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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
        • 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
        • 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
    • 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
    • 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
      • 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
      • 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)
        • 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)
          • Union declaration for a greenfields agreement (Form F21)
          • 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)
        • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
      • 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)
    • Awards
      • Find an award
      • Create or change an award
        • Applications to 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
  • 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
      • 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 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
          • 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 IPCA (VIC, ACT & NT) Agreement 2011
      • Equal Remuneration and Work Value Case
        • Applications
        • Correspondence
        • Decisions and statements
        • Legislation
        • Notices of listing and directions
        • Orders
        • Papers
        • Submissions
        • Timetable
        • Transcript
      • 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
      • Undergraduate qualifications review
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Submissions
        • Transcript
      • Previous major cases
        • 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
        • 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
    • 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
          • 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
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Practice note: Orders to attend & orders to produce

Introduction

The Orders to attend and orders to produce practice note provides procedural guidance in relation to orders to attend and orders to produce. It provides a general explanation of the process for requesting such orders and the procedures followed by the Commission in making and giving effect to these orders or declining to make orders.

On this page:

  • Introduction
  • Definitions
  • Legislation – powers of the Commission to inform itself
  • Background
  • Orders to attend
  • Orders to produce
  • Attachment 1–F51–Example of completed draft order to attend
  • Attachment 2–F52–Example of completed draft order to produce documents
Content

Introduction

Commencement date

  1. This practice note commences on 1 August 2019 and replaces practice note No.1/2016.

Application

  1. This practice note applies to orders for a person to attend proceedings in the Fair Work Commission and orders for a person to produce documents to the Commission.
  2. The purpose of this practice note is to provide a general explanation of the usual processes for requesting, making and giving effect to orders to attend and orders to produce. It does not bind the Commission.
  3. This practice note should be read together with the Fair Hearings Practice Note.

Definitions

  1. In this practice note:

    Act means the Fair Work Act 2009

    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

    decision means a decision, order, determination or other directional ruling made by a Commission Member

    document includes records and other information

    hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter

    main matter means the matter before the Commission that a request for an order relates to

    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

    order to attend means an order of the Commission requiring a person to attend a conference or hearing

    order to produce means an order of the Commission requiring a person to produce documents

    party means an applicant, respondent or another person or organisation involved in a matter before the Commission

    Rules means the Fair Work Commission Rules 2013

    service of a document means giving a copy of the 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.

    set aside an order means to cancel or override the order. If an order is set aside by a Member the parties will not be required to comply with the terms of that order.

    sworn evidence means evidence provided under oath or affirmation.

  2. A word or term used in this practice note has the same meaning as defined in the Act or as defined in the Acts Interpretation Act 1901 as at 25 June 2009.

Legislation – powers of the Commission to inform itself

  1. Section 590 of the Act provides for the manner in which the Commission may inform itself in relation to any matter before it:

    Part 5-1—The Fair Work Commission

    Division 3—Conduct of matters before the FWC

    Subdivision B—Conduct of matters before the FWC

    590 Powers of the FWC to inform itself

    1. The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
    2. Without limiting subsection (1), the FWC may inform itself in the following ways:
      1. by requiring a person to attend before the FWC;
      2. by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
      3. by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
      4. by taking evidence under oath or affirmation in accordance with the regulations (if any);
      5. by requiring an FWC Member, a Full Bench or Expert Panel to prepare a report;
      6. by conducting inquiries;
      7. by undertaking or commissioning research;
      8. by conducting a conference (see section 592);
      9. by holding a hearing (see section 593).
  1. Rules 53 and 54 of the Rules provide for orders to attend and orders to produce respectively:

    53 Order for witness to attend

    1. A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by issuing an order requiring a person to attend before the Commission under subsection 590(2) of the Act.

      Note: The request must be in the approved form—see subrule 8(2).

    2. If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to attend before the Commission and, unless the order has been published on the Commission’s website, upon every other party in the matter.

    54 Order for production of documents

    1. A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by requiring a person to provide copies of documents or records, or provide any other information, under subsection 590(2) of the Act.

      Note: The request must be in the approved form—see subrule 8(2).

    2. If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to produce the documents, records or other information and, unless the order has been published on the Commission’s website, upon every other party in the matter.
    3. The order may be satisfied by producing the documents, records or other information specified in the order to the General Manager or other employee of the Commission at the place specified in the order no later than 4 pm on the day before the day specified in the order for the provision of the documents, records or other information.
  1. In addition to Rules 53 and 54 (above) Schedule 1 to the Rules includes instructions for service of an application for and order to attend (Form F51) and an application for an order to produce (Form F52).

