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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 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
          • Reasons to 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
  • 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 at work (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 in 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
    • Small business hub
      • Assistance for small business
      • What is a ‘small business’?
      • Types of workplace disputes
      • Respond to a claim against a business
      • Dismissal rules 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)
    • Flexible work and unpaid parental leave requests
      • Disputes about flexible work or unpaid parental leave extensions
      • Apply to resolve a dispute about extension of unpaid parental leave (Form F10B)
      • Apply to resolve a dispute about flexible working arrangements (Form F10C)
    • 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
        • Compulsory conciliation conferences during ballot period
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
        • Apply to become an eligible protected action ballot agent (Form F34C)
      • Eligible protected action ballot agents
      • 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)
    • Collaborative Approaches 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
      • Changes to making agreements
        • Understand the tests that apply to agreements
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Find an enterprise agreement
        • Agreements in progress
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Genuine agreement from 6 June 2023
          • Statement of Principles on Genuine Agreement
          • 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 an intractable bargaining 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
          • Voting request orders
          • 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)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Agreement amendments
        • 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)
            • Select your 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)
      • Reconsideration of approved agreements
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
          • Select your 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)
      • 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 pre-2010 agreements
        • Types of pre-2010 agreements
        • Our list of pre-2010 agreements
        • What to do if you have a pre-2010 agreement
        • Extending the default period for a pre-2010 agreement
        • Apply to extend the default period for 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
      • Gender pay equity research
        • Previous pay equity research
      • 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
          • Determinations for the Annual Wage Review 2022–23
          • Draft determinations for the Annual Wage Review 2022–23
          • National Minimum Wage Order 2023
          • 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
          • 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
      • Apple Retail Enterprise Agreement 2014 – application to terminate
      • Early education and care industry supported bargaining authorisation application
      • IEUA WA Branch – single interest employer authorisation
      • Modern Awards Review 2023–24
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • United Firefighters' Union of Australia – intractable bargaining declaration
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • 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 (D2021/2)
        • Ballot for withdrawal of ME Division from CFMMEU (D2022/10)
        • Ballot for withdrawal of Manufacturing Division from CFMMEU
        • Cambridge Clothing Company Enterprise Agreement (2014) – application to terminate
        • 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
        • Family and domestic violence leave review
          • Decisions & statements
        • 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
        • IPCA (VIC, ACT & NT) Agreement 2011 – Application to terminate
        • Independent Education Union of Australia WA Branch – single interest employer authorisation
        • Modern awards review 2012
          • Awards reviewed 2012
        • Svitzer Australia Pty Limited industrial action
        • Undergraduate qualifications review
        • Virgin Australia Regional Airlines – intractable bargaining declaration
    • Case law benchbooks
      • 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
      • Stop bullying benchbook
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
        • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
          • Jobkeeper enabling stand down directions – employer previously entitled to jobkeeper payment for employee
          • Directions about duties & location of work – employer previously entitled to jobkeeper payment for employee
          • Termination of a jobkeeper enabling direction made by a legacy employer
        • Agreements about days or times of work
          • Agreements about days or times of work – employers currently entitled to jobkeeper payments
          • Agreements about days or times of work – employers previously entitled to jobkeeper payment for employee
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        • Employer payment obligations
          • Wage condition
          • 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
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        • Commission process
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        • Attachments
        • Attachment 5 – Jobkeeper provisions that continue to apply on or after 29 March 2021
      • References in the benchbooks
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    • Transcripts and recordings
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      • Ceremonial sittings transcripts
  • Registered organisations
    • Entry permits
      • Find an entry permit
      • When an official can enter a workplace
      • Training that permit holders must complete
      • When to return an entry permit
      • About Fair Work entry permits
        • Who can hold a Fair Work Entry permit
        • How to apply for a Fair Work entry permit
          • Entry permit – photo and signature declaration (Form F42C)
        • Apply for a Fair Work entry permit (Form F42)
        • How we process Fair Work entry permit applications
        • Rules for a Fair Work entry notice
        • Rights and obligations of Fair Work entry permit holders
        • Apply for an affected member certificate (Form F45)
        • Apply to be exempt from providing an entry notice (Form F44)
      • About Work Health and Safety entry permits
        • Apply for a WHS entry permit (Form F42A)
        • Statutory declaration to support an application for a WHS entry permit (Form F42B)
        • Rules for a WHS entry notice
        • Rights and obligations of WHS permit holders
      • Disputes about entry to workplaces
        • Apply to resolve a right of entry dispute (Form F12)
    • What is a registered organisation
      • Object to joining an employee or employer association (Form F69)
      • Services for employer associations, unions and enterprise unions
      • Renew an objection to joining an employee or employer association (Form F70)
    • Find a registered organisation
      • Find a recognised state-registered association
    • Running a registered organisation
      • Rules for unions and employer associations
      • Change the rules of a union or employer association
        • Apply to change the name of a registered organisation (Form F67)
        • Apply to change the eligibility rules of a employer association or union (Form F68)
        • Application for leave to change name and to alter rules (Form F59)
        • Apply to change eligibility rules of a federal counterpart (Form F68A)
        • Apply to change 'other' rules of a registered organisation
      • Lodge an annual return in a registered organisation
        • Complete the annual return template
      • Elections
        • The election process
        • The AEC, voting methods and exemptions
        • Casual vacancies and insufficient nominations
        • Disqualification from holding office
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      • Notify us of changes in your organisation
      • Financial reporting
        • Financial reporting obligations
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        • The financial reporting process
        • The financial report requirements
        • Auditors and the audit report
        • How we assess financial reports
      • Registered auditors
      • Financial training
        • Mandatory financial training for officers
        • Find approved financial training
        • Approved financial training
      • Disclosure obligations
      • Statutory officer duties
      • Corrupting benefits and disclosure rules
        • Giving, receiving or soliciting cash and in kind payments
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        • Disclosure rules during enterprise bargaining
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    • Manage registration
      • Become a registered union or employer association
        • Apply to register a union (Form F56)
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        • Apply for recognition as an RSRA
        • Object to the registration of an association (Form F58)
      • Merge registered organisations
        • Ballot paper for proposed amalgamation (Form F64)
        • Ballot paper chosen by organisation for proposed amalgamation (Form F63)
        • Ballot paper chosen by organisation with alternative to proposed amalgamation (Form F65)
        • Ballot paper with alternative to proposed amalgamation (Form F66)
      • Cancelling an organisation's registration
        • Apply to cancel an organisation's registration (Form F62)
        • Application by an organisation to cancel an organisation's registration (Form F60)
        • Object to the cancellation of an organisation's registration (Form F61)
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        • Branch secretary should set an exemplary standard of behaviour
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        • Officers who misuse organisation funds may face significant penalties
        • Office holders must follow financial controls about expenditure and not act for their own benefit
        • Organisations must prepare financial reports regardless of their size
        • Branch dishonestly inflated its membership by adding hundreds of non-members to its register
        • ‘Dysfunctional’ structure leads to 86 breaches of the RO Act
        • Both organisation and Branch Secretary responsible for branch’s financial reports
        • Organisations and their branches must keep accurate registers of members
        • Organisations must hold elections and maintain up-to-date lists of office holders
        • Financial reporting is essential for transparency to members of registered organisations
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      • Investigate a protected disclosure
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Hearings & decisions

