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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
          • Proposed Helicopter Aircrew Award
          • Social, Community, Home Care and Disability Services Industry Award
          • Supported Employment Services Award
        • 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
        • 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
          • Agreements about days or times of work – employers currently entitled to jobkeeper payments
          • Agreements about days or times of work – employers previously entitled to jobkeeper payment for employee
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        • Employer payment obligations
          • Wage condition
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        • Who can hold a Fair Work Entry permit
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          • Entry permit – photo and signature declaration (Form F42C)
        • Apply for a Fair Work entry permit (Form F42)
        • How we process Fair Work entry permit applications
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        • Rights and obligations of Fair Work entry permit holders
        • Apply for an affected member certificate (Form F45)
        • Apply to be exempt from providing an entry notice (Form F44)
      • About Work Health and Safety entry permits
        • Apply for a WHS entry permit (Form F42A)
        • Statutory declaration to support an application for a WHS entry permit (Form F42B)
        • Rules for a WHS entry notice
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      • Disputes about entry to workplaces
        • Apply to resolve a right of entry dispute (Form F12)
    • Notices in the Gazette
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      • Object to joining an employee or employer association (Form F69)
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      • Change the rules of a union or employer association
        • Apply to change the name of a registered organisation (Form F67)
        • Apply to change the eligibility rules of a employer association or union (Form F68)
        • Application for leave to change name and to alter rules (Form F59)
        • Apply to change eligibility rules of a federal counterpart (Form F68A)
        • Apply to change 'other' rules of a registered organisation
      • Renew an objection to joining an employee or employer association (Form F70)
    • Become a registered union or employer association
      • Apply to register a union (Form F56)
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      • Apply to register an enterprise union (Form F57)
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      • Object to the registration of an association (Form F58)
    • Merge registered organisations
      • Ballot paper for proposed amalgamation (Form F64)
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      • Ballot paper chosen by organisation with alternative to proposed amalgamation (Form F65)
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    • Cancelling an organisation's registration
      • Apply to cancel an organisation's registration (Form F62)
      • Application by an organisation to cancel an organisation's registration (Form F60)
      • Object to the cancellation of an organisation's registration (Form F61)
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      • Ask to waive an application fee (Form F80)
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Hearings & decisions

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      • Annual Wage Review 2022–23
        • Research for the Annual Wage Review 2022–23
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        • Additional material for the Annual Wage Review 2021–22
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        • 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
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      • 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
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        • Draft orders
        • Exhibits
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      • Equal Remuneration and Work Value Case
        • Applications
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      • 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
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        • 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
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        • 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
          • 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)?
      • 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
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      • 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
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        • 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
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          • Calculating compensation
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          • Any other matters that the Commission considers relevant
          • Compensation cap
      • Dismissing an application
      • Evidence
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        • 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
      • 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
        • Agreements about days or times of work – employers currently entitled to jobkeeper payments
        • Agreements about days or times of work – employers previously entitled to jobkeeper payment for employee
        • Termination of an agreement about days or times of work
      • Employer payment obligations
        • Wage condition
        • Minimum payment guarantee
        • Hourly rate of pay guarantee
      • Agreements about annual leave
      • Protections
      • Jobkeeper disputes the Commission cannot assist with
      • Applications to deal with a dispute about the operation of Part 6-4C
        • Who can make an application
        • Responding to an application
        • Objecting to an application
        • Discontinuing an application
      • Commission process
        • General information
        • Conferences & hearings during the COVID-19 pandemic
        • Procedural issues
      • Evidence
      • Outcomes of Commission dispute resolution under Part 6-4C
        • 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
    • Vaccination related matters
  • Practice notes
    • Appeal proceedings
    • Discontinuing matters
    • Fair hearings
    • Lawyers & paid agents
    • Orders to attend & orders to produce
    • Requests to appear remotely
    • Unfair dismissal proceedings
  • Transcripts and recordings
    • Recent transcripts
    • Ceremonial sittings transcripts

Practice note: Lawyers & paid agents

Introduction

The Lawyers and paid agents practice note provides procedural guidance on when and how:

  • a lawyer or paid agent must notify the Commission that they act for a person or have ceased to act for a person, and
  • a person must notify the Commission that they propose to be represented by a lawyer or paid agent and must seek the Commission’s permission for that representation.

