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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • 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
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • 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
          • Employees must be notified of their 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?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • 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 workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • 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 by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • 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 – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • 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
        • 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
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • 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 & 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 – conciliations, hearings and conferences
          • 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
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
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Hearings & decisions

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      • Annual wage reviews archive
        • Annual Wage Review 2012–13
    • Application to terminate the Apple Retail Enterprise Agreement 2014
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    • Ballot for withdrawal of ME Division from CFMMEU
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    • Previous major cases
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      • Modern awards review 2012
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  • Case law benchbooks
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      • What is workplace bullying?
      • Who is covered?
        • Definition of ‘worker’
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          • 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
        • What does ‘Reasonable management action’ mean?
      • Making an application
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      • What if the worker has been dismissed etc
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      • Agreement making process
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      • Making an application
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        • Terminating enterprise agreements
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    • General protections benchbook
      • 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 by the general protections?
      • What is adverse action?
        • What is dismissal?
        • What is ‘injuring’ the employee in his or her employment?
        • What is altering the position of the employee to the employee’s prejudice?
        • What is discriminating between the employee and other employees of the employer?
        • Threatened action and organisation of action
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      • Workplace rights – Division 3
        • Meaning of workplace right
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        • Requiring the use of COVIDSafe
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        • What are industrial activities?
        • Coercion
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        • Discrimination
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      • Sham arrangements – Division 6
        • Misrepresenting employment
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        • Misrepresentation to engage as independent contractor
      • Making an application
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          • Timeframe for lodgment
          • Late lodgment
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      • Appeals
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        • Enforcement of Commission orders
        • Types of order made by the Court
    • Industrial action benchbook
      • What is industrial action?
        • Unprotected industrial action
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      • Payments relating to industrial action
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      • Overview of benchbook
      • What is sexual harassment?
      • Who is covered by the laws to stop sexual harassment at work?
        • Definition of ‘Worker’
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          • What is a person conducting a business or undertaking (PCBU)?
      • When is a worker sexually harassed at work?
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        • Reasonable belief of bullying or sexual harassment at work
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      • What is dismissal?
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        • Terminated at the employer's initiative
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          • Job no longer required due to changes in operational requirements
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          • Redeployment
        • What is the Small Business Fair Dismissal Code?
      • What makes a dismissal unfair?
        • Valid reason relating to capacity or conduct
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        • Notification of reason for dismissal
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      • Making an application
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      • Introduction
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      • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
        • Directions about duties & location of work
      • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
        • Jobkeeper enabling stand down directions – employer previously entitled to jobkeeper payment for employee
        • Directions about duties & location of work – employer previously entitled to jobkeeper payment for employee
        • Termination of a jobkeeper enabling direction made by a legacy employer
      • Agreements about days or times of work
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        • Procedural issues
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        • Contravening an order of the Commission
        • Appeals
        • Role of the Court
      • Attachments
      • Attachment 5 – Jobkeeper provisions that continue to apply on or after 29 March 2021
    • References in the benchbooks
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  • Practice notes
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    • Unfair dismissal proceedings
  • Transcripts and recordings
    • Recent transcripts
    • Ceremonial sittings transcripts

Practice note: Fair hearings

Introduction

The Fair hearings practice note provides procedural guidance and information about the conduct of hearings before the Commission, including the responsibilities of Commission Members, applicants, respondents and their representatives.

On this page:

  • Commencement date
  • Application
  • Definitions
  • What is the fair hearing obligation?
  • Role of Commission Members
  • Role of parties & representatives
  • Impartiality & apprehended bias
  • Communication with the Commission
  • Notices of listing & directions
  • Adjournments
  • Access to justice
  • Representation by lawyers & paid agents
  • Costs
  • Available assistance
  • Attachment 1 – Further practical information
Content

Commencement date

  1. This practice note commences on 15 July 2016.

Application

  1. This practice note applies to conferences and hearings conducted by Members of the Fair Work Commission.
  2. This practice note summarises key points regarding the obligations of all participants in Commission proceedings, and is not intended to act as a code.
  3. The Commission is subject to common law principles of procedural fairness. The Commission and the parties appearing before it, including their representatives, all have responsibilities to each other and to facilitate the provision of a fair hearing to all participants.

