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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
      • Sexual harassment that occurred or started before 6 March 2023
        • 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
        • Apply to stop sexual harassment at work
        • Respond to an application about sexual harassment at work
        • The Commission’s process to resolve sexual harassment at work
        • Conciliation about sexual harassment at work
        • Conferences and hearings about sexual harassment at work
      • Sexual harassment commencing from 6 March 2023
        • The prohibition on workplace sexual harassment
        • What is sexual harassment in connection with work?
        • Who can apply to us to deal with a sexual harassment dispute
        • Sexual harassment and discrimination, the general protections and work health and safety
        • What to do if you’re sexually harassed in connection with work
        • The process for sexual harassment dispute claims
        • How to apply to us to deal with a sexual harassment dispute
        • Apply to resolve a sexual harassment dispute (Form F75)
        • How to respond to a sexual harassment dispute application
        • Respond as an individual to an application to deal with a sexual harassment dispute (Form F76)
        • Respond as an employer or principal to an application to deal with a sexual harassment dispute (Form F77)
        • Member conferences and determinative hearings is sexual harassment disputes
          • Member conferences in sexual harassment disputes
          • Determinative conferences and hearings in sexual harassment disputes
          • Keeping the sexual harassment dispute case confidential
        • Sexual harassment disputes that are not resolved
    • 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
        • Types of zombie agreements
        • Our list of possible zombie agreements
        • What to do if you have a zombie agreement
        • Extending a zombie agreement
        • Apply to extend a zombie agreement (Form F81)
    • 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
        • Modern Awards Pay Database API
      • 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
    • Gender pay equity
      • Gender pay equity in the Fair Work Act
      • Equal remuneration orders
      • Apply for an equal remuneration order (Form F46A)
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Additional material for the Annual Wage Review 2022-23
          • Correspondence for the Annual Wage Review 2022–23
          • Decisions & statements for the Annual Wage Review 2022–23
          • Notices of listing for the Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Statistical reporting for the Annual Wage Review 2022–23
          • Submissions for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
          • Transcripts 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
      • 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
      • 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
        • Ballot for withdrawal of Manufacturing 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
        • Svitzer Australia Pty Limited industrial action
        • 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
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        • 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
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        • Termination of an agreement about days or times of work
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        • Discontinuing an application
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        • Contravening an order of the Commission
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        • Role of the Court
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      • Attachment 5 – Jobkeeper provisions that continue to apply on or after 29 March 2021
    • References in the benchbooks
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    • Requests to appear remotely
    • Unfair dismissal proceedings
  • Transcripts and recordings
    • Recent transcripts
    • Ceremonial sittings transcripts

Practice note: Unfair dismissal proceedings

Introduction

The Unfair dismissal proceedings practice note provides procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which:

  • do not settle at conciliation, or
  • do not proceed to conciliation conducted by conciliators.

On this page:

  • Commencement date
  • Application
  • Definitions
  • Legislation
  • Background
  • Jurisdictional & interlocutory decisions
  • Process options for determining the merits of an unfair dismissal application
  • Listing solely as a conference
  • Conferences
  • Hearings
  • Case management issues
  • Representation at the conference or hearing
  • Further information
Content

Commencement date

  1. This practice note commences on 9 December 2014.

Application

  1. The practice note applies to unfair dismissal applications lodged with the Fair Work Commission.

  2. The purpose of this practice note is to provide procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators.

  3. In accordance with s.590 the Commission may inform itself in relation to a matter before it in such a manner as it considers appropriate. Accordingly, a Member may vary the operation of this practice note by direction or order.