On this page:

  • Commencement date
  • Application
  • Definitions
  • Lawyers and paid agents covered by s.596(4) of the Act
  • When a person must give notice that a lawyer or paid agent acts or has ceased to act for the person and how notice is given
  • When a person must have permission to be represented by a lawyer or paid agent
  • Process for a person to seek permission for a lawyer or paid agent to participate in a conference or hearing
  • Granting permission for representation
Content

Commencement date

  1. This Practice Note commences on 1 May 2020.

Application

  1. This Practice Note applies to all matters before the Commission.
  2. The purpose of this Practice Note is to provide procedural guidance on when and how:
    1. a person must notify the Commission that a lawyer or paid agent acts for them or has ceased to act for them; and
    2. a person must notify the Commission that they propose to be represented by a lawyer or paid agent and must seek the Commission’s permission for that representation.
  3. This Practice Note is intended to provide guidance for participants in matters before the Commission. It does not bind the Commission.

Definitions

  1. In this Practice Note:
Act means the Fair Work Act 2009
applicant means a person or organisation who has made an application to the Commission
Commission or FWC 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. Conferences are sometimes referred to as ‘conciliation’ or ‘mediation’
hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter
lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory. This includes barristers and solicitors, but does not include people who are legally trained but not admitted to the legal profession
matter means a proceeding before the Commission
Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner
paid agent in relation to a matter before the Commission means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter. This includes industrial relations advocates and consultants
party means an applicant, respondent or another person or organisation involved in a matter before the Commission
respondent means a person or organisation responding to an application
Rules means the Fair Work Commission Rules 2013
Serving a document means giving a copy of a document to a person or organisation. A document can be served in a number of ways, including by email, fax, express or registered post, or in person. Parts 7 and 8 of the Rules deal with service.
  1. A word or term used in this Practice Note has the same meaning as it has in the Act or in the Acts Interpretation Act 1901 as at 25 June 2009.
  1. Section 596 of the Act provides:

596 Representation by lawyers and paid agents

  1. Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
  2. The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
    1. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
    2. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
    3. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

  1. where a person is from a non-English speaking background or has difficulty reading or writing;
  2. where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
    1. The FWC's permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
    2. For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
    1. is an employee or officer of the person; or
    2. is an employee or officer of:
      1. an organisation; or
      2. an association of employers that is not registered under the Registered Organisations Act; or
      3. a peak council; or
      4. a bargaining representative 
  3. that is representing the person; or
  4.  
  5. is a bargaining representative.
  6.  

Lawyers and paid agents covered by s.596(4) of the Act

  1. Section 596 of the Act and some of the Rules treat lawyers and paid agents who are covered by s.596(4) of the Act differently to other lawyers and paid agents.
  2. For the purposes of this Practice Note, a person's lawyer or paid agent is covered by s.596(4) of the Act if the lawyer or paid agent:
    1. is an employee or officer of the person; or
    2. is an employee or officer of:
    • a registered organisation,
    • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009,
    • a peak council, or
    • a bargaining representative,
    • that is representing the person; or
    c. is a bargaining representative
    1. Examples falling under paragraph a) above, include where a company is represented by a lawyer employed by the company, and where a union is represented by a lawyer employed by the union.
    2. Examples falling under paragraph b) above, include where an employer is represented by a lawyer employed by an employer organisation that is representing the employer, and where a union member is represented by a lawyer employed by the union.
    3. An example falling under paragraph c) above, is where a person is represented in a matter relating to approval of an enterprise agreement by a lawyer or paid agent who was the person’s bargaining representative in negotiations for the agreement.

    When a person must give notice that a lawyer or paid agent acts or has ceased to act for the person and how notice is given

    Meaning of 'act for' a person

    1. In broad terms, a lawyer or paid agent acts for a person in relation to a matter before the Commission if they provide their professional services to the person in relation to the matter–for example:
    • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission;
    • preparing to appear as an advocate;
    • negotiating a settlement or compromise of the matter;
    • giving legal or other advice;
    • preparing or advising on documents (including applications, forms, affidavits, statutory declarations, witness statements, written submissions and appeal books) for use at a conference or hearing;
    • lodging documents with the Commission;
    • sending letters or emails to the Commission, another party or another lawyer or paid agent; or
    • carrying out work incidental to any of the above.