Definitions

  1. In this Practice Note:
Act means the Fair Work Act 2009
adjournment means to suspend or reschedule a conference or hearing to a later date
advocate means a person representing a party to a matter before the Commission
bar table statements means the statements made by parties or their representatives in the course of a hearing that are not given under oath or affirmation
Commission means the Fair Work Commission
conference means a proceeding in relation to a matter before the Commission that is generally held in private, unless otherwise directed by the Commission, and is less formal than a hearing
decision means a decision, order, determination or other directional ruling made by a Member of the Commission
hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter
matter means an application or other proceeding before the Commission
Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner
party means an applicant or respondent involved in a matter before the Commission
Rules means the Fair Work Commission Rules 2013
sworn evidence means evidence provided under oath or affirmation.
  1. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

What is the fair hearing obligation?

  1. The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act ‘judicially’ in the sense that they are obliged to provide procedural fairness and to determine matters impartially.
  2. The Act sets out some of the Commission’s obligations regarding the conduct of conferences and hearings.
  3. If the Commission holds a hearing in relation to a matter, the hearing must be held in public, except in the limited circumstances provided in s.593(3) of the Act. Further, the Commission must perform its functions and exercise its powers in a manner that:
  • is fair and just;
  • is quick, informal and avoids unnecessary technicalities;
  • is open and transparent; and
  • promotes harmonious and cooperative workplace relations (s.577 of the Act).
  1. Section 578 of the Act provides that in performing its functions or exercising its powers the Commission must take into account:
  • the objects of the Act and any part of the Act in relation to which a power or function is being exercised;
  • equity, good conscience and the merits of the matter; and
  • the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
  1. The Commission seeks to provide a safe environment for parties. Due to the nature of some proceedings it is possible that some parties may feel nervous or self-conscious at the Commission especially where their case deals with sensitive issues. If a party has genuine concern for their safety they should advise the Commission before the proceeding so that appropriate steps can be taken.

Role of Commission Members

  1. The Commission is obliged to perform its functions and exercise its powers in a manner that is fair, just and quick. An efficient dispute resolution service resolves disputes in a timely and appropriate way that minimises the costs incurred by the parties.
  2. During proceedings Members have a responsibility to:
  • listen to evidence;
  • ask questions to clarify points that are unclear and to obtain information that is relevant to the considerations which the Member must take into account;
  • manage the behaviour of advocates to ensure that all parties are treated with courtesy and respect;
  • exclude irrelevant information;
  • discourage repetition; and
  • deal with each matter on its merits, in accordance with the relevant provisions of the Act.
  1. Members are responsible for ensuring that proceedings are fair and that parties are treated with courtesy and respect. An important element of the fair hearing obligation is the duty to provide appropriate assistance to parties in the presentation of their case, in particular self-represented parties. This means that in some circumstances a Member has an obligation to intervene, both for the benefit of a self-represented party and more generally.
  2. The assistance provided to self-represented parties by a Member may, depending on the circumstances, include:
  • explaining the relevant legislative provisions;
  • identifying the issues which are central to the determination of the particular proceedings;
  • assisting a party to conform with procedural and evidentiary rules designed to avoid unfairness;
  • drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence;
  • offering a party an interpreter where it appears that this may assist that party to participate more fully in the proceeding;
  • facilitating the fair, just and quick determination of the matter; and
  • adjourning a proceeding in circumstances where it would be unfair to proceed.
  1. Despite this obligation, the assistance a Member can properly provide to a self-represented party is limited. The parties retain the responsibility to present all relevant evidence and materials and to make submissions in support of their cases. The Member must balance the interests of the parties who represent themselves with the need to:
  • afford procedural fairness to other parties;
  • ensure that proceedings are conducted efficiently and costs are kept to a minimum; and
  • ensure that proceedings are conducted in a manner that is impartial and can be seen to be impartial.

All parties have the right to a fair and efficient hearing.

