Skip to main content

Information about the Secure Jobs Better Pay changes

Close
Home
Top Menu
  • About us
  • Contact us
  • Support and legal help
Show/hide search box Menu

Main navigation

Home Close
  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
        • 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
  • 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)
    • Notices in the Gazette
    • Find a registered organisation
      • Find a recognised state-registered association
    • What is a registered organisation
      • Object to joining an employee or employer association (Form F69)
      • Services for employer associations, unions and enterprise unions
      • 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
      • Renew an objection to joining an employee or employer association (Form F70)
    • Become a registered union or employer association
      • Apply to register a union (Form F56)
      • Apply to register an employer association (Form F55)
      • Apply to register an enterprise union (Form F57)
      • 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)
  • Apply or lodge
    • Forms
      • Declarations and statutory declarations
    • Legal help and representation
      • Where to find legal help
        • Tips to choose a lawyer or paid agent
        • Glossary of legal terms
        • How the Commission can and can’t help
      • Legal advice from the Workplace Advice Service
        • Request form for WAS
        • Workplace Advice Service terms & conditions
      • If you decide to represent yourself
      • Representatives and the rules they must follow
        • Notify us that you have a representative, or that they plan to act for you (Form F53)
        • Notice that a representative has stopped acting for a person (Form F54)
        • How we decide if a lawyer or paid agent can take part
      • Support for your health and wellbeing
    • Fees and costs
      • Ask to waive an application fee (Form F80)
    • Deadlines
    • Who Australia's national system covers
    • Approved file types