    When notice that a lawyer or paid agent acts for a person or has ceased to act is required

    1. Rule 11 provides:

    11 Notice – lawyer or paid agent acting, or ceasing to act, for person in relation to matters before Commission

    (1)If a person wants to advise the Commission that a lawyer or paid agent acts for the person in relation to a matter before the Commission, the person must lodge a notice with the Commission.
    Note 1: A person may want to lodge a notice under this subrule (and serve the notice in accordance with rule 41) so that:
    1. a lawyer or paid agent acting for the person is copied into information relating to the matter, or
    2. all other parties to the matter are given notice that costs are being incurred by the person for which a party (or their lawyer or paid agent) could be liable if an order for costs is made against them by the Commission.

    Note 2: A notice must be in the approved form–see subrule 8(2).

    (2)If:

    1. a person has lodged a notice under subrule (1) about a lawyer or paid agent in relation to a matter before the Commission; and
    2. the lawyer or paid agent of the person ceases to act for the person in relation to the matter;

    the person must lodge a notice with the Commission advising that the lawyer or paid agent has ceased to act for the person in relation to the matter.

    Note: A notice must be in the approved form–see subrule 8(2).

    1. Rule 11(1) requires a person to give notice to the Commission if they want to inform the Commission that a lawyer or paid agent acts for them in relation to a matter before the Commission. 
    2. A person may want to give notice under rule 11(1) so that the Commission and other parties will copy the lawyer or paid agent into correspondence and other documents in the matter. A person may also want to give notice under rule 11(1) to put the other parties on notice that costs are being incurred for which the other parties (or their lawyers or paid agents) could become liable if a cost order is made by the Commission.
    3. Rule 11(2) requires a person to give notice to the Commission if they have previously given notice under rule 11(1) in relation to a matter that remains before the Commission and the lawyer or paid agent has ceased to act for the person in relation to the matter.
    4. Giving notice under rule 11(2) informs the Commission and other parties that the lawyer or paid agent concerned should no longer be copied into correspondence and other documents and that costs are no longer being incurred in respect of that lawyer or paid agent.

    How a person gives notice that a lawyer or paid agent acts for them

    1. There are two ways in which a person (or a lawyer or paid agent acting for the person) can give notice that a lawyer or paid agent acts for them in relation to a matter before the Commission. First, they can give notice by identifying the lawyer or paid agent as their representative in an application or other approved Commission form that they lodge in the matter.[1] Second, they can give notice by lodging a Form F53. The notice must also be served on all of the other parties in the matter.[2]
    2. A person who wants to give notice under rule 11(1) should do so as soon as practicable after the lawyer or paid agent begins acting for them.

    How a person gives notice that a lawyer or paid agent has ceased to act for them

    1. A person (or a lawyer or paid agent acting for the person) can give notice that a lawyer or paid agent has ceased to act for them by lodging a Form F54. The notice must also be served on all of the other parties to the matter.[3]
    2. The Form F54 should be lodged as soon as practicable after the lawyer or paid agent has ceased to act for the person.

    When a person must have permission to be represented by a lawyer or paid agent

    Meaning of 'representing' a person and 'participating' in a conference or hearing

    1. The meaning of represent as used in s.596 of the Act and the Rules, is narrower than act for a person. Generally, for an activity that constitutes acting for a person in a matter before the Commission also to constitute representing the person, the activity will need to involve some interaction with the Commission itself[4] – for example:
    • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission;
    • participating in a conference or hearing other than as an advocate;
    • negotiating a settlement or compromise of the matter in a conciliation conference;
    • lodging written applications, responses, submissions and other documents with the Commission;
    • sending letters or emails to both the Commission and another party or lawyer or paid agent.
    1. Participating in a conference or hearing includes:
    • appearing as an advocate of a person in the conference or hearing (or otherwise speaking on behalf of a person in the conference or hearing); and
    • attending the conference or hearing and assisting a person to present their case without speaking on behalf of the person (such as by taking notes, providing documents or cataloguing exhibits for an advocate, or making suggestions to an advocate as how best to conduct the case).[5]