Schedule 1 — Instructions as to service

Column 1:

Form
Column 2:

Type of document
Column 3:

Form title
Column 4:

Provision
Column 5:

Service by
Column 6:

Service on
Column 7:

Period in which service must be effected

Form F51

Procedural

Application for an order requiring a person to attend before the Commission

Rule 53

Applicant

Subject to an order of the Commission, the person who is required to attend before the Commission and, unless the application has been published on the Commission’s website, every other party in the matter

Subject to an order of the Commission, as soon as practicable after lodgement with the Commission

Form F52

Procedural

Application for an order for production of documents, records or information to the Commission

Rule 54

Applicant

Subject to an order of the Commission, the person who is required to produce the documents, records or information and, unless the application has been published on the Commission’s website, every other party in the matter

Subject to an order of the Commission, as soon as practicable after lodgement with the Commission

Background

  1. The Commission can make orders requiring a person to attend Commission proceedings and orders requiring a person to produce documents, so as to obtain information relevant to a matter before it. Orders to attend and orders to produce assist the Commission to make informed decisions based on reliable evidence and facilitate the efficient conduct of matters before the Commission.
  2. Orders to attend or to produce can be made on request by a party to a matter (the requesting party) or by a Member on the Member’s own initiative. In either case, it is important that orders are drafted with as much precision as practicable so that the responding party knows what they have to do to comply with the order.
  3. Orders to attend or to produce can be directed to other parties involved in a matter or to third parties such as witnesses who can give evidence about a relevant event or who are in possession of relevant documents.
  4. A person to whom an order to attend or to produce applies must comply with the order. Pursuant to ss.675 and 677 of the Act, failure to comply with an order to attend or to produce is an offence which carries a maximum penalty of 12 months’ imprisonment. The Commission can also make adverse findings or adverse comments in published decisions based on a person's failure or refusal to comply with an order.

Orders to attend

Requesting an order to attend

  1. An order to attend enables a party to require a person to attend a conference or hearing so as to participate in the proceedings and/or to give sworn evidence to the Commission.
  2. A request for an order to attend must be made by lodging a Form F51 with the Commission. Form F51 can be downloaded from the Forms page of the Commission’s website. A party can make a request for orders to attend at any stage of a matter. However, there is generally an appropriate or logical time to make the request and a request for orders to attend may be declined if it is premature or too late. For example, in the context of an unfair dismissal application, such requests are ordinarily made in the weeks leading up to the hearing.
  3. Form F51 contains a draft order which must be completed by the requesting party.
  4. If the requesting party is seeking the attendance of more than one person, a separate draft order must be completed for each person and attached to the Form F51. An example of a completed draft order is at Attachment 1 to this practice note.
  5. Unless the Commission has ordered otherwise, as soon as practicable after lodging the Form F51 with the Commission, a copy of the Form F51 including the draft order must be served on the person who is to be required to attend before the Commission and, unless the application has been published on the Commission’s website, every other party to the matter.
  6. For major cases, the Commission may publish applications for orders to attend, and any such order it makes, on its website. Recognising that it may be onerous to require service on all interested parties in major cases, there is no requirement to serve a copy of the application or the order (if made) if it has been published on the Commission’s website.

Considering a request for an order to attend

  1. When the Commission receives a request for an order to attend, the Member responsible for the main matter will decide whether or not to issue the order. In deciding whether or not to issue the order, the Member will consider whether attendance at the conference or hearing by the person to whom the order will apply will assist in the resolution of the main matter. The requesting party will be notified of the Member’s decision. Depending on the context of the request in relation to the main matter, the decision may or may not be in writing and may or may not be accompanied by written reasons - see s.601 of the Act.
  2. If the conference or hearing at which the order requires attendance is adjourned, so that the date for attendance is changed, the requesting party must request the Commission to vary the order to reflect the new attendance date.

Serving the order

  1. If the order is made it will be signed and sealed by the Member and returned to the requesting party. The requesting party must serve the order on the person to whom the order applies and, unless the order has been published on the Commission’s website, must also serve the order on the other parties to the matter. Service must be effected by the requesting party as soon as practicable after the order is made. Service is most commonly effected by email - i.e. the requesting party emails a PDF scan of the order to the responding party. Rule 42 of the Rules sets out the requirements for valid service.

Complying with or objecting to an order to attend

  1. The order to attend will specify a time, date and place for attendance of the person to whom the order applies. The person must attend the conference or hearing as and when directed by the Commission.
  2. A person required to attend to give evidence can be examined in chief or cross examined with the permission of the presiding Member, and may also be questioned by a Member to clarify the evidence given.
  3. If a person is ordered to attend at a time or date that is not convenient, the person can ask the Commission to vary the order to allow him or her to attend at a different time or date. The Commission will consider such a request taking into account all of the circumstances. Most Commission premises have videoconferencing facilities that can be used to give evidence remotely. However, the default mode of giving evidence is by being physically present and requests to appear by videolink are considered on a case by case basis and are subject to the availability of equipment and resources.
  4. A person ordered to attend or another person having a sufficient interest can request to have the order set aside or varied. This request must be made in writing addressed to the Member who made the order, must set out the reasons why the person is seeking to have the order set aside or varied, and must be served on the requesting party.
  5. On receipt of a request to have an order set aside or varied, the Commission may list the matter for a conference or hearing, or may make a decision based on written submissions from the applicant and the requesting party.