  • Hearings schedule
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  • How the Commission works
    • What to do when we set your tribunal date
    • About conferences and hearings
    • Prepare for a conference or hearing
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    • What happens during a hearing
      • Inside the hearing room
    • On the day of your conference or hearing
    • Recording a hearing or conference
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  • 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
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        • 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
        • Determinations for the Annual Wage Review 2022–23
        • Draft determinations for the Annual Wage Review 2022–23
        • National Minimum Wage Order 2023
        • 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
        • 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
    • Apple Retail Enterprise Agreement 2014 – application to terminate
    • Early education and care industry supported bargaining authorisation application
    • IEUA WA Branch – single interest employer authorisation
    • Modern Awards Review 2023–24
    • Proposed On Demand Delivery Services Award (Menulog)
    • Review of certain C14 rates in modern awards
    • Superannuation fund reviews
    • United Firefighters' Union of Australia – intractable bargaining declaration
    • Work value case – Aged Care Industry
      • Correspondence
      • Decisions & statements
      • Notices of listing & directions
      • Research and information
      • Submissions
      • Transcript
    • Previous major cases
      • 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 (D2021/2)
      • Ballot for withdrawal of ME Division from CFMMEU (D2022/10)
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Cambridge Clothing Company Enterprise Agreement (2014) – application to terminate
      • 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
      • Family and domestic violence leave review
        • Decisions & statements
      • 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
      • IPCA (VIC, ACT & NT) Agreement 2011 – Application to terminate
      • Independent Education Union of Australia WA Branch – single interest employer authorisation
      • Modern awards review 2012
        • Awards reviewed 2012
      • Svitzer Australia Pty Limited industrial action
      • Undergraduate qualifications review
      • Virgin Australia Regional Airlines – intractable bargaining declaration
  • Case law benchbooks
    • 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
          • Requirements relating to a period of suspension
        • Powers of the Minister
      • Enforcement
      • Appeals
    • Sexual harassment benchbook
    • Stop bullying benchbook
    • 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
  • Transcripts and recordings
    • Recent transcripts
    • Ceremonial sittings transcripts