Definitions

  1. In this practice note:
Act means the Fair Work Act 2009
applicant means a person who has made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009
Commission means the Fair Work Commission
conciliation means the conduct of a conciliation to resolve an unfair dismissal application that is conducted by a conciliator, usually by telephone, prior to the matter being referred to a Member. Conciliation is conducted in private, is not recorded and no decision published.
conciliator means a person appointed to conduct conciliation of unfair dismissal applications prior to the matter being referred to a Member for arbitration
decision means a decision, order, determination or other procedural ruling made by a Member of the Commission
conference means a conference conducted under s.398 of the Act before a Member, where the Member makes a final determination about the unfair dismissal application. Conferences are conducted in private, are recorded and result in a decision being published
Determination on the papers means a decision made on the basis of written material filed in accordance with a direction or requirement of a Member
determinative conference see conference
directions means a notice issued by the Commission to the parties which sets out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents
employee organisation means an employee organisation registered under the Fair Work (Registered Organisations) Act 2009
employer organisation means an employer organisation registered under the Fair Work (Registered Organisations) Act 2009
hearing means a proceeding before the Commission under s.399 of the Act to allow the parties to present their evidence and submissions in relation to a matter. Unless the Member orders otherwise hearings are open to the public. A hearing is recorded and results in a decision.
interlocutory decision means a decision of the Commission about a procedural matter such as an order to produce documents or an order for a witness to attend a hearing
Member means a Member of the Commission, including the President, a Vice President, a Deputy President or a Commissioner
mention is a hearing held to deal with procedural or interim matter
party means an applicant or respondent involved in a matter before the Commission
peak council means a national or state council or federation that is effectively representative of a significant number of organisations (within the ordinary meaning of the term) representing employers or employees in a range of industries
preliminary conference or hearing means a conference or hearing to deal with a procedural issue
represented means an applicant or a respondent who is represented by a lawyer, paid agent, employee or officer of the party, peak council, employee organisation or employer organisation
respondent means an employer identified by the applicant as their employer at the time the applicant was dismissed
requirements means a notice issued by the Commission which sets out a timetable for the parties to provide to the Commission and the other party a statement of facts, a statement of evidence and relevant documentary material. A requirement has the same force as a direction.
Rules means the Fair Work Commission Rules 2013
self represented means an applicant or respondent who is not represented by a lawyer, paid agent, employee or officer of the party, peak council, employee organisation or employer organisation
sworn evidence means evidence provided under oath (which is a religious commitment to tell the truth) or affirmation (which is a non-religious commitment).
  1. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

Legislation

  1. The following extracts from the Act are relevant:

    Part 3-2 - Unfair Dismissal

    Division 1 - Introduction

    s.381 Object of this Part

    1. The object of this Part is:
      1. to establish a framework for dealing with unfair dismissal that balances:
        1. the needs of business (including small business); and

        2. the needs of employees; and

      2. to establish procedures for dealing with unfair dismissal that:
        1. are quick, flexible and informal; and

        2. address the needs of employers and employees; and

      3. to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

    2. The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.

      Note: The expression ‘fair go all round’ was used by Shelton J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

    Division 5 - Procedural Matters

    s.397 Matters involving contested facts

    The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which are in dispute.

    s.398 Conferences

    1. This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.
    2. Despite subsection 592(3), the FWC must conduct the conference in private.

    3. The FWC must take into account any difference in the circumstances of the parties to the matter in:
      1. considering the application; and

      2. informing itself in relation to the application.

    4. The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:
      1. considers the application; and

      2. informs itself in relation to the application.

    s.399 Hearings

    1. The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:
      1. the views of the parties to the matter; and

      2. whether a hearing would be the most effective and efficient way to resolve the matter.

    2. If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

    3. The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

Background

  1. This practice note is set out in sections which cover:
    • Jurisdictional and interlocutory matters (including seeking adjournments)
    • Processes for determining a matter (hearings and conferences)
    • Preparing for and conduct of a conference
    • Preparing for and conduct of a hearing
    • Case management
    • Representation by a lawyer or paid agent

    This practice note should be read together with the Fair hearings practice note, Lawyers and paid agents practice note, Orders to attend and orders to produce practice note, 

  2. When applying for an unfair dismissal remedy the applicant may ask for reinstatement, a monetary amount or some other remedy.

  3. When unfair dismissal applications are received by the Commission, they are generally scheduled by the Commission’s Client Services Team for conciliation. Unfair dismissal applications which do not settle at or do not proceed to conciliation are allocated to an individual Member. Prior to allocation to a Member, unfair dismissal applications are managed by the Case Management Team under the direction of the Practice Leader Termination of Employment (the Practice Leader).

