Cases, decisions & orders
    • Major cases
    • Summaries of significant decisions
    • Decisions by keywords
    • FWC Bulletin
    • Archived decisions & orders
    • Transcripts
    • Court reviews
    • Historical cases
  • Registered organisations
    • Fact sheets, templates & webinars
    • Find registered organisations
    • Find State-recognised associations
    • Registration
    • Running a registered organisation
    • Entry permits
    • Industrial action
    • Gazette notices
    • Lodgment
  • Resources
    • Online lodgment
    • Forms
    • Where to get legal help
    • Research
    • Workplace Relations Education Series
    • Benchbooks
    • Fact sheets, guides & videos
    • Practice notes
    • Resources in other languages
    • Case studies
    • Quarterly practitioner updates
    • Related sites
  • Termination of employment
    • Unfair dismissal
    • General protections dismissal
    • Unlawful termination
    • How the Commission works
  • Disputes at work
    • Fairness in the workplace
    • Resolving issues at the Commission
    • Cooperative Workplaces program
    • JobKeeper disputes
    • General protections (unlawful actions)
    • Anti-bullying
    • Industrial action
    • Awards & enterprise agreements disputes
    • Disputes about entry
    • How the Commission works
  • Home
  • General protections benchbook
  • What is adverse action?
Back to top

General protections benchbook

An overview of legal procedure & case law

What is dismissal?

Print this page

 

Table of contents

On this page

  • Introduction
  • Terminated at the employer’s initiative
  • Case examples
  • Forced resignation
  • Case examples
  • Demotion
  • Case example
  • References

 

Introduction

See Fair Work Act s.386

The term dismissed is defined in the Fair Work Act as a situation where:

  • a person’s employment has been terminated at the employer’s initiative, or
  • a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

A dismissal does NOT include where:

  • a person is demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer
  • a person was employed under a contract for a specified period of time, specified task or for the duration of a specified season and the employment comes to an end at the end of that period, or
  • a person had a training arrangement with their employer which:
    • specified that the employment was limited to the duration of the training arrangement, and
    • whose employment ends at the end of that training arrangement.

Related information

  • When does a dismissal take effect?

Terminated at the employer’s initiative

Contains issues that may form the basis of a jurisdictional issue.

 See Fair Work Act s.386(1)(a)

The action of the employer must cause the termination

A termination is at the employer’s initiative when:

  • the employer’s action ‘directly and consequentially’ results in the termination of employment, and
  • had the employer not taken this action, the employee would have remained employed.[1]

There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[2]

The question of whether the act of an employer results ‘directly or consequentially’ in the termination of employment is an important consideration but it is not the only consideration.[3] It is important to examine all of the circumstances including the conduct of the employer and the employee.[4]

Repudiation

The test for repudiation by the employer is whether the conduct of the employer, when judged objectively, showed an intention to no longer be bound by a contract.[5] The employer’s actual or subjective intention is not relevant.[6]

A repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract.[7] If the affected party accepts the repudiation the contract will end.[8]

Where an employer has repudiated the contract, and an employee accepts the repudiation and an employee exercises their right to terminate the contract, this will amount to a termination at the employer’s initiative.

An employee may engage in conduct amounting to a repudiation by seriously breaching the contract of employment.

Employment contract may continue after employment relationship is terminated

Termination at the employer’s initiative requires the termination of the employment relationship, not the contract of employment.[9]

Case examples

Terminated at the employer’s initiative

Employer claimed employee resigned her employment

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

The applicant submitted a letter of resignation which effectively gave 7 months’ notice. Her employer accepted the resignation but made it effective immediately. It was found that the termination of employment occurred at the employer’s initiative.

Employer argued abandonment of employment

Sharpe v MCG Group Pty Ltd [2010] FWA 2357 (Asbury C, 22 March 2010).