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Enterprise agreements benchbook

Minor procedural or technical errors

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  • Minor procedural or technical errors relating to genuine agreement
  • The proper construction of section 188(2)
  • Section 188(2)(a): minor procedural or technical errors
  • Case examples
Content

Minor procedural or technical errors relating to genuine agreement

See Fair Work Act 2009 s.188(2)

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) has revised s.188 of the Fair Work Act to provide a mechanism for the Fair Work Commission to conclude that an enterprise agreement has been genuinely agreed, within the meaning of s.186(2)(a), despite 'minor procedural or technical errors'.

Section 188(2) reads as follows:

  1. An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the [Commission] is satisfied that:
    1. the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
    2. the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.[1]

The Amending Act received the Royal Assent on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.

Examples of what may be considered minor procedural or technical errors are provided in the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017:[2]

Examples of minor procedural or technical errors could include (without limitation):

  • employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3));
  • employees being requested to approve a proposed enterprise agreement on the 21st day after the last Notice was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2));
  • the inclusion of the employer's company logo or letterhead on a Notice;
  • the inclusion of additional materials that are stapled with a Notice; or
  • minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than 'contact your employer').

The proper construction of section 188(2)

The Full Bench of the Commission considered how the introduction of s.188(2) could be applied in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.[3]

The following propositions[4] emerged from the Full Bench’s consideration of the proper construction of s.188(2):

  1. Subsections 188(1) and (2) are to be approached sequentially. The first question is whether the Commission is satisfied as to the matters at s.188(1)(a) to (c). If it is so satisfied then the agreement has been genuinely agreed to and there is no need to consider s.188(2).
  2. The reference to the 'employees covered by the agreement' in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.
  3. Subsections 188(1) and (2) both provide that an enterprise agreement has been genuinely agreed if the Commission is satisfied as to certain matters (ie those in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment.
  4. Section 188(2) is confined to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of 'errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights'.
  5. Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise from a consideration of s.188(1)(c).
  6. Section 188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The 'minor procedural or technical errors' referred to in s.188(2)(a) must be errors 'made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights' [emphasis added].
  7. The following table sets out the procedural or technical requirements to which s.188(2) applies.