  4. Upon allocation to a Member for determination, the parties may be invited by the Member to participate in further settlement discussions by way of a conciliation before a Member. This usually occurs prior to the commencement of a conference or hearing. Conciliation is not compulsory at this stage and either party may decline to participate.

  5. Generally, throughout the course of proceedings any correspondence or documents sent to the Commission must also be sent to the other party or their representative. When this is not done, the Commission may forward a copy to the other party (or their representative). Parties who are concerned about correspondence or documents being forwarded by the Commission to the other party or their representative (for example, if it contains personal medical details or other confidential information) should contact the Commission to discuss their options before sending it to the Commission.

  6. The Commission coordinates the Workplace Advice Service (the Service) which provides free legal advice to unrepresented parties (applicants and respondents) on matters including unfair dismissal. The Commission partners with private legal firms, legal aid and community legal centres who provide legal advice. The Service is currently available in Queensland, New South Wales, Victoria, South Australia and Western Australia. Parties can find out more about the Workplace Advice Service by visiting the Commission website. There is an online eligibility check and request form on this site.

  7. At a conference or at a hearing a Member may make a determination that the dismissal was unfair, and make an order for a remedy if they decide it is appropriate, or they may make an order that the application be dismissed. An application may also be dismissed in accordance with the Commission’s general dismissal powers under s.587, or on application by the respondent under s.399A of the Act.

  8. As outlined in paragraph 7, above, the objects of the Part 3-2 of the Act, which deals with unfair dismissal, include that the procedures for dealing with unfair dismissals should be quick, flexible and informal, and should address the needs of employers and employees.

Jurisdictional & interlocutory decisions

  1. The Member (or Practice Lead prior to allocation to a Member) will determine any interlocutory requests which can include adjournment of hearing dates, extensions of time for filing documents, notices to produce documents or notices requiring a person to attend.

Jurisdictional objections

  1. In circumstances where the respondent makes a jurisdictional objection to the application, the issue of jurisdiction may be heard before the main unfair dismissal application. In certain cases the jurisdictional objection will be heard in conjunction with the merits of the case. The process is the same as the process for determining the merits of the application which is set out below.

Extensions of time

  1. If an extension of time to file material in accordance with directions or requirements issued by the Commission is required, a written request must be made to the Commission prior to the date on which the material is due to be filed. The request must set out reasons for the request and provide supporting material. For example if a party has been sick, a medical certificate or statutory declaration must be provided. If the other party objects to the request the Member may decide the extension of time matter and it may be determined on the papers.

Adjournments

  1. An adjournment of an unfair dismissal application will only occur if there are substantial grounds for the adjournment application.

  2. A request for an adjournment must be made in writing, preferably to the chambers of the Member who has been allocated the file. A list of chambers' email addresses can be found on the Contact us page of our website.

  3. An adjournment request may be granted where the request is substantiated by documentary evidence. Examples where a request may be granted include:
    • where illness of the applicant or a significant person in the respondent’s business or a witness would prevent them from attending a proceeding. A medical certificate must be provided by the requesting party to substantiate the request
    • unavailability of a representative that started acting for a party before the application was listed for hearing
    • death or serious injury of a family member of an applicant, a significant person in the respondent’s business or a witness, or
    • where the applicant, a significant person in the respondent’s business, a witness or a representative will be interstate or overseas and the travel was booked before the application was listed for hearing. The Commission may ask for proof that the booking was made prior to the matter being listed for hearing.
  4. The other party will be asked to comment on the adjournment request prior to a decision being made by the Commission.

Orders for the production of documents

  1. A party may apply for an order requiring another party to the matter (or a third party) to produce documents to the Commission. The documents sought must be relevant to matters in dispute between the parties. The requesting party must set out:
    • the specific documents or class of documents being sought
    • why the documents are sought
    • how the provision of the documents will assist the Commission in determining the matter.
  2. The Member will consider the merits of the application and determine whether an order should be granted.

  3. A party served with an order to produce documents may object to the order by applying to have the order to produce set aside. A party may object to producing documents because they contain information which is confidential, commercially sensitive or legally privileged, to produce the documents is onerous, because they are not relevant or the request is a "fishing" exercise. The objecting party must file with the Commission and serve on the other party an application to set aside the order setting out the reasons for the application. The application must be made prior to the compliance date of the order. The Member dealing with the file may list the matter for a preliminary conference or hearing or determine the application on the papers with the consent of the parties.