Top Menu

  • About us
  • Contact us
  • Support and legal help

Breadcrumb

  1. Home
  2. Hearings & d...
  3. Case law ben...
  4. Unfair dismi...
  5. Remedies
  6. Reinstatement
Print this page

Hearings & decisions

  • Hearings schedule
    • Adelaide hearings
    • Brisbane hearings
    • Canberra hearings
    • Darwin hearings
    • Hobart hearings
    • Melbourne hearings
    • Perth hearings
    • Sydney hearings
    • Regional hearings
  • How the Commission works
    • What to do when we set your tribunal date
    • About conferences and hearings
    • Prepare for a conference or hearing
    • Possible outcomes of a hearing or conference
    • What happens during a hearing
      • Inside the hearing room
    • On the day of your conference or hearing
    • Recording a hearing or conference
    • Ask to delay a hearing or conference
  • Appeal a decision or order
    • The appeals process
      • Reasons you may appeal a decision or order
      • Who can appeal a decision?
      • How to appeal a decision
      • Order to ‘stay’ all or part of a decision
      • Create an appeal book
    • Prepare for an appeal hearing
      • Prepare an outline of submissions for an appeal
      • What happens in an appeal hearing
      • Who sits on an Appeal Bench?
    • Timetable of appeal hearings
    • Results of appeals
    • Apply for permission to appeal (Form F7)
  • Decisions and orders
    • National wage and safety net review decisions
    • Significant decisions and summaries
  • Major cases
    • 4 yearly review
      • All decisions and statements
      • Alleged NES inconsistencies
      • Awards under review
      • Common issues
        • Abandonment of employment
        • Annual leave
        • Annualised salaries
        • Apprentice conditions
        • Award flexibility
        • Blood donor leave
        • Casual employment
        • Family and domestic violence leave
        • Family friendly work arrangements
        • Micro business schedule
        • National Training Wage
        • Overtime for casuals
        • Part-time employment
        • Payment of wages
        • Penalty rates case
          • Decisions & statements
          • General Retail Industry Award
          • Hair and Beauty Industry Award
        • Public holidays
        • Transitional provisions
      • Final stage proceedings
      • Plain language re-drafting
        • Fast Food Industry Award
        • Hair and Beauty Industry Award
      • Timetable
    • Annual wage reviews
      • Annual Wage Review 2022–23
        • Research for the Annual Wage Review 2022–23
        • Timetable for the Annual Wage Review 2022–23
      • Annual Wage Review 2021–22
        • Additional material for the Annual Wage Review 2021–22
        • Correspondence for the Annual Wage Review 2021–22
        • Decisions & statements for the Annual Wage Review 2021–22
        • Determinations for the Annual Wage Review 2021–22
        • Draft determinations for the Annual Wage Review 2021–22
        • National Minimum Wage Order 2022
        • Notices of listing for the Annual Wage Review 2021–22
        • Research for the Annual Wage Review 2021–22
        • Statistical reporting for the Annual Wage Review 2021–22
        • Submissions for the Annual Wage Review 2021–22
        • Timetable for the Annual Wage Review 2021–22
        • Transcripts for the Annual Wage Review 2021–22
      • Annual Wage Review 2020–21
        • Additional material for the Annual Wage Review 2020–21
        • Consultations for the Annual Wage Review 2020–21
        • Correspondence for the Annual Wage Review 2020–21
        • Decisions & statements for the Annual Wage Review 2020–21
        • Determinations for the Annual Wage Review 2020–21
        • Draft determinations for the Annual Wage Review 2020–21
        • National Minimum Wage Order 2021
        • Notices of listing for the Annual Wage Review 2020–21
        • Research for the Annual Wage Review 2020–21
        • Statistical reporting for the Annual Wage Review 2020–21
        • Submissions for the Annual Wage Review 2020–21
          • Initial submissions for the Annual Wage Review 2020–21
          • Post-budget submissions for the Annual Wage Review 2020–21
          • Submissions in reply for the Annual Wage Review 2020–21
          • Supplementary submissions for the Annual Wage Review 2020–21
        • Timetable for the Annual Wage Review 2020–21
        • Transcripts for the Annual Wage Review 2020–21
      • Annual Wage Review 2019–20
        • Additional material for the Annual Wage Review 2019-20
        • Consultations for the Annual Wage Review 2019-20
        • Correspondence for the Annual Wage Review 2019-20
        • Decisions & statements for the Annual Wage Review 2019-20
        • Determinations for the Annual Wage Review 2019-20
        • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
        • National Minimum Wage Order 2020
        • Notices of listing for the Annual Wage Review 2019-20
        • Research for the Annual Wage Review 2019-20
        • Research proposals for the Annual Wage Review 2019-20
        • Statistical reporting for the Annual Wage Review 2019-20
        • Submissions for the Annual Wage Review 2019-20
          • Initial submissions for the Annual Wage Review 2019-20
          • Submissions in reply for the Annual Wage Review 2019-20
          • Supplementary submissions for the Annual Wage Review 2019-20
        • Timetable for the Annual Wage Review 2019-20
        • Transcripts for the Annual Wage Review 2019-20
      • Annual Wage Review 2018–19
        • Additional material for the Annual Wage Review 2018-19
        • Consultations for the Annual Wage Review 2018-19
        • Correspondence for the Annual Wage Review 2018-19
        • Decisions & statements for the Annual Wage Review 2018-19
        • Determinations for the Annual Wage Review 2018-19
        • National Minimum Wage Order 2019
        • Notices of listing for the Annual Wage Review 2018-19
        • Research for the Annual Wage Review 2018-19
        • Statistical reporting for the Annual Wage Review 2018-19
        • Submissions for the Annual Wage Review 2018-19
          • Initial submissions for the Annual Wage Review 2018-19
          • Submissions in reply for the Annual Wage Review 2018-19
        • Timetable for the Annual Wage Review 2018-19