    When permission for representation is required

    1. Rule 12 provides:

    12 Representation by lawyers and paid agents

    1. For the purposes of subsection 596(1) of the Act, in any matter before the Commission, a person:
      1. must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but
      2. may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.
    Note: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.
    1. Despite paragraph (1)(a), a person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent:
      1. participating in a conference or hearing in relation to the following:
        1. a matter arising under Part 2–3 of the Act (modern awards);
        2. a matter arising under Part 2–5 of the Act (workplace determinations);
        3. a matter arising under Part 2–6 of the Act (minimum wages);
        4. a matter arising under section 510 or 512 of the Act (entry permits); and
      2. participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:
        1. an application under section 394 of the Act for an unfair dismissal remedy;
        2. an application under section 789FC of the Act for an order under section 789FF of the Act to stop bullying.
    2. Despite anything in this rule, the Commission may, in relation to a matter before the Commission, direct that a person is not to be represented in the matter by a lawyer or paid agent except with the permission of the Commission.
    3. To avoid doubt, nothing in paragraph (2)(b) is to be taken as permitting a person to be represented in a matter by a lawyer or paid agent participating in a conference before a Commission Member in relation to an application under section 394 or 789FC of the Act without the permission of the Commission.
    1. Under rule 12(1)(a) and s.596 of the Act, a person requires the Commission’s permission to be represented by a lawyer or paid agent participating in a conference or hearing. This requirement for permission does not apply to lawyers and paid agents who are covered by s.596(4) of the Act[6] or to matters excluded under rule 12(2) (see paragraphs 29–30), unless the Commission directs otherwise (see paragraph 28).
    2. Under rule 12(1)(b) and s.596 of the Act, apart from participating in a conference or hearing, a person’s lawyer or paid agent can act for and represent the person without permission, unless the Commission directs otherwise. For example, unless the Commission directs otherwise, the lawyer or paid agent can:
    • prepare and lodge written applications, responses, submissions and other documents with the Commission; and
    • correspond with the Commission and other parties.
    1. Under rule 12(3) and s.589 of the Act, the Commission may direct that a person is not to be represented by a lawyer or paid agent in a matter before the Commission, except with the permission of the Commission.

    Matters that are excluded from the requirement for permission under rule 12(2)

    1. Under rule 12(2)(a), unless the Commission directs otherwise, permission is not required for a lawyer or paid agent to participate in a conference or hearing in relation to the following kinds of matters:
    • a matter arising under Part 2–3 of the Act (these matters involve making, varying and revoking modern awards);
    • a matter arising under Part 2–5 of the Act (these matters involve low-paid workplace determinations, industrial action related workplace determinations and bargaining related workplace determinations);
    • a matter arising under Part 2–6 of the Act (these matters involve the setting and variation of minimum wages); and
    • a matter arising under section 510 or 512 of the Act (these matters involve the issue, revocation or suspension of entry permits)
    1. Under rule 12(2)(b), unless the Commission directs otherwise, permission is not required for participation by a lawyer or paid agent in a conference conducted by a member of the staff of the Commission (rather than a Member) in relation to:
    • an unfair dismissal application (an application under s.394 of the Act); or
    • an anti-bullying application (an application under s.789FC of the Act).

    Process for a person to seek permission for a lawyer or paid agent to participate in a conference or hearing

    When a person must give notice that they will seek permission and how notice is given

    1. Rule 12A provides:

    12A Notice–proposed representation in a conference or hearing

    1. If:
      1. a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing relating to the matter; and
      2. the participation requires permission under rule 12;
    2. the person must lodge a notice with the Commission informing the Commission that the person will seek the Commission’s permission for a lawyer or paid agent to participate in the conference or hearing.
    Note 1: The notice must be in the approved form—see subrule 8(2).
    Note 2: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.
    1. The Commission may permit a person to be represented by a lawyer or paid agent in a matter before the Commission even if the person fails to comply with subrule (1).
    1. Under rule 12A(1), if a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing and that participation requires the permission of the Commission[7], the person must give the Commission notice that they will seek permission.
    2. A person (or a lawyer or paid agent acting for the person) can give the Commission notice that they will seek permission by lodging a Form F53. The notice must also be served on all of the other parties to the matter.[8]