  4. Documents produced can only be used for the purposes of conducting the relevant matter in the Commission. They cannot be used for any other purpose except with the written authorisation of the Commission.

  5. Documents produced under an order of the Commission remain at the offices of the Commission. Any party wishing to inspect the documents should contact the chambers of the Member who issued the order.

  6. If there is any objection to a party accessing documents produced under an order, the matter will be referred to the Member who issued the order who will determine whether access should be granted. The Member may conduct a preliminary conference or hearing for this purpose.

  7. A person ordered to produce documents to the Commission must comply with the order.

  8. Further information can be found in the Orders to attend and orders to produce practice note.

Orders for attendance

  1. An application for an order to attend allows parties in dispute to request that a witness(es) attend a conference or hearing and give evidence under oath or affirmation to the Commission. The requesting party must set out:
    • the person(s) whose attendance is required
    • why their attendance is being sought
    • how the appearance of the person(s) will assist the Commission in reaching a decision.
  2. The Member allocated the file will then consider the merits of the application and determine whether an order should be granted.

  3. A person served with an order to attend may object to the order by applying to have the order to attend set aside. The person must file with the Commission and serve on the party who applied for the order an application to set aside the order setting out the reasons for the application. The application must be made prior to the compliance date of the order. The Member may list the matter for a procedural hearing or with the consent of the parties determine the application on the papers.

  4. If the person objects to attending they may make an application to the Commission for the order to be set aside. This matter will be determined by the Member who has been allocated the file.

  5. A person ordered to attend the Commission must comply with the order.

  6. Further information can be found in the Orders to attend and orders to produce practice note.

Process options for determining the merits of an unfair dismissal application

  1. In circumstances where an unfair dismissal application does not resolve (either by settlement or discontinuance) at conciliation, or conciliation does not proceed the Act provides that the Commission must determine the matter in one of the following ways:
    • a private conference under s.398 of the Act, or
    • a public hearing under s.399 of the Act.
  2. The wording of s.398 and s.399 indicate a legislative intention that unfair dismissal matters be determined by the Commission at a conference where possible. This is apparent by the introductory words of s.399(1), which provide that the Commission ‘must not hold a hearing ... unless it considers it appropriate to do so’. This legislative direction is not present in s.398, which deals with conferences. For the purposes of this practice note, conferences are referred to as conferences to ensure the parties are aware that their matter will be finally determined by the Commission following the conduct of the conference.

  3. The Member allocated to the unfair dismissal application will decide, taking into account the wishes of the parties, whether determination of the application should proceed as a conference or hearing in accordance with s.398 and s.399 of the Act.

  4. In accordance with s.399(3), the Member dealing with an application may switch between a conference and a hearing during the course of proceedings if this will assist resolution of the issues.

Listing solely as a conference

  1. In matters where both the applicant and respondent are self represented, unfair dismissal applications may be scheduled for final determination by a conference.

  2. An applicant or respondent may object to the application being dealt with by conference by lodging an objection using Form F48, available from the Commission’s website. Parties who object to the matter proceeding to conference must justify their reasons for seeking to have the matter listed for hearing. The objection shall be considered and determined by the Commission. After hearing the views of the applicant and respondent, the Commission may decide to either:
    • maintain the scheduling of the application as a conference proceeding, or
    • refer the application for scheduling as a hearing.

Conferences

Preparing for a conference

  1. After an application is scheduled for conference, the Commission will issue requirements (often referred to as directions) to the parties, setting out a timetable for the provision of relevant information to the Commission and to the other party. Either party may apply to the Commission to vary the requirements by completing and filing Form F48 or otherwise making a request in writing.

  2. The objective of the requirements is to make the other party aware of issues and/or facts that will be raised and evidence that will be relied upon in the conference. The requirements are not as formal as the written submissions that must be filed in a hearing and are therefore less onerous for parties who do not have the assistance of a legal representative or paid agent or other professional assistance (such as a registered organisation).