        • Transcripts for the Annual Wage Review 2018-19
      • Annual wage reviews archive
        • Annual Wage Review 2012–13
    • Application to terminate the Apple Retail Enterprise Agreement 2014
    • Award flexibility – Hospitality and retail sectors
      • Application to vary the Hospitality Award
      • Application to vary the Restaurant Award
      • Application to vary the Retail Award
      • Background material
      • Correspondence
      • Decisions and statements
      • Notices of listing and directions
      • Research and data
      • Submissions
      • Transcript
    • Ballot for withdrawal of ME Division from CFMMEU
    • Ballot for withdrawal of Manufacturing Division from CFMMEU
    • Family and domestic violence leave review
      • Decisions & statements
    • Proposed On Demand Delivery Services Award (Menulog)
    • Review of certain C14 rates in modern awards
    • Superannuation fund reviews
    • Svitzer Australia Pty Limited industrial action
    • Work value case – Aged Care Industry
      • Correspondence
      • Decisions & statements
      • Notices of listing & directions
      • Research and information
      • Submissions
      • Transcript
    • Previous major cases
      • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
      • Ballot for withdrawal of ME Division from CFMMEU
      • Casual terms award review 2021
        • Background material
        • Correspondence
        • Decisions & statements
        • Determinations
        • Notices of listing & directions
        • Submissions
        • Transcripts
        • All documents
      • Clerks – Private Sector Award – Work from home case
      • Equal Remuneration Case 2010-12
        • Applications
        • Correspondence
        • Decisions & statements
        • Draft orders
        • Exhibits
        • Notices of listing
        • Site Inspections
        • Submissions
        • Timetable
        • Transcripts
      • Equal Remuneration and Work Value Case
        • Applications
        • Correspondence
        • Decisions and statements
        • Legislation
        • Notices of listing and directions
        • Orders
        • Papers
        • Submissions
        • Timetable
        • Transcript
      • Health sector awards – pandemic leave case
        • Applications
        • Correspondence
        • Decisions and statements
        • Determinations
        • Information notes and articles
        • Notices of listing and directions
        • Orders
        • Submissions and witness statements
        • Transcript
      • Modern awards review 2012
        • Awards reviewed 2012
      • Undergraduate qualifications review
  • Case law benchbooks
    • Anti-bullying benchbook
      • Overview of benchbook
      • What is workplace bullying?
      • Who is covered?
        • Definition of ‘worker’
        • Definition of ‘constitutionally-covered business’
          • What is a person conducting a business or undertaking?
          • What is a Territory or a Commonwealth place?
          • What is a constitutional corporation?
          • What is the Commonwealth?
      • When is a worker bullied at work?
        • What does ‘at work’ mean?
        • Risk of continued bullying
        • What does ‘Reasonable management action’ mean?
      • Making an application
      • Responding to an application
      • What if the worker has been dismissed etc
      • Commission processes
        • Procedural issues
        • Representation by lawyers and paid agents
      • Evidence
      • What are the outcomes?
        • When can the Commission dismiss an application?
        • Contravening an order of the Commission
      • Associated applications
        • Costs
        • Appeals
        • Role of the Court
    • Enterprise agreements benchbook
      • Overview of benchbook
      • What is an enterprise agreement?
        • Single-enterprise agreement
        • Multi-enterprise agreement
        • Differences between single and multi-enterprise agreements
        • Greenfields agreement
      • Content of an enterprise agreement
        • Permitted matters
        • Coverage
        • Scope – who will be covered?
        • Terms & conditions of employment
        • Base rate of pay
        • Nominal expiry date
        • Mandatory terms
        • Flexibility term
        • Consultation term
        • Dispute settlement term
        • Optional terms
        • Terms that cannot be included
          • Terms that exclude the NES
          • Unlawful terms
          • Designated outworker terms
      • Agreement making process
        • Representation
        • Employees must be notified of their right to be represented
        • Bargaining representatives
      • Bargaining
        • Good faith bargaining
        • How long does bargaining take?
      • Voting
        • Voting process
        • Who can vote?
        • Timeframe for vote
        • Voting methods
        • When is an agreement made?
      • What happens if the parties cannot agree?
      • Making an application
        • Common defects & issues
          • National Employment Standards – common defects & issues
          • Better off overall test – common defects & issues
          • Mandatory terms – common defects & issues
          • Other terms of the agreement
          • Pre-approval requirements – common issues
          • Forms & lodgment – common defects & issues
        • Who must apply
        • Timeframe to apply – within 14 days
        • Material to accompany application
        • Signing an agreement
        • Employer must notify employees
      • Commission approval process
        • Genuine agreement
          • Minor procedural or technical errors
        • Where a scope order is in operation
        • Particular kinds of employees
        • Better off overall test (BOOT)
          • When an agreement passes
          • Classes of employees
          • Which award applies
          • Advice about coverage
          • Loaded rates of pay
        • Public interest test
        • Undertakings
        • Powers of the Commission
      • Associated applications
        • Majority support determinations
        • Authorisations to commence bargaining
          • Single interest employer authorisations
          • Ministerial declaration
          • Low-paid authorisations
        • Scope orders