An employee who had notified her employer that she would be unable to attend work due to medical reasons, and was then terminated, was found to have been terminated at the initiative of the employer. An argument that the employee had abandoned her employment by not attending for work as directed was rejected. It was held that the employer had terminated the employment.

Employer proposed changed working conditions to accommodate employee’s pregnancy

Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 (Hampton C, 28 February 2011).

Permission to appeal refused [2011] FWAFB 2929 (Boulton J, Kaufman SDP, Bissett C, 10 June 2011), [(2011) 210 IR 17].

The employer and employee agreed that the employee would work in a less difficult role as the employee was pregnant. However, when the employer informed the employee that there would be a significant reduction in salary for the new role, the employee refused to agree, and regarded herself as having been dismissed. This was found to constitute a termination of employment at the initiative of the employer.

NOT terminated at the employer’s initiative

Employee engaged on series of fixed-term contracts

Drummond v Canberra Institute of Technology [2010] FWA 3534 (Deegan C, 4 May 2010).

Leave to appeal refused [2010] FWAFB 5455 (Drake SDP, Cartwright SDP, Roberts C, 6 August 2010), [(2010) 197 IR 287].

Non-renewal of employment at the expiry of the last of a series of fixed term contracts was held not to be a termination of employment at the initiative of the employer.

Series of ‘outer limit contracts’

Department of Justice v Lunn PR974185 (AIRCFB, Lawler VP, Harrison SDP, Raffaelli C, 27 November 2006), [(2006) 158 IR 410].

The employer and employee had entered into a series of outer limit contracts. Even though there was a strong expectation that contracts would be renewed, it was not sufficient to displace the legal effect of the contract that the parties had entered into. The employment was terminated through the passing of time at the end of the final contract, and the employee was not terminated at the initiative of the employer.

Apprenticeship contracts

Qantas Airways Limited v Fetz and others Print Q1482 (AIRCFB, Giudice J, Harrison SDP, Lawson C, 9 June 1998), [(1998) 84 IR 52].

Apprentices were placed on apprenticeship contracts with a duration of four years but with an expectation that there would be an offer of permanent employment after that (subject to performance and operational requirements). On appeal, the apprentices were held to be subject to contracts for a specified period of time. Therefore when the apprenticeship contracts expired and the apprentices were not offered further employment, this was not a termination of employment at the initiative of the employer.

Forced resignation

Contains issues that may form the basis of a jurisdictional issue.

A forced resignation is when an employee has no real choice but to resign.[10]

The onus is on the employee to prove that they did not resign voluntarily.[11] The employee must prove that the employer forced their resignation.[12]

A resignation is forced where the employee can prove that the employer took action with the intent (or which had the probable result) of bringing the relationship to an end.[13]

The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative, is a narrow one.[14] The line, however, must be ‘closely drawn and rigorously observed’.[15]

A forced resignation can also be referred to as constructive dismissal.

Heat of the moment resignation

An employer is generally able to treat a clear and unambiguous resignation as a resignation.[16]

Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.[17] In special circumstances an employer may be required to allow a reasonable period of time to pass.[18] The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[19]

Case examples

Forced resignation

Employee notified employer of future intention to resign

Marks v Melbourne Health [2011] FWA 4024 (Ives DP, 24 June 2011).

A letter from the employee to the employer indicating an intention to resign in the future, and sent at a time that the employee was distressed and unwell, was held not to be an effective notice of resignation.

Accordingly, the employer’s purported acceptance of the resignation was held to constitute a termination of employment at the employer’s initiative.

Employer alleged employee resigned – employee continued to present for work

Bender v Raplow Pty Ltd [2011] FWA 3407 (Richards SDP, 8 June 2011).

After an angry discussion between an employee and her manager, the employee believed she had been dismissed and the employer believed the employee had resigned. The employee continued to attend for work afterwards in the belief she had to work out the notice period for her dismissal.

The employee was found not to have resigned because she did not demonstrate an intention not to be bound by her contract of employment.

