Fair Work Commission

Fair Work Commission

The Commission

1 January 2013‒ongoing

Fair Work Australia

FWA

1 July 2009‒31 December 2012

Australian Industrial Relations Commission

AIRC, the Commission

1989‒2009

Australian Conciliation and Arbitration Commission

The Commission

1973‒1989

Commonwealth Conciliation and Arbitration Commission

The Commission

1956‒1973

Commonwealth Court of Conciliation and Arbitration

1904‒1956

ABN
(Australian Business Number)

A unique, 11 digit number which allows easy identification and interaction between business and government, particularly the tax office.

Adherent

A person who is a supporter or a follower of particular religious beliefs.

Adjournment

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

Affidavit

A sworn statement of fact which is made under oath before an authorised official.

An affidavit is used to give evidence in Commission (or court) proceedings.

Appeal

An application for a Full Bench of the 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.

Allege

To declare that something is true without providing proof.

Altruism

Having regard to the wellbeing or best interests of others.

Applicant

A person who makes an application with 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.

Balance of probabilities

It is the comparison of disputed facts to determine what is more likely to have occurred.

A fact is proved to be true on the balance of probabilities if its existence is more probable than not.

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 alleged wrong-doer, or any other order the court considers appropriate such as an injunction.

Collateral purpose

A proceeding is brought for a collateral purpose when its purpose is other than to seek an adjudication of the issues to which the application raises, such as to harass or embarrass the other party or to seek some other advantage.

Compensation

A requirement to pay money to an applicant as reimbursement for loss suffered as a consequence of an action.

Where a matter involves a dismissal the Commission will consider whether reinstatement is appropriate before considering if compensation should be ordered and, if so, how much.

Commission Member

See Member.

Conciliation

An informal method of resolving a general protections dispute by helping the parties to reach a settlement.

An independent conciliator can help the parties explore options for a resolution without the need for a conference or hearing before a Member.

Conciliation is the first step taken in the resolution of a general protections dismissal dispute.

Conference

A generally private proceeding conducted by a Commission Member.

Contemporaneous

Something which belongs to the same time; or was existing or occurring at the same time.

Court

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

Decision

A determination made by a single Member or Full Bench of the Commission which is legally enforceable.

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.

Decision-maker

A person with the power or authority to make major decisions.

Discontinue

To formally end a matter before the Commission.

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

Discriminator

A person who makes a distinction in favour of, or against, a person or thing.

Employee organisation

See union

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 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.

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.

Fixed term contract

An employment contract where the time of commencement and the time of completion are unambiguously identified by a term of the contract.

This can be achieved by stating definite dates, or by stating the time by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment.

An employer does not terminate an employee’s employment when the term of employment expires; rather, employment comes to an end by agreement or by the operation of law.

Full Bench

A Full Bench of the Commission comprises at least 3 Commission Members, one of whom must be a presidential member. 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.

Hearing

A generally public proceeding or arbitration conducted before the Commission Member.

Independent contractor

A person working in their own business to provide services which might otherwise be performed by an employee.

An independent contractor is covered by the general protections provisions of the Fair Work Act.

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.

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.

Labour hire worker

Someone who enters into a work contract with a labour hire agency.

A labour hire worker is covered by the general protections provisions of the Fair Work Act.

Lodge

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

Matter

Cases at the Commission are referred to as matters.

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.

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.

Order

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

Outer limit contract

An employment contract which has a fixed term, ending upon a given date or at the end of a defined period of time or upon the completion of a specified task, but which contains a broad and unqualified power to terminate the contract within its fixed term.

Party (parties)

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.

Person

A separate legal entity, recognised by the law as having rights and obligations.

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.

Proscribed

Something which is prohibited.

Quash

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

Reasonable person

A person who possesses the faculty of reason and engages in conduct in accordance with community standards.

Referred state

States that have referred some (or all) of their workplace relations powers to the Commonwealth.

All states except Western Australia have referred these powers.

Reinstatement

To return an employee to the job they previously held before they were dismissed. If the original position is not available the employee should be returned to a position as close as possible in remuneration and status to the original position.

Remedy

The possible outcomes of a matter before the Commission.

This could include an order for reinstatement or compensation made by 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.

Repudiation (Contract)

To terminate or reject a contract as having no authority or binding effect.

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

Settlement

An agreed resolution of a dispute. Generally, a negotiated outcome which both parties are satisfied with and by which they are bound.

Sham contract

When an employer deliberately disguises an employment relationship as an independent contracting arrangement, instead of engaging the worker as an employee.

It can also occur when employees are pressured to become independent contractors, where they are threatened with being dismissed, or are misled about the effect of changing their working arrangements.

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) but is not sworn on oath and therefore is not recognised as evidence.

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.

Untenable

If something is untenable it cannot be defended; it is incapable of being maintained against argument.

Volunteer

Someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain.

A volunteer is not covered by the general protections provisions of the Fair Work Act.

Waiver

An applicant can request that the application fee for lodging a general protections dismissal dispute be waived due to serious financial hardship. A copy of the Application for Waiver of application fee form can be found on the Commission’s website.

Witness

A person who gives evidence in relation to a situation that they had some involvement in or saw happening. A witness is required to take an 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.

Witness statement

A written statement that is usually in the form of a sworn or affirmed affidavit or statutory declaration. The witness statement should detail the information that the witness will rely on during the hearing.