        • Bargaining orders
        • Serious breach declarations
        • Disputes
        • Workplace determinations
          • Low-paid workplace determinations
          • Industrial action related workplace determinations
          • Bargaining related workplace determinations
        • Role of the Court
        • Appeals
        • Varying enterprise agreements
          • Varying by agreement
          • Ambiguity or uncertainty
          • Casual employee definition and casual conversion provisions
          • Discrimination
        • Terminating enterprise agreements
          • Terminating by agreement
          • After its nominal expiry date
        • Terminating individual agreements
    • General protections benchbook
      • Overview of benchbook
        • When is a person covered by the general protections?
      • What are the general protections?
      • How do the general protections work?
        • Rebuttable presumption as to reason or intent
      • Coverage for general protections
        • What is a constitutionally-covered entity?
        • What is a Territory or a Commonwealth place?
        • What is a trade and commerce employer?
        • What is a Territory employer?
        • What is a national system employer?
      • What if I am not covered by the general protections?
      • What is adverse action?
        • What is dismissal?
        • What is ‘injuring’ the employee in his or her employment?
        • What is altering the position of the employee to the employee’s prejudice?
        • What is discriminating between the employee and other employees of the employer?
        • Threatened action and organisation of action
        • Exclusions
      • Workplace rights – Division 3
        • Meaning of workplace right
        • Coercion
        • Undue influence or pressure
        • Misrepresentations
        • Requiring the use of COVIDSafe
      • Industrial activities – Division 4
        • What are industrial activities?
        • Coercion
        • Misrepresentations
        • Inducements – membership action
      • Other protections – Division 5
        • Discrimination
          • Race
          • Colour
          • Gender identity & sexual orientation
          • Age
          • Physical or mental disability
          • Marital status
          • Family or carer’s responsibilities
          • Pregnancy
          • Religion
          • Political opinion
          • National extraction
          • Social origin
        • Exceptions
        • Temporary absence – illness or injury
        • Bargaining services fees
        • Coverage by particular instruments
        • Coercion – allocation of duties to particular person
      • Sham arrangements – Division 6
        • Misrepresenting employment
        • Dismissing to engage as independent contractor
        • Misrepresentation to engage as independent contractor
      • Making an application
        • Dismissal applications
          • Timeframe for lodgment
          • Late lodgment
        • Non-dismissal applications
        • Other types of applications
          • Multiple actions relating to dismissal
          • Unfair dismissal
          • Unlawful termination
          • Court application (interim injunction)
          • Discrimination
      • Power to dismiss applications
      • Evidence
      • Commission process
        • Conferences & hearings
        • Dealing with different types of general protections disputes
        • Rescheduling or adjourning matters
        • Representation by lawyers and paid agents
        • Bias
      • Outcomes
      • Costs
        • When are costs ordered by the Commission?
        • Costs against representatives
      • Appeals
      • Role of the Court
        • Enforcement of Commission orders
        • Types of order made by the Court
    • Industrial action benchbook
      • What is industrial action?
        • Unprotected industrial action
          • Orders to stop or prevent unprotected industrial action
        • Protected industrial action
          • Immunity
          • Common requirements
          • Employee claim action
          • Employer response action
          • Employee response action
          • Pattern bargaining
      • Taking protected industrial action
        • Protected action ballots
          • Who may apply?
          • Making an application
          • Commission process
          • Varying a protected action ballot order
          • Revoking a protected action ballot order
        • Voting
          • Ballot agents
          • Who may vote – roll of voters
          • Ballot papers
          • Voting procedure
          • Scrutiny of the ballot
          • Results of the ballot
          • When is industrial action authorised?
        • Notice requirements
        • Commencing protected industrial action
      • Payments relating to industrial action
        • Partial work bans
        • Unprotected industrial action – payments
        • Standing down employees
      • Suspension or termination of protected industrial action
        • Powers of the Commission
          • When the Commission may suspend or terminate
          • When the Commission must suspend or terminate
          • Requirements relating to a period of suspension
        • Powers of the Minister
      • Enforcement
      • Appeals
    • Sexual harassment benchbook
      • Overview of benchbook
      • What is sexual harassment?
      • Who is covered by the laws to stop sexual harassment at work?
        • Definition of ‘Worker’
        • Definition of ‘constitutionally-covered business’
          • What is a person conducting a business or undertaking (PCBU)?
      • When is a worker sexually harassed at work?
        • What does ‘at work’ mean?
        • Reasonable belief of bullying or sexual harassment at work
      • Risk of continued sexual harassment
        • Absence of future risk of sexual harassment
        • Change in circumstances
        • Other options for workers who are no longer working for the employer/principal
      • Making an application
        • Responding to an application
      • Commission process – Hearings and conferences
        • Powers of the Commission
        • Procedural issues
        • Representation by lawyers and paid agents
          • Notification of ‘acting for’ a person
          • What is representation?