Failure to pay wages

Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF The Achilleus Accounting Trust [2012] FWA 2907 (Deegan C, 4 April 2012).

Permission to appeal refused [2012] FWAFB 5679 (Drake SDP, Richards SDP, Gregory C, 20 July 2012).

An employee gave notice of his resignation after having been paid under half of what he was owed in wages over a period of 4 months.

This was held to be a forced resignation due to the conduct of the employer, and constituted a dismissal by the employer.

NOT a forced resignation

Employee resigned before a disciplinary interview

Love v Alcoa of Australia Limited [2012] FWAFB 6754 (Boulton J, Kaufman SDP, Lee C, 10 August 2012), [(2012) 224 IR 50].

An employee who admitted to police that he had taken company property without authorisation resigned rather than attend a scheduled meeting with his employer about the matter.

This was held on the facts to be a voluntary and not a forced resignation.

Resignation of employee while under suspension and investigation

Davidson v Commonwealth [2011] FWA 3610 (Deegan C, 7 June 2011).

Permission to appeal refused [2011] FWAFB 6265 (Boulton J, Hamilton DP, Ryan C, 16 September 2011), [(2011) 213 IR 120].

The resignation of an employee who was barred from access to the workplace, and then suspended from work and subjected to a disciplinary investigation was held not to have been forced to resign by the employer.

Employee negotiating conditions following change in position

Blair v Kim Bainbridge Legal Service Pty Ltd T/as Garden & Green [2011] FWA 2720 (Gooley C, 10 May 2011).

The employee resigned in the belief that her employer required her to accept a lower rate of pay or resign. It was found that the employee had misunderstood the position and acted prematurely because the employer had made no final decision about the matter. Therefore the resignation was not forced by the employer’s conduct.

Employee on performance management plan

Ashton v Consumer Action Law Centre [2010] FWA 9356 (Bissett C, 20 December 2010).

An employee who resigned after having been placed on supervisory requirements was found not to have been forced to resign by the employer.

Employee resigned prior to a decision being made following a disciplinary process

Pacific National (NSW) Limited v Bell [2008] AIRCFB 555 (Harrison SDP, Cartwright SDP, Larkin C, 20 August 2008), [(2008) 175 IR 208].

The employee was subject to a disciplinary procedure relating to falsification of timesheets. The employee acted on the advice of the union and resigned before the employer had come to a decision in relation to the disciplinary matter.

This was held on appeal to be a voluntary, not a forced, resignation.

Employee resigned over failure to pay wages on time

Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWC 3941 (O’Callaghan SDP, 19 June 2013).

Permission to appeal refused [2013] FWCFB 5279 (Boulton J, Gooley DP, Hampton C, 2 August 2013).

The employee resigned after the employer repeatedly paid her wages late and failed to pay superannuation. The lateness was commonly one to two days but had been more on occasion. The Commission found that whilst the employer’s conduct was improper the circumstances did not leave the employee with no choice other than to resign.

The resignation was not found to be forced by the employer’s conduct.

Demotion

If a demotion involves a significant reduction in duties or remuneration, it may constitute a ‘dismissal’, even if the person demoted remains employed by the employer.[20]

The employment contract may be repudiated when an employee is demoted, without consent, and suffers a significant reduction in pay.[21] If the repudiation is accepted, either expressly or through conduct, the contract is terminated.[22]

If the demoted employee remains in employment after accepting the repudiation they would be under a new contract of employment.[23] However, a demoted employee may accept the repudiation and remain employed in the demoted position without agreeing to the demotion; that is, under protest or for financial or similar reasons.[24]

If the employee’s contract or industrial instrument contains an express term allowing demotion without termination then any demotion will not amount to a termination.[25]

Case example

Demotion a dismissal

Significant reduction in remuneration

Johnson v Zehut Pty Limited T/A URBRANDS [2014] FWC 7496 (Boulton J, 10 November 2014).

