Glossary & naming conventions

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Naming conventions

Employees, employers, applicants and respondents etc

The parties to general protections matters have generally been referred to in this resource as ‘employee’ and ‘employer’. These terms have been adopted for convenience even though the parties could be prospective employees, contractors, principals or even industrial associations. It is often the case that parties appearing at the Fair Work Commission are former employees and former employers.

After an application under the general protections provisions is lodged the parties are referred to as:

Applicant (usually the person who lodged the application – the employee), and
Respondent (the employer).

In the case of an appeal the parties are referred to as:

Appellant (the party who lodges the appeal), and
Respondent (the party who is responding to the appeal).

Fair Work Commission, Fair Work Australia, Australian Industrial Relations Commission etc

As outlined in the table below, the name and form of the national workplace relations tribunal has changed a number of times since the Commonwealth started legislating on industrial relations. In this benchbook the tribunal is referred to as the Commission.

Name	Short title	Dates
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

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)^[1] deals with the manner in which time is to be calculated 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.^[2]

Glossary

The glossary explains common terms used throughout this benchbook while legislative terms are defined in the relevant sections.

Term	Explanation
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 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.
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.

References

^[1] As in force 25 June 2009 (see Fair Work Act s.40A).

^[2] 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].

Updated time

Last updated

15 June 2018

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