          • When will permission be granted?
          • Exception – Conference by staff conciliator
          • Representation – Not in a conference or hearing
        • Bias
        • Rescheduling or adjourning matters
      • Evidence
        • Privilege against self-incrimination
      • What are the outcomes?
        • Conciliated outcomes
        • Orders to stop bullying or sexual harassment (or both) at work
        • Considerations
        • When can the Commission dismiss an application?
        • Contravening an order of the Commission
      • Associated applications
        • Costs
          • What are costs?
          • Applying for costs
          • When are costs ordered?
        • Appeals
        • Role of the Court
    • Unfair dismissals benchbook
      • Overview of unfair dismissal
      • Coverage for unfair dismissal
        • Who is protected from unfair dismissal?
        • People excluded from national unfair dismissal laws
          • Independent contractors
          • Labour hire workers
          • Vocational placements & volunteers
          • Public sector employment
        • Constitutional corporations
        • High income threshold
        • Modern award coverage
        • Application of an enterprise agreement
        • What is the minimum period of employment?
          • How do you calculate the minimum period of employment?
          • What is continuous service?
          • What is an excluded period?
        • Bankruptcy
        • Insolvency
      • What is dismissal?
        • When does a dismissal take effect?
        • Terminated at the employer's initiative
        • Forced resignation
        • Demotion
        • Contract for a specified period of time
        • Contract for a specified task
        • Contract for a specified season
        • Training arrangement
        • What is a transfer of employment?
        • Periods of service as a casual employee
        • What is a genuine redundancy?
          • Job no longer required due to changes in operational requirements
          • Consultation obligations
          • Redeployment
        • What is the Small Business Fair Dismissal Code?
      • What makes a dismissal unfair?
        • Valid reason relating to capacity or conduct
          • Capacity
          • Conduct
        • Notification of reason for dismissal
        • Opportunity to respond
        • Unreasonable refusal of a support person
        • Warnings – unsatisfactory performance
        • Size of employer's enterprise & human resources specialists
        • Other relevant matters
      • Making an application
        • Application fee
        • Timeframe for lodgment
        • Extension of time for lodging an application
        • Who is the employer?
        • Multiple actions
        • Discontinuing an application
      • Objecting to an application
      • Commission process – conciliations, hearings and conferences
        • Conciliation
        • Hearings and conferences
        • Preparing for hearings and conferences
        • Representation by lawyers and paid agents
        • Rescheduling or adjourning matters
        • Bias
      • Remedies
        • Reinstatement
          • Order for reinstatement cannot be subject to conditions
          • Order to maintain continuity
          • Order to restore lost pay
        • Compensation
          • Calculating compensation
          • Instalments
          • Mitigation
          • Remuneration
          • Any other matters that the Commission considers relevant
          • Compensation cap
      • Dismissing an application
      • Evidence
      • Costs
        • Costs against representatives
        • Security for costs
      • Appeals
        • Staying decisions
      • Role of the Court
    • JobKeeper disputes benchbook
      • Introduction
        • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
      • JobKeeper enabling directions – general information
        • Service & entitlement accrual while a JobKeeper enabling direction applies
        • When a JobKeeper enabling direction will have no effect
        • Stand downs that are not jobkeeper enabling stand downs
        • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
      • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
        • Directions about duties & location of work
      • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
        • Jobkeeper enabling stand down directions – employer previously entitled to jobkeeper payment for employee
        • Directions about duties & location of work – employer previously entitled to jobkeeper payment for employee
        • Termination of a jobkeeper enabling direction made by a legacy employer
      • Agreements about days or times of work
        • Agreements about days or times of work – employers currently entitled to jobkeeper payments
        • Agreements about days or times of work – employers previously entitled to jobkeeper payment for employee
        • Termination of an agreement about days or times of work
      • Employer payment obligations
        • Wage condition
        • Minimum payment guarantee
        • Hourly rate of pay guarantee
      • Agreements about annual leave
      • Protections
      • Jobkeeper disputes the Commission cannot assist with
      • Applications to deal with a dispute about the operation of Part 6-4C
        • Who can make an application
        • Responding to an application
        • Objecting to an application
        • Discontinuing an application
      • Commission process
        • General information
        • Conferences & hearings during the COVID-19 pandemic
        • Procedural issues
      • Evidence
      • Outcomes of Commission dispute resolution under Part 6-4C
        • Contravening an order of the Commission
        • Appeals
        • Role of the Court
      • Attachments
      • Attachment 5 – Jobkeeper provisions that continue to apply on or after 29 March 2021
    • References in the benchbooks
    • Vaccination related matters
  • Practice notes
    • Appeal proceedings
    • Discontinuing matters
    • Fair hearings
    • Lawyers & paid agents
    • Orders to attend & orders to produce
    • Requests to appear remotely
    • Unfair dismissal proceedings
  • Transcripts and recordings
    • Recent transcripts
    • Ceremonial sittings transcripts