Table 1: Scope of s.188(2)

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[5]

Section Procedural or technical requirement
188(1)(a) Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period or that the relevant employees are given access to these materials throughout the access period
Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period
Comply with subsection 180(5)(a) – take all reasonable steps to ensure the terms of the agreement and their effects are explained to the relevant employees
Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees
Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last notice of employee representational rights (NERR) is given
188(1)(b) The agreement must be made in accordance with subsection 182(1) or (2)
173(1) Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement
173(3) Issue the NERR as soon as practicable, no later than 14 days after the notification time
174(1A)(a) The NERR must contain the content prescribed by the regulations
174(1A)(b) The NERR must not contain any other content
174(1A)(c) The NERR must be in the form prescribed by the regulations

 

Section 188(2)(a): minor procedural or technical errors

When considering the definition of minor procedural or technical errors the Full Bench found the following:[6]

  1. The adjective minor qualifies both procedural errors and technical errors, such that the expression reads 'minor procedural errors or minor technical errors'. The word minor is a limitation upon the type of errors contemplated by s.188(2)(a).
  2. A failure to comply with a procedural requirement will constitute a procedural error within the meaning of s.188(2)(a).
A procedural requirement is one which requires an employer to follow a particular process or course of action.

For example:

An example of a procedural requirement may be providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least 7 clear days between notifying employees of the voting process and the commencement of that process (s.180(3)).

  1. A failure to comply with a technical requirement will constitute a technical error within the meaning of s.188(2)(b).
A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.
  1. A single error may have both procedural and technical components.
  2. The impact of the errors is to be assessed by reference to the objects of the requirements in ss.188(2)(a), 188(1)(b), 173 or 174.
  3. What constitutes a minor error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.

Table 2 (see below) examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

  1. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a minor error.

For example:

Informing the employees of the time and place at which the vote will occur, and the voting method that will be used as per the requirements of ss.180(3)(a) and (b) just after the start of the 7 day access period (for instance 6 days before the start of the voting process) is likely to be a minor error in most cases.

However this will depend on the circumstances.

If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a minor error.

Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a 'minor error where there is a history of bargaining at the enterprise; the agreement is, in effect, a roll over agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

  1. Whether an incidence of non-compliance is characterised as a minor error also depends on the nature of the requirement which has not been complied with.

For example:

The need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the voting method (s.180(3)(b)) – the first requirement may impact on the employees' capacity to participate in the voting process, the second may not.

  1. Some species of error are unlikely to be classified as minor.

For example:

The deletion of the prescribed text of the NERR which deals with an employee's right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances.

  1. The test in s.188(2)(b) is whether the employees covered by the agreement were 'not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174' [emphasis added].

The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of genuine agreement.

  1. Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement 'were not likely to be disadvantaged by the errors'.
  2. The test suggested by s.188(2)(b) is whether 'the employees covered by the agreement were not likely to have been disadvantaged by the errors.
  3. The word likely in s.188(2)(b) means probable in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word disadvantaged suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Fair Work Act.
  4. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.

Table 2: Procedural or technical requirements & potential disadvantages

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[7]

Section 188(1)(a)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period OR that the relevant employees are given access to these materials throughout the access period To ensure employees have a reasonable chance to make an informed decision when voting In the circumstances employees may not have had effective access to materials or insufficient time to consider them to make an informed decision when voting
Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period To ensure employees are able to attend and participate in the voting process (should they choose to do so) In the circumstances employees might be unaware of the voting process occurring thus preventing them from effectively participating in the voting process
Comply with subsection 180(5)(a) – take all reasonable steps to the terms of the agreement and their effects are explained to the relevant employees Ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision In the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote
Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees Ensure that particular classes of employees are able to understand the agreement not withstanding any particular circumstances or needs In the circumstances the employees may have received the explanation in a language they do not speak thus they may not be in a position to make an informed decision when voting
Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last NERR is given To provide the employees with a minimum period of time for the bargaining process to occur before voting on an agreement In the circumstances the period is cut short preventing the employees from effectively appointing bargaining representatives and participating in genuine good faith bargaining


Section 188(1)(b)

Procedural or technical requirement: The agreement must be made in accordance with subsection 182(1) or (2)  

Section 173(1)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement To ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights In the circumstances the NERR may be so altered that employees fail to understand and exercise their representational rights and effectively participate in the bargaining process

 

Section 173(3)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
Issue the NERR as soon as practicable, no later than 14 days after the notification time To ensure that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner In the circumstances the employees may have received the NERR later than the 14 days thus period preventing them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate

 

Section 174(1A)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
(a)The NERR must contain the content prescribed by the regulations To ensure that the employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining

 

Section 174(1A)(b)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
The NERR must not contain any other content To ensure that the employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining

 

Section 174(1A)(c)

Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?
The NERR must be in the form prescribed by the regulations To ensure that the employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining

 

Case examples

Employees do NOT genuinely agree

Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union

Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512 (Watson VP, Watson SDP, Gooley C, 8 November 2012).