    The usual Commission process

    1. The following paragraphs describe the usual process for the Commission to deal with a request for permission to be represented by a lawyer or a paid agent in a conference or hearing conducted by a Member.[9] This process may not be followed in every case.
    2. Once a person has given notice that they will seek permission[10], where practicable, the Commission will direct the person to lodge and serve on the other parties a written submission of no more than 2 pages that identifies:
    • the lawyer or paid agent the person is seeking permission to have participate in the conference or hearing; and
    • the reasons why permission should be granted, having regard to the criteria in s.596(2) of the Act (see paragraph 40).
    1. The other parties will then be given an opportunity to respond in writing, indicating whether they oppose the request for permission and, if so, the reasons why they oppose it. Where practicable, the Commission will decide whether to grant permission and advise the parties of its decision prior to the conference or hearing.
    2. Where it is not practicable to obtain written submissions before the conference or hearing, the Commission will ask for oral submissions to be made at the start of the conference or hearing. Oral submissions should generally not exceed 5 minutes and must address the criteria in section 596(2) of the Act.
    3. A person seeking to be represented in a conference or hearing should not assume that permission will be granted, and must be prepared to proceed with the conference or hearing in the event that their representative is not permitted to participate. If permission is refused the person may seek an adjournment, but whether an adjournment is granted will be a matter for the Member conducting the conference or hearing.
    4. Members do not normally provide detailed reasons for decisions on representation.

    Granting permission for representation

    1. When permission for a person to be represented by a lawyer or paid agent is required under s.596 of the Act, the Commission may grant permission only if:
    • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
    • it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
    • it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.[11]
    1. The Commission may decline to grant permission even though one or more of the above criteria are satisfied.[12]
    2. Examples of circumstances where a person may be granted permission include:
    • where the person is from a non-English speaking background;
    • where the person has difficulty reading or writing; and
    • where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.[13]
    1. In deciding whether or not to grant permission for a person to be represented by a lawyer or paid agent, the Commission does not select who the person's lawyer or paid agent will be.[14]

    References

    Content

    [1] For example, by inserting the lawyer or paid agent’s details into the section on representation in the Form F2–Unfair dismissal application or the Form F3–Employer response to unfair dismissal application.

    [2] See the service requirements for the Form F53 and other matter forms in Schedule 1 to the Rules.

    [3] See the service requirements for the Form F54 in Schedule 1 to the Rules.

    [4] For Commission decisions that consider the nature of representation, see for example Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [34]-[35], [52]-[53]; Kolobius v Uniting Church in Australia Property Trust (Q) [2018] FWCFB 1057 at [36]; Rodl v Qantas Airways Limited [2018] FWCFB 6693 at [65].

    [5] See Fitzgerald v Woolworths Limited [2017] FWCFB 2797; Kolobius v Uniting Church in Australia Property Trust (Q) [2018] FWCFB 1057.

    [6] See paragraph 9 above.

    [7] See paragraphs 26–30 above.

    [8] See the service requirements for the Form F53 in Schedule 1 to the Rules.

    [9] Unless the Commission directs otherwise, permission is not required for a lawyer or paid agent to participate in a conference conducted by a staff conciliator in relation to an unfair dismissal application or an anti-bullying application (see paragraph 30 above). Permission is required for a lawyer or paid agent to participate in a conference conducted by a staff conciliator in relation to a general protections dismissal dispute (an application under s.365 of the Act), and will usually be decided on the basis of oral submissions made at the start of the conference.

    [10] See paragraphs 32–33 above.

    [11] Section 596(2) of the Act.

    [12] See NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [25]; Grabovsky v United Protestant Association of NSW Limited [2018] FWCFB 4362 at [36]; Budd v Australian Federal Police [2018] FWCFB 6948 at [3].

    [13] See the Note to s.596(2) of the Act.

    [14] See NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [24]; Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [32]; Grabovsky v United Protestant Association of NSW Limited [2018] FWCFB 4362 at [38]. However, see further NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [25].

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    Published by the Fair Work Commission (www.fwc.gov.au)
    Last updated: 17 Feb 2022
    Location on last update: https://www.fwc.gov.au/hearings-decisions/practice-notes/practice-note-lawyers-paid-agents