Main navigation

Unfair dismissals benchbook

Reinstatement

On this page:

  • Introduction
  • What does an order for reinstatement mean?
  • When is reinstatement not appropriate?
  • Case examples
  • Reappointed to their previous position
  • Appointed to another position no less favourable
  • Case example
Content

Introduction

The Fair Work Commission must determine if reinstatement is appropriate before considering any other remedy. It is not until the Commission is satisfied that reinstatement is inappropriate that compensation can be considered.[1]

What does an order for reinstatement mean?

See Fair Work Act 2009 s.391

An order for reinstatement means that the employer must:

  • reappoint the person to the position in which they were employed immediately before the dismissal,[2] or
  • appoint the person to another position with terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.[3]

When ordering reinstatement the Commission does not have to specify a particular position. It can be left to the employer to choose the position and to comply with the order to provide terms and conditions that are no less favourable than those on which the person was employed immediately before their dismissal.[4]

When is reinstatement not appropriate?

Reinstatement might be inappropriate in a range of circumstances, for example:

  • if the employer no longer conducts a business into which the employee may be reappointed[5]
  • if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case[6]
  • where there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship[7]
  • where reinstatement of an employee would almost certainly lead to a further termination of the employee's employment (for example, because the employer discovers an act of serious misconduct after the employee's termination)[8]

Loss of trust and confidence

'Trust and confidence is a necessary ingredient in any employment relationship …'[9] Where trust and confidence have been lost, reinstatement may be impractical.[10] The reason for the loss of trust and confidence must be 'soundly and rationally based'.[11]

An employer who has accused an employee of wrongdoing justifying summary dismissal may be reluctant to change their opinion regardless of a court finding.[12] Consequently it is important to carefully scrutinise any claim by an employer that reinstatement is impractical because of a loss of confidence in the employee.[13]