  3. The applicant and respondent will be required to provide to the Commission and the other party:
    • an outline of argument setting out facts which support their case and which are relevant to the determination of the matter by the Commission. The applicant’s statement of facts should include the remedy they are seeking, which may be reinstatement, compensation or some other outcome. If the applicant is seeking compensation, they should include a monetary amount.
    • a statement of evidence for each person who will attend the conference to give evidence (including the applicant or the respondent), setting out:
      • the name and title/position of the witness
      • in dot points, the facts, events or conversations it is expected the person will give in evidence at the conference, and
      • copies of documents the applicant or respondent will rely on at the conference.
  4. The Commission’s website has a range of checklists and guides to assist the applicant and respondent in meeting these requirements. Case Management Team members are able to assist the parties with questions about meeting the requirements, but cannot provide legal advice.

  5. The Commission has a range of template documents to assist self represented parties prepare the material for the Commission. These documents are available on the About hearings and conferences page on the Commission’s website.

Conduct of conferences

  1. A conference is conducted in private, which means that only the parties, their representatives, if any, and their witnesses are able to attend. However the decision of the Member, including the names of the parties, is published on the Commission’s website (unless the Commission decides otherwise.)

  2. Conferences are conducted in a manner which is less formal and more flexible than hearings. Where possible, Members will try to conduct the proceedings taking into account any differences in the circumstances of the applicant and respondent.

  3. A Member may take an active role in a conference to ensure all matters relevant to the issues in dispute are dealt with. For more information about the role of Members, please see the Fair hearings practice note.

  4. Evidence is given by the applicant, respondent and other witnesses by sworn oral evidence. Witnesses may be cross-examined on their evidence by the other party and/or be questioned by the Member.

  5. The conference proceedings are recorded and the recordings may be transcribed. If a Member orders the transcript it will be provided to the parties at no cost. Otherwise parties may request an audio file of the recording be provided to them, or may purchase a copy of the transcript.

  6. At the conclusion of a conference the Member will make a final determination. This may be given orally at the conference or in writing at a later date. A Member’s decision finally determines the application, subject to any appeal.

Hearings

Preparing for a hearing

  1. Where an application is scheduled for a hearing, the Commission will issue directions to the applicant and respondent setting out a timetable for the provision of an outline of submissions, witness statements and documentary material. An information fact sheet will be sent to the applicant and respondent which should be read together with the Commission’s unfair dismissal guides. Either party may apply to the Commission to vary the directions by completing and filing Form F48 or by otherwise putting the request in writing.

  2. The objective of the directions is to make the other party aware of issues and/or facts that will be raised and evidence that will be relied upon in the hearing.

  3. The applicant and respondent may be directed to file in the Commission and serve on each other:
    • an outline of submission which sets out in paragraph form the basis on which the applicant or the respondent submits that the Commission should find in their favour. The outline of submission should include the Commission case number, the names of the parties and should address the relevant sections of the Act that deal with unfair dismissal applications. The applicant’s outline of submissions should include the remedy they are seeking which may be reinstatement, compensation or some other outcome. If the applicant is seeking compensation, they should include a monetary amount.

    • a witness statement for each person the applicant or respondent  intends to call to give evidence at the hearing (including the applicant and respondent). The witness statement must:
      • start with the name, address and occupation of the person making the statement
      • set out in numbered paragraphs all matters relevant to the facts and allegations of the case that the person will give evidence on at the hearing, and
      • cover in sufficient detail all matters so that the witness statement will stand as the person’s main evidence.
  4. The Commission’s website has a range of checklists and guides to assist the applicant and respondent in putting their material together to meet the directions of the Commission. The Commission also has a range of template documents which may assist the parties prepare the material for the Commission. These documents are available on the A Commission’s website.

Conduct of hearings

  1. A hearing is conducted in public unless the Commission decides otherwise.

  2. Witness statements, filed in accordance with the directions, stand as the evidence of a witness (unless a Member decides otherwise), subject to objection and cross-examination.

  3. Hearings are recorded and the recordings may be transcribed. If a Member orders the transcript it will be provided to the parties at no cost. Otherwise parties may request an audio file of the recording to be provided to them, or may purchase a copy of the transcript.

  4. A decision by the Member conducting a hearing is given either orally at the conclusion of the hearing, or in writing at a later date. A Member’s decision finally determines the application, subject to any appeal.