  1. The Commission Member Code of Conduct (pdf) guides Members in performing their functions. The Code is available on the Commission’s website.
  2. Where a fact needs to be established, and that fact is contested, the Commission will determine the question on the balance of probabilities (i.e. whether it is more likely than not). In considering the evidence, the Member may seek further information from the parties, but will not rely solely on statements made from the bar table, unless those statements are unchallenged. Members may inform themselves in relation to matters before them as they consider appropriate, including by:
  • requiring a person to attend the Commission
  • inviting parties to make oral and/or written submissions
  • requiring a person to provide copies of documents or records, or to provide any other relevant information to the Commission
  • conducting a conference
  • holding a hearing, and
  • taking evidence under oath

[see ss.590, 592 & 593 of the Act].

  1. If a person has been required to attend the Commission and does not do so, a Member may determine a matter in the absence of that person (s.600 of the Act). The Commission may also dismiss an application (other than a general protections dispute application or an unlawful termination dispute application) if the application:
  • is not made in accordance with the Act;
  • is frivolous or vexatious; or
  • has no reasonable prospects of success

[see s.587 of the Act].

  1. Upon application by an employer, the Commission may dismiss an application for an unfair dismissal remedy if the applicant has unreasonably:
  • failed to attend a conference or a hearing in relation to the application;
  • failed to comply with a direction or order of the Commission; or
  • failed to discontinue the application after a settlement agreement has been concluded

[see s.399A of the Act].

The Commission may also use its general powers to dismiss applications, including unfair dismissal applications (s.587 of the Act).

Role of parties & representatives

  1. Parties and their representatives also have obligations, both to the Commission and to each other.
  2. Parties and their representatives are required to participate in proceedings in a responsible way to assist the Commission to provide a fair hearing for all parties.
  3. Parties and their representatives should:
  • treat the Commission and other parties/representatives with courtesy and respect
  • act honestly, and not knowingly give false or misleading information
  • cooperate with other parties and the Commission to facilitate the just, efficient, timely and cost effective resolution of the issues in dispute
  • act promptly, comply with Commission directions for the timely resolution of the matters and minimise delay
  • take reasonable steps to ensure the costs incurred in connection with proceedings are reasonable and proportionate to the complexity and importance of the issues and amount in dispute, and
  • where appropriate take reasonable steps to resolve disputes by agreement or to minimise the number of issues in dispute.

Impartiality & apprehended bias

  1. The Commission’s impartiality is central to a fair hearing. Bias, whether actual or apprehended, is inconsistent with the Commission’s obligation to provide a fair hearing.
  2. The general principle is that a Member should not deal with a matter if in all the circumstances a fair minded observer might have a reasonable apprehension that the Member might not bring an impartial and unprejudiced mind to the case before him or her.
  3. If a party believes that a Member may not bring an impartial mind to the matter, they may make an application that the Member disqualify himself or herself from hearing the matter. For example, if a Member conciliates a matter and a party believes that the Member may not bring an impartial mind to the arbitration of the dispute then they may request that the matter be referred back to the relevant Panel Head for allocation to another Member.
  4. Any application will be considered in context, with each decision depending on the particular issues or circumstances raised (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 (pdf)). For example, as explained in paragraphs 14 and 15 above, Members may intervene in the conduct of matters to ensure that proceedings are conducted fairly and efficiently. This approach will have an effect on the way in which applications to disqualify a Member are considered (see for example Johnson v Johnson (2000) 201 CLR 488 (pdf) at 493 [13] per Gleeson CJ, Gaudron, McHugh Gummow and Hayne JJ).
  5. In dealing with apprehended bias applications, the High Court has made clear that Members should not too readily agree to disqualify themselves. As the High Court observed in Re JRL Ex parte CJL (1986) 161 CLR 342 at 352:
'… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.'
  1. An apprehended bias application will not automatically be granted if a Member’s past decisions on questions of fact or law could lead to a reasonable expectation that they would decide a matter adversely for one of the parties (see Re Finance Sector Union of Australia Ex parte Illaton Pty Ltd (1992) 107 ALR 581 at 583).