The fact that it may be difficult or embarrassing for an employer to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.[14]

The loss of trust and confidence is a relevant factor to be considered 'but it is not necessarily conclusive'.[15]

Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.[16]

No positions available

It is common that, by the time a matter is determined by the Commission, the position that was occupied by the employee is no longer available.[17] This on its own is insufficient for a finding that reinstatement is not appropriate.[18] The unavailability of a job vacancy is just one factor to be taken into account in determining whether reinstatement is appropriate.[19]

It is not appropriate to reinstate an employee to a lower position when a position with terms and condition no less favourable is unavailable.[20] The only appropriate remedy in this case would be compensation.

Sick or injured employee

Reinstatement of an incapacitated employee will not be appropriate when:

  • The employee would be unable to perform their contractual obligations in the future, or would have to perform duties radically different to the terms of their employment contracts.[21]
  • It would impose a 'material future productivity burden' or some other 'unreasonable burden' on the employer.[22]
  • It would 'impose an unreasonable burden on other employees'.[23]
  • The following matters may be considered in determining whether reinstatement is appropriate:
  • The terms of the employment contract; in particular, the inherent requirements of the employee's contractual position.
  • Whether the incapacity prevents the employee from fulfilling the inherent requirements of the employee's contractual position.
  • The range of duties or actual job performed by the employee prior to dismissal. When the position covers a wide range of duties and the employee is unable to perform only some of those duties it is less likely incapacity will be determinative against reinstatement.
  • Whether modified work arrangements are practical and reasonable. This includes the provision of special equipment or modified duties to enable the employee to make a full or substantial contribution to the employer's enterprise. It is often impractical or unreasonable for small employers to provide modified duties.

The likelihood that the employee will substantially recover from the illness or injury.
Whether the employer had any statutory duties under workers' compensation or other legislation, and whether those duties were complied with.[24]
These matters are interrelated and cumulative.[25] The list is not exhaustive.[26]

Case examples

Reinstatement appropriate

Threats of violence to other employees

Galea v Tenix Defence Pty Ltd, PR928494 (AIRCFB, Giudice J, Lawler VP, Bacon C, 11 March 2003).

The employee was alleged to have threatened a former colleague about to give evidence on behalf of the employer.

The Full Bench found that threats of this nature would usually mean that reinstatement would be inappropriate. In this case the Full Bench found that it would be possible for the relationship between the employer and employee to improve. It also found that the threats were not indicative of future behaviour.

Workplace injury and return to work plan

Chetcuti v Coles Group Supply Chain Pty Ltd [2012] FWA 6600 (Roberts C, 18 September 2012).

The employee sustained an injury at work and undertook a return to work plan to enable him to resume his normal duties. After some discussion between the employee and the employer about the employee providing medical evidence, the employee was dismissed for failing to attend meetings and provide medical certificates.

After concluding that the employee was unfairly dismissed, it was found that the employee was restored to health and willing and capable of resuming his duties. The Commissioner ordered his reinstatement.

Misconduct

Regional Express Holdings Ltd T/A Rex Airlines v Richards [2010] FWAFB 8753 (Giudice J, Kaufman SDP, Ryan C, 12 November 2010).

It was found that the employee had deliberately driven a work vehicle in an unsafe manner and had not been honest in a disciplinary hearing. In the first instance it was found that while there was evidence of misconduct, in the circumstances the dismissal was harsh and reinstatement was ordered.

On appeal the Full Bench upheld the decision at the first instance to reinstate the employee with continuity of service but declined to award payment for remuneration lost.

Loss of trust and confidence due to dishonesty

Balfours Bakery v Cooper [2011] FWAFB 8032 (Giudice J, Hamberger SDP, Spencer C, 2 December 2011).

The employee suffered a shoulder injury. He made a claim for income protection insurance and had access to 2 years' income protection. He then made a WorkCover claim. The employer dismissed the employee and claimed that the injury prevented him from returning to work and that he had been dishonest in making both the insurance claim and the WorkCover claim.