The employee had worked for a clothing retailer for over 12 years, in a variety of roles including National Sales Manager and National Operations Manager. She was asked to manage a store that was performing poorly, and she agreed on the basis of the maintenance of her then current salary package.

Within a year the company sought to have the employee agree to a change in the terms of her contract of employment, equivalent to a reduction of over $30,000 per year. When the employee did not accept the change, the company treated her refusal to accept the new terms and conditions of employment as a resignation.

The Commission concluded that the actions of the company brought the employment relationship to an end, and found that the applicant was dismissed at the initiative of the employer. There was no valid reason for the dismissal, the termination of the employee’s employment was harsh, unjust or unreasonable.

References

[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

[2] Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248, 256; citing O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].

[3] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

[4] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

[5] Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 (unreported, Harrison SDP, Richards SDP, Williams C, 30 June 2011) [13].

[6] ibid.

[7] Visscher v Giudice (2009) 239 CLR 361, 388 [81].

[8] ibid.; see also Dover-Ray v Real Insurance Pty Ltd (2010) 194 IR 22 [23].

[9] Searle v Moly Mines Limited (2008) 174 IR 21 [22]; citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427.

[10] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.

[11] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].

[12] ibid.

[13] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].

[14] Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999, 12.

[15] ibid.

[16] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357, 361‒362 (Murphy JR); citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

[17] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191.

[18] ibid.

[19] ibid.

[20] A Gerrard v UPS Pty Ltd (unreported, AIRC, Eames C, 19 March 2004) PR944681; Blair v Chubb Security Australia Pty Ltd (unreported, AIRC, Whelan C, 19 August 2003) PR936527.

[21] Charlton v Eastern Australia Airlines Pty Ltd (2006) 154 IR 239, 247 [34].

[22] ibid.

[23] Charlton v Eastern Australia Airlines Pty Ltd (2006) 154 IR 239, 247 [34]; citing Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 90 IR 211, 218; and Tokyo Network Computing Pty Ltd v Tanaka [2004] NSWCA 263 [6].

[24] Irvin v Group 4 Securitas Pty Ltd (unreported, AIRC, Deegan C, 18 December 2002) PR925901 [17].

[25] Hermann v Qantas Airways Ltd (unreported, AIRC, Whelan C, 3 April 2001) PR903096 [88]; see also Boo Hwa v Christmas Island Administration (unreported, AIRC, Polites SDP, 2 December 1999) Print S1443 [19] in relation to redeployment.

Updated time

Last updated

25 September 2020

 

 

Bookmark/Search this post

Facebook logo Google+ logo Twitter logo

 

Page feedback

Did you find what you were looking for?

Please note: If you would like a response to your question, please contact us or lodge a complaint. This feedback is only about content on this page and will be used to improve website usability. The comments are not monitored for personal information or workplace complaints. 