Case management issues

  1. The Commission seeks to provide an efficient process for determining the merits of unfair dismissal claims. In all States and territories files are allocated to a member following conciliation of the application. The Member is then responsible for all management of the file.

  2. In circumstances where conciliation cannot occur a file will be allocated to a Member as soon as possible.

Applications filed out of time

  1. The exception to the standard procedure of conciliation followed by allocation to a Member occurs where an application has been made outside the 21-day time period within which the Act requires an application to be made. In such cases the file will be allocated to a Member for a hearing on whether an extension time within which to make the application should be granted.

  2. In these case the Commission will issue directions for the applicant to file submissions and evidence to support their application for an extension of time. If an extension of time is granted conciliation may occur or the Member may list the application for a conference or hearing. If an extension of time is not granted that will conclude the matter (subject to appeal). The guidance notes in relation to conferences and hearings are applicable to requests for an extension of time within which

Representation at the conference or hearing

[see s.596(4) of the Act].

  1. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent. However, a party may seek permission from the Member hearing the matter to be represented by a lawyer or paid agent (see s.596 of the Act and see generally Warrell v Fair Work Australia [2013] FCA 291)

  2. You do not need to seek permission to be legally represented if the lawyer or paid agent representing you is an employee or officer of:
    • your business;
    • an organisation such as a union or an employer association that is registered under the Fair Work (Registered Organisations) Act 2009;
    • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
    • a peak council.

    [see Rule 12 of the Rules].

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

    [see s.596(2) of the Act].

  4. You must seek permission to be represented by a lawyer or paid agent in a hearing or conference before the Commission (except in circumstances referred to in paragraph 60). The Member can only give permission for representation in a matter before the Commission if:
    • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
    • the party is unable to represent himself or herself effectively and it would be unfair not to allow them to be represented; or
    • it would be unfair not to allow the person to be represented taking into account fairness between the parties.

    [see Notes (a) and (b) to s.596(2) of the Act].

  5. Examples of circumstances where permission for representation may be granted include:
    • where a person is from a non-English speaking background;
    • where a person has difficulty reading or writing; or
    • where a small business is a party and they do not have specialist human resource staff, and the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations.
  6. Any party that wishes to have an application to appear by a lawyer/paid agent determined prior to the conference or hearing must file in the Commission and serve on the other party a document which identifies;
    1. the lawyer or paid agent the subject of the application; and
    2. the reasons why permission is sought, having regard to the matters set out in s.596(2) of the Act.
  7. This document must be filed 14 calendar days before the date of the conference or hearing.

  8. Any party served with a document pursuant to the above direction must file in the Commission and serve on the other party a document which indicates;
    1. whether the other party’s application for permission to be represented at the conference or hearing by a lawyer or paid agent is opposed; and
    2.  if the application is opposed, the grounds for that opposition.
  9. This document must be filed 7 calendar days before the date of the conference or hearing.

  10. The Member who hears the application for permission to appear may, if necessary, list that application for preliminary conference or hearing. Where possible, such an application will be determined on the papers, and the parties advised of the outcome, prior to the conference or hearing.

  11. Where an application for permission to appear is made at the commencement of the conference or hearing, parties seeking to be represented in a conference or hearing should not assume that permission will be granted. Parties need to be prepared to proceed with a conference or hearing in the event that their representative is not permitted to appear. In the event that permission to be represented by a lawyer or paid agent is not granted the party may seek an adjournment, but whether an adjournment is granted will be a matter for the Member concerned and should not be assumed.

  12. In circumstances where permission to appear is granted in a jurisdictional hearing, it should not be assumed that permission will also be granted to appear in the substantive matter.

  13. Further information can be found in the practice note on Lawyers & paid agents.

Further information

Please see the Fair hearings practice note, Lawyers & paid agents practice note, Orders to attend and orders to produce practice note and the Unfair Dismissals Benchbook for further guidance about unfair dismissal matters at the Commission, including information about:

  • access to hearings including translators, assistance for hearing impaired and accommodating parties with disabilities, ill health or carer’s responsibilities and those in remote locations, and
  • costs.

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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-unfair-dismissal-proceedings