At first instance, the Commission declined to approve the enterprise agreement on the basis that the notice of employee representational rights (Notice) provided to employees did not meet the form and content requirements in the Fair Work Regulations because it did not give notice of the default bargaining representatives.

On appeal, the Full Bench was required to consider whether it could be satisfied that the agreement had been genuinely agreed where the Notice given to employees was not in the form required.

Permission to appeal was granted and the majority concluded, based on the statutory context, in order for an agreement to be genuinely agreed the last Notice issued in advance of a vote must meet the content requirements of section 174. That is, if the Notice did not meet the content requirements (for example, because it did not give notice of default bargaining representatives), the Notice was not valid. Accordingly, the Commission could not be satisfied that the agreement was genuinely agreed by employees and therefore could not approve the enterprise agreement.

The majority dismissed the appeal.

Re ENM Group Pty Ltd

Re ENM Group Pty Ltd [2013] FWC 3035 (O’Callaghan SDP, 17 May 2013).

ENM Group Pty Ltd (trading as Eagle Boys Mawson Lakes) lodged an application seeking approval of the ENM Group Enterprise Agreement. The agreement proposed to cover 6 employees, 5 of whom were under 21 years of age.

The Commission found that the agreement only narrowly satisfied the better off overall test. Transitional arrangements were shortly due to be varied which would have had the effect of increasing award entitlements.

On the information provided (and despite numerous requests to the employer to provide information to allay the Commission's concerns) the Commission was unable to establish what the employees understood or were told about the effect of the agreement. This was particularly the case in relation to the overall impact of the agreement on employees relative to their award entitlements.

The Commission was not satisfied that the agreement was genuinely agreed to by the employees and declined to approve the agreement.

CEPU v Mirait Technologies Australia Pty Ltd

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mirait Technologies Australia Pty Ltd [2015] FWCFB 5078 (Hamberger SDP, Gostencnik DP, Riordan C, 27 July 2015).

Re Mirait Technologies Australia Pty Ltd [2015] FWC 8338 (Gostencnik DP, 1 December 2015).

At first instance the Commission approved the application for approval of the Mirait Technologies Australia (MTA) Enterprise Agreement 2015 – 2019. The decision was appealed on grounds that at the time the decision was made, there were reasonable grounds for believing that the agreement had not been genuinely agreed to for the purposes of s.188(c) and that the Commission could not have been satisfied as required by s.186(2)(a). Other grounds of appeal included the failure to convene a hearing and the adequacy of given reasons for the decision.

The Full Bench were able to dispose of the appeal on the ground of non-compliance with pre-approval steps. Two statutory declarations made by the employer in support of the application contained information that was different and inconsistent. The Full Bench was satisfied that the appeal raised important questions about the proper consideration and application of the pre-approval steps set out in the Fair Work Act.

Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the application for approval of the agreement was remitted for determination.

Upon rehearing the Commission was not satisfied that the statutory requirements which would enable the agreement to be approved had been met, in that the employees covered by the agreement genuinely agreed to the agreement. The Commission found that the employer adopted a ‘very convoluted and indirect method of communicating fairly simple information to relevant employees about the time and place of voting and the method of voting by passing on information to supervisors who, in turn, were encouraged or asked to pass on that information to relevant employees’. The Commission provided the employer with seven days to provide a satisfactory undertaking to address the issue. The employer advised that they would not provide an undertaking and the application for approval was dismissed.

References

Content

[1] Fair Work Act s.188(2).

[2] Revised Explanatory Memorandum to Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 at para. 47.

[3] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).

[4] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.

[5] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 52.

[6] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.

[7] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 74.

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 20 Dec 2021
Location on last update: https://www.fwc.gov.au/minor-procedural-or-technical-errors