Mini sites

  • Annual Report 2013–14
    • Reader's guide
    • 1. Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements 2013–14
    • 2. About the Commission
      • Who we are and what we do
      • Our structure
      • Outcome and program structure
      • Our clients and stakeholders
        • In focus—Small Business Outreach
      • Our future direction
        • In focus–New website
        • In focus–Virtual tour
        • In focus–Mock hearings
      • Our history
    • 3. Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
        • In focus–Pay Equity Unit
      • Orders relating to industrial action
        • Case study–Emergency Services Telecommunications Authority
        • Case study–Sydney Water
      • Processes relating to modern awards
        • In focus–4 yearly review of awards
      • Approving agreements
        • Case study–Catholic Education Victoria
        • Case study–Orora Fibre Packaging
      • Regulating registered organisations
      • Determining anti-bullying applications
        • In focus–Setting up the anti-bullying jurisdiction
        • Case study–Anti-bullying
      • Key performance indicators
    • 4. Management and accountability
      • Corporate governance
      • Planning and development
      • Ethical standards
      • Accountability
      • Our workforce
      • Employee pay and entitlements
      • Service Charter, complaints and Code of Conduct
      • Financial management
    • 5. Appendices
      • A | Member activities
      • B | List of Members
      • C | Panel assignments
      • D | Methodology for Chart 2–Matters dealt with by the Commission and its predecessors 1998–99 to 2013–14
      • E | Promoting fairness and improving access
      • F | Efficiency and innovation
      • G | Increasing accountability
      • H | Productivity and engaging with industry
      • I | Documents relating to the work of the Commission
      • J | Fair Work Commission addresses
      • K | Lodgment and case load statistics
      • L | Methodology for Chart 6–Number of Commission sittings, various
      • M | Subscription services
      • N | Information on specific statutory requirements
      • O | Fraud Control Certificate
      • P | Fair Work Commission Service Charter
      • Q | Financial statements
        • Independent Audit Report
        • Statement by the General Manager and Chief Financial Officer
        • Statement of Comprehensive Income
        • Statement of Financial Position
        • Statement of Changes in Equity
        • Cash Flow Statement
        • Schedule of Commitments
        • Schedule of Administered Items
        • Notes to the financial statements
          • Note 1: Summary of Significant Accounting Policies
          • Note 2: Events after the Reporting Period
          • Note 3: Expenses
          • Note 4: Income
          • Note 5: Fair Value Measurements
          • Note 6: Financial Assets
          • Note 7: Non-financial Assets
          • Note 8: Payables
          • Note 9: Provisions
          • Note 10: Cash Flow Reconciliation
          • Note 11: Contingent Liabilities and Assets
          • Note 12: Senior Executive Remuneration
          • Note 13: Remuneration of Auditors
          • Note 14: Financial Instruments
          • Note 15: Financial Assets Reconciliation
          • Note 16: Administered Income
          • Note 17: Administered Payables
          • Note 18: Administered Cash Flow Reconciliation
          • Note 19: Administered Contingent Liabilities and Assets
          • Note 20: Appropriations
          • Note 21: Compliance with Statutory Conditions for Payments from the Consolidated Revenue Fund
          • Note 22: Compensation and Debt Relief
          • Note 23: Reporting of Outcomes
          • Note 24: Net Cash Appropriation Arrangements
      • R | Agency resource statement
      • S | Expenses and resources for outcome
      • T | Glossary
      • U | Acronyms and abbreviations
      • V | List of requirements
    • Letter of transmittal
    • Inquiries and copyright
    • Videos
    • Downloads
  • Annual Report 2014–15
    • Introduction
    • Preliminary information
      • Contents
      • Letter of transmittal
      • Readers guide
    • Part 1 Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements
    • Part 2 About the Commission
      • Outcome and programme structure
      • Who we are and what we do
      • Our structure
      • Our history
      • Our clients and stakeholders
      • Our future direction
      • Future directions - Continuing the change program
    • Part 3 Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Unlawful termination disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
      • Orders relating to industrial action
      • Processes relating to modern awards
      • Enterprise agreements
      • Determining anti-bullying applications
      • Regulating registered organisations
      • Key performance indicators
    • Part 4 Management and accountability
      • Corporate governance
      • Planning and development
      • Workplace health and safety
      • Business continuity
      • Ethical standards
      • Fair Work Commission values
      • Freedom of information
      • Accountability
      • The Commission's workforce
      • Employee pay and entitlements
      • Service Charter, complaints and code of conduct
      • Financial management
      • Agency resource statement
      • Expenses and resources for outcome
    • Acronyms and abbreviations
    • Part 5 Appendices
      • Appendix A
      • Appendix B
      • Appendix C
      • Appendix D
      • Appendix E
      • Appendix F
      • Appendix G
      • Appendix H
      • Appendix I
      • Appendix J
      • Appendix K
      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

Footer

  • Site map
  • Legal
  • Copyright
  • Accessibility

Coronavirus (COVID-19) information