Communication with the Commission

  1. Communication between parties and the Commission is necessary for the running of matters in a manner that is quick, informal and avoids unnecessary technicalities. However, all such communication must be undertaken with care to ensure that the impartiality and integrity of the Commission is not undermined. Communications between the Commission and parties must always be open and transparent.
  2. Email correspondence is the preferred method of communication with and by the Commission and all emails must be copied to other parties participating in the proceedings or whose interests might be affected unless there is some special confidentiality requirement which needs to be accommodated.
  3. Communication by telephone should be avoided in all but purely administrative matters. Where the communication by telephone is necessary, usually for reasons of urgency, the party initiating the communication should ensure that other interested persons are advised about it - preferably in advance, but at the very least as soon as possible after the communication has occurred. On the rare and usually very urgent occasions when a member finds it necessary to initiate a telephone conversation with a party or the party’s representative, the member will either arrange for other parties to be informed by his or her chambers or request that the recipient of the communication undertake that task (see Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [2016] FWCFB 916).

Notices of listing & directions

  1. The Commission will send to the parties a notice telling them the time, date and location of any conference or hearing to be held in relation to a matter. Unless specifically advised otherwise, the parties are required to attend the conference or hearing.
  2. Where a matter is listed for a conference or hearing, the Commission may direct the parties to file written outlines of submissions and other material prior to the proceedings. The filing of such material may help to clarify the issues to be considered in the proceedings and thereby facilitate the efficient conduct of the matter. The parties are required to comply with the directions issued, unless application is made for the directions to be varied. See also paragraphs 46 to 51 of the Appeal proceedings practice note for information on standard directions for appeals.

Adjournments

  1. A person seeking to have the time or date of proceedings changed should apply for an adjournment as early as possible and, where possible, before the day of the conference or hearing.
  2. Applications for adjournments made prior to a conference or hearing should be made in writing, specifying the reason for the request, to either the Associate of the Member who is allocated the application or the contact person for the application specified in correspondence from the Commission. As the views of the other parties to the proceedings will often be a relevant consideration, the party seeking the adjournment should inform the other parties and seek to obtain their consent to the adjournment application. A copy of any adjournment application made to the Commission must be copied to the other party or parties to the proceeding, and should indicate whether the application is made with the consent of the other parties. The Member will decide whether the adjournment will be granted and, if so, the time and date of the new conference or hearing. If the adjournment is not granted, the matter will go ahead on the day previously notified.
  3. If a party is to be absent from a proceeding, they must notify the Commission before the proceeding or, in the case of an unexpected emergency, as early as possible.

Access to justice

  1. The information and assistance provided by the Commission to parties, particularly self represented parties, is an important part of providing access to justice. The provision of a fair hearing requires Members to identify the difficulties experienced by a party, whether due to lack of representation, literacy difficulties, ethnic origin, religion, disability or any other cause, and find ways to overcome those difficulties and assist them through the Commission process.

Interpreters

  1. Parties can request that the Commission provide an interpreter for a conference or hearing. There is no cost to a party for interpreters provided by the Commission.
  2. Parties can indicate that they require an interpreter on the form they lodge with the Commission. Alternatively, they may request an interpreter by telephone or in writing to the Commission as early as possible before the day of the conference or hearing.
  3. If no interpreter has been requested, but a Member believes that an interpreter is required to allow a party to effectively participate in a proceeding, the Member may adjourn the proceeding until such time as an interpreter can be provided.

Assistance for hearing impaired

  1. If a party is hearing impaired, they may make a request to the Commission that the proceedings be conducted in a room equipped with audio equipment. There is no cost to a party in respect of the use of this equipment.

Parties in remote locations

  1. Applications can be made for persons to attend hearings by video or telephone link. Requests, with reasons for the request, must be made in writing to the Member’s chambers copied to other parties and provide as much notice as possible. Requests may be subject to the availability of facilities. Where proceedings are to be conducted using video or telephone links, it is important that parties provide any documents to the Commission and to the other parties in advance of the hearing or conference.

Disability, ill health or carer’s responsibilities

  1. If a party has a disability or illness or has carer’s responsibilities for which the Commission will need to make arrangements, they should advise the Commission as soon as possible. Such a request may include:
  • breaks to take medications;
  • that hearings start or adjourn at particular times to accommodate family or carers’ responsibilities; or
  • proceedings being adjourned in cases of ill health or emergency.