The Full Bench found that it was open to the member at first instance to conclude there had been no deliberate dishonesty and therefore no breakdown in trust and confidence.

Workplace injury and subsequent illness

Cook v ACI Operations Pty Ltd [2012] FWA 140 (Hampton C, 22 February 2012).

At the first instance it was found that the employee had been unfairly dismissed. He had been given a full clearance to attend work in relation to the workplace injury.

It was found that the employee could be accommodated back into the workplace without causing the employer unreasonable burden.

Reinstatement NOT appropriate

Redundancy

Ball v Metro Trains Melbourne T/A Metro Trains [2012] FWA 8384 (Roe C, 1 October 2012).

The employee's redundancy was found not to be a genuine redundancy because the employer failed to satisfy the requirements for consultation. The employee sought reinstatement.

It was found that there was not an appropriate position in which to reinstate the employee. The Commission ordered compensation instead.

Occupational health and safety breach

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243].

The employee was dismissed for breaching health and safety policy when he placed his arms, head and torso under an unstable load on a forklift. It was held that this was a valid reason for dismissal amounting to serious misconduct.

Breakdown of the employment relationship

Bellia v Assisi Centre Inc T/A Assisi Centre Aged Care [2011] FWAFB 5944 (Drake SDP, Ives DP, Simpson C, 5 September 2011).

The employee was a priest who was dismissed by his employer, an aged care facility. At the first instance reinstatement was ordered.

On appeal reinstatement was found to be inappropriate due to the breakdown in relationship between the employee and the employer and because of the employee's inability to carry out the functions of his pastoral role due to an adverse finding by the Roman Catholic Church.

Disobeying a clear direction and policy

King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014] FWCFB 2194 (Hatcher VP, Drake SDP, Bull C, 10 April 2014).

Decision at first instance [2014] FWC 6413 (Lawrence DP, 3 October 2014).

The employee was a teacher, who was dismissed for transporting students in his car on weekends to participate in surf lifesaving activities, contrary to directions issued by the school, and the policy of the Catholic Education Diocese of Parramatta. At first instance reinstatement was held not to be appropriate because of a loss of trust and confidence.

On appeal, it was found that the Commission had erred in not giving consideration to reinstatement to an alternative non-teaching position at another school in the Diocese or the Diocese's head office. Upon rehearing, the Commission found it was inappropriate to order reinstatement to an alternative position as the positions available were casual or fixed term and at a lower salary level than the teacher's previous position or did not suit the teacher's experience, skills or remuneration. Further, it was held that it was not appropriate to order reinstatement to a party that had not been directly involved in the case.

Reappointed to their previous position

See Fair Work Act s.391(1)(a)

Reinstatement means 'to put back in place', to restore employment as it 'existed immediately before the termination'.[27]

'[T]he employee is to be given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination'.[28]

Reinstatement is 'meant to be real and practical, not illusory and theoretical'.[29]

Appointed to another position no less favourable

See Fair Work Act s.391(1)(b)

The 'position' refers to not only pay and other benefits but also to the work performed by the employee.[30]

Case example

Appointed to another position no less favourable

IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (Boulton J, O'Callaghan SDP, Ryan C, 9 September 2011), [(2011) 212 IR 141].

In the first instance the employer was ordered to reinstate the employee to his former position. The reason given for not reinstating him to another warehouse in the same area was that the other warehouses came under a different agreement.

On appeal the Full Bench found that while there were some differences between the enterprise agreements at the various sites, it was possible to reinstate the employee to a different site on terms that were 'no less favourable'. The 'no less favourable requirement does not require terms and conditions to be the same. It is satisfied if the position is an 'equivalent position' or a 'close substitute'.

References

Content

[1] See discussion of Fair Work Act s.390(3) in Holcim (Australia) Pty Ltd v Serafini [2011] FWAFB 7794 (Drake SDP, Sams DP, Cloghan C, 10 November 2011) at para. 24, [(2011) 216 IR 1]; see also Hatwell v