Orders to produce

Requesting an order to produce

  1. An order to produce enables a party to require a person (including a third party) to produce documents to the Commission. A person is only required to produce documents that are in their possession, custody or control. A person is not required to create documents to comply with an order to produce.
  2. A request for an order to produce must be made by lodging a Form F52 with the Commission. Form F52 can be downloaded from the Forms page of the Commission’s website.
  3. Form F52 contains a draft order which must be completed by the requesting party. An example of a completed draft order is at Attachment 2 to this practice note.
  4. Documents that can be requested include material such as time and wages records, documents on a personnel file, a workplace policy or procedural documents, or CCTV footage. The documents must be specified with reasonable particularity and have an apparent relevance to issues in the main matter before the Commission (see Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19]; APESMA v Airly Coal Pty Ltd PR962479 at [12]).
  5. The draft order must be directed to a specified person who the requesting party believes has possession, custody or control of the material sought. Where the documents are held by a company or other organisation and it is not clear which individual has possession, custody or control, the draft order can be directed to the ‘Proper Officer’ of the company or organisation.
  6. Unless the Commission has ordered otherwise, as soon as practicable after lodging the Form F52 with the Commission, a copy of the Form F52 including the draft order must be served upon the person who is to be required to produce documents to the Commission and, unless the application has been published on the Commission’s website, every other party to the matter.
  7. For major cases, the Commission may publish applications for orders to produce, and any such order it makes, on its website. Recognising that it may be onerous to require service on all interested parties in major cases, there is no requirement to serve a copy of the application or the order (if made) if it has been published on the Commission’s website.

Considering a request for an order to produce

  1. When considering whether to grant an order to produce, the Commission will consider the issues between the parties to the main matter and whether the documents sought have an apparent relevance to the issues (see Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19]; APESMA v Airly Coal Pty Ltd PR962479 at [12]).
  2. The Commission may grant the order as requested, grant the order in a varied form or refuse to grant the order. Prior to granting the order the Member may require the requesting party to provide reasons why the order is sought or conduct a hearing/conference to determine whether the order should be issued. The requesting party will be notified of the Member’s decision. Depending on the context of the request in relation to the main matter, the decision may or may not be in writing and may or may not be accompanied by reasons - see s.601 of the Act.

Serving the order

  1. If the order is made it will be signed and sealed by the Member and returned to the requesting party. The requesting party must serve the order on the person to whom the order applies and, unless the order has been published on the Commission’s website, must also serve the order on the other parties to the matter. Service must be effected by the requesting party as soon as practicable after the order is made. Service is most commonly effected by email - i.e. the requesting party emails a PDF scan of the order to the responding party. Rule 42 of the Rules sets out the requirements for valid service.

Complying with or objecting to an order to produce

  1. An order to produce will specify the time, date and location (usually the offices of the Commission) at which the documents must be produced to the Commission. Instead of attending and producing the documents at the specified time, the person to whom the order applies can also comply with the order by delivering the documents to the General Manager or an employee of the Commission at the specified location no later than 4pm the day before the date specified in the order.
  2. The responding party can request to have the order set aside or varied. This request must be made in writing addressed to the Member who made the order, must set out the reasons why the person is seeking to have the order set aside or varied, and must be served on the requesting party.
  3. The responding party may object to producing the documents on various grounds including that: they contain information which is confidential (see National Employers’ Mutual Insurance General Insurance Assoc v Waind and Hill (1978) 1 NSWLR 372 at 381; cited in APESMA v Airly Coal PR962479 at [13]), commercially sensitive or legally privileged; they are not relevant; producing the documents involves an unwarranted intrusion into the responding party's privacy (see Faulkner v BHP [2014] FWC 5134); the requesting party is on a “fishing expedition”; or because it would be too onerous or oppressive to comply with the order (see Clerks (Alcoa) Case (H2892)).
  4. On receipt of a request to have an order set aside or varied, the Commission may list the matter for a conference or hearing, or may make a decision based on written submissions from the responding party and the requesting party.

Inspection of documents produced

  1. When documents have been produced to the Commission in compliance with an order to produce, a party may, with the approval of the Commission, inspect and copy the documents at the Commission's offices. This can be done by contacting the Chambers of the Member who issued the order for production. The Commission will notify all parties to the matter when documents are produced.
  2. Objections to inspection and copying of the documents may be made for various reasons including that the documents are confidential. The Commission may call the matter on for a hearing or conference to deal with any objection(s).
  3. The documents that are produced cannot be removed from the Commission’s offices. The documents can be copied by the Commission upon request, but the Commission will charge for doing so.
  4. Documents produced in compliance with an order to produce must only be used for the purpose of conducting the relevant matter in the Commission. They cannot be used for any other purpose, except with the written authorisation of the Commission.

Attachment 1–F51–Example of completed draft order to attend

Download: 

  • Attachment 1–F51–Example of completed draft order to attend (pdf)

Attachment 2–F52–Example of completed draft order to produce documents

Download: 

  • Attachment 2–F52–Example of completed draft order to produce documents (pdf)

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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-orders-attend-orders-produce