Representation by lawyers & paid agents

  1. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent. However, a party may seek permission from the Member hearing the matter to be represented (see s.596 of the Act and see generally Warrell v Walton [2013] FCA 291).
  2. You do not need to seek permission to be legally represented if the lawyer or paid agent representing you is an employee or officer of:
  • your business;
  • an organisation such as a union or an employer association that is registered under the Fair Work (Registered Organisations) Act 2009 that is representing the person;
  • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 that is representing the person;
  • a peak council that is representing the person; or
  • a bargaining representative

[see s.596(4) of the Act].

  1. Subject to a direction by the Commission to the contrary, a person is permitted to be represented in a matter by a lawyer or paid agent in order to:
  • prepare a written application or submission;
  • lodge a written application, submission or other document; or
  • correspond with the Commission in relation to the matter

[see Rule 12 of the Rules].

Further, the Commission’s permission is not required for a person to be represented by a lawyer or a paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages) [see s.596(3) of the Act].

  1. You must seek permission to be represented by a lawyer or paid agent in a hearing or conference before the Commission (except in circumstances referred to in paragraph 44). The Member can only give permission for legal representation in a matter before the Commission if:
  • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
  • the party is unable to represent himself or herself effectively and it would be unfair not to allow them to be represented; or
  • it would be unfair not to allow the person to be represented taking into account fairness between the parties

[see s.596(2) of the Act].

  1. Examples of circumstances where permission for representation may be granted include:
  • where a person is from a non-English speaking background;
  • where a person has difficulty reading or writing; or
  • where a small business is a party and they do not have specialist human resource staff, and the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations
[see Notes (a) and (b) to s.596(2) of the Act].
  1. Any party that wishes to apply for permission to be represented at an appeal hearing by a lawyer or paid agent will generally be given directions by the Commission to identify, in writing:
  • the lawyer or paid agent they are seeking permission to have as a representative; and
  • the reasons why permission should be granted, having regard to the matters outlined in s.596(2) of the Act.
  1. The party will be required to lodge this request with the Commission, and serve it on the other party. The other party will then be given an opportunity to respond to this request, in writing, indicating whether they oppose the request for permission and, if so, the grounds for their opposition to the request. Where possible, the Commission will determine whether permission will be granted based on the material filed, and will advise the parties of the outcome prior to the hearing of an appeal.
  2. A similar procedure will apply to applications for permission to be represented by a lawyer or paid agent in proceedings before the Commission for the determination of unfair dismissal claims at first instance.
  3. Parties seeking to be represented in a conference or hearing should not assume that permission will be granted. Parties need to be prepared to proceed with a conference or hearing in the event that their representative is not permitted to appear. In the event that permission to be represented by a lawyer or paid agent is not granted the party may seek an adjournment, but whether an adjournment is granted will be a matter for the Member concerned and should not be assumed.

Costs

  1. In general, a person must bear their own costs in relation to a matter before the Commission.
  2. The power of the Commission to award costs is discretionary.
  3. A person may be ordered to pay the costs of another party if:
  • they made an application or responded to an application vexatiously or without reasonable cause;
  • the making of the application or the response to the application had no reasonable prospect of success (s.611 of the Act).
  • in an unfair dismissal proceeding, they caused costs to be incurred by the other party because of an unreasonable act or omission in relation to the conduct or continuation of the matter (s.400A of the Act)
  1. Costs orders may be made against lawyers and paid agents in an unfair dismissal proceeding. Section 401(1A) of the Act provides that the Commission may make an order against a lawyer or paid agent for costs incurred by the other party to the matter if the Commission is satisfied that the representative caused those costs to be incurred because:
  • the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success; or
  • of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
  1. Similar provisions apply to conference costs in relation to general protections applications (see s.376 of the Act), and unlawful termination dispute applications (see s.780 of the Act).

Available assistance

  1. Commission Members and staff cannot provide legal advice or advice on how best to run a case. There are organisations that may be able to assist with complex cases.
  2. Employers may seek assistance through an employer association or a peak employer body. Employees can contact unions or employee organisations for assistance.
  3. Assistance can also be sought from individual advocates and lawyers. For a list of solicitors who deal with employment matters, employees and employers may contact the Law Institute or Law Society in their State or Territory. The National Association of Community Legal Centres Inc (NACLC) can assist parties with locating the nearest Community Legal Centre (go to the NACLC’s legal help page. Please note that the NACLC does not itself provide legal advice).
  4. There are also a number of guides available on the Commission’s website and via the following links:
  • Unfair dismissal information
  • General protections information
  • Fair Work Act 2009
  • Fair Work Commission Rules 2013.

Attachment 1 – Further practical information

What to do when you arrive at the Commission for a proceeding

  • Before you attend a conference or hearing at the Commission you should check the hearings and conferences list. The list identifies cases listed for a particular day, together with the Members dealing with them, the times of the hearings and conferences, and the location details – the floor and the hearing room number.
  • Not all cases that are heard at the Commission are published on our website. Details of cases not listed here will, where appropriate, be available at the Commission office on the day. Some cases heard at the Commission are held in private and members of the public are not permitted to attend.
  • Details of specific hearing rooms for cases being heard the next working day are published late on the previous day. The list is also published in capital city newspapers each day. Printed copies of the list can be found at Fair Work Commission public counters, near the courtrooms or, in some Commission premises, on the building's ground floor. Some lists may be available via electronic boards in the Commission’s lobbies.
  • If your hearing is in a regional courthouse you may have to ask for information at the inquiry counter.

What happens during proceedings

  • During proceedings the applicant and the respondent will each be given the opportunity to put their point of view forward. It is important to be prepared.
  • If you are providing documents in support of your position bring enough copies for everybody involved, including the Member. Supporting documents could include copies of relevant pay slips, correspondence (including emails, letters and text messages), or extracts of the relevant workplace law, award or enterprise agreement.
  • Where there are contested facts it may be appropriate to have previously obtained witness statements from relevant people. It may also be necessary to have witnesses give oral evidence so that they will have the opportunity to explain the matters in their statement. Each party will be given the opportunity to question witnesses.
  • Witnesses give oral evidence under oath or affirmation.
  • During a hearing a Member may allow the parties to break into a conference. This is an opportunity for more informal discussions to take place and is generally off the record.
  • If, at the conclusion of proceedings you are unsure of any outcome or direction given during proceedings, contact the Member’s associate to confirm. The associate can also provide information on how to obtain a copy of the transcript of the proceeding if appropriate.
  • Most proceedings, except for conferences, are recorded and the recordings may be transcribed. Parties may request an audio file of the recording to be provided to them, or may purchase a copy of the transcript.

Practical information to keep in mind during a hearing or conference

  • Make sure you arrive for the hearing or conference early so that the proceedings can begin on time. Notify Commission staff when you arrive by approaching them in the hearing or conference room.
  • If you are delayed for any reason it is important that you contact the Commission as early as possible to ensure a message is sent to the appropriate Commission staff.
  • If you have a mobile phone or pager, make sure it is switched off in the hearing or conference room.
  • Food and drink should not be brought into the hearing or conference room (unless medically necessary). Water is provided.
  • Generally when you enter the hearing room and face the bench the applicant and their representatives sit on the right side of the room and the respondent and their representatives sit on the left. Only those who wish to be heard can sit at the bar table. If a party has a representative, the person giving the representative instructions may also sit at the table.
  • At the beginning of the hearing, or if you leave or enter the hearing room while proceedings are underway, it is customary to bow to the Member, by standing and inclining your head.
  • It is customary in hearings to stand when you are addressing the Member or when questioning a witness.
  • When you are addressing a Commission Member refer to them by their title, e.g. Deputy President or Commissioner. Some Presidential Members (those appointed prior to 2009) are entitled to be addressed as 'Your Honour'. Commission staff at the hearing or conference can advise you of the appropriate form of address if you are unsure.

How to address Commission Members

President President
Vice Presidents Vice President
Senior Deputy Presidents Senior Deputy President
Deputy Presidents Deputy President
Commissioners Commissioner

What action can be taken if a party is aggrieved by a decision of the Commission

Appeal proceedings are outlined in the Appeal proceedings practice note, available on the Commission website.

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 21 Nov 2022
Location on last update: https://www.fwc.gov.au/hearings-decisions/practice-notes/practice-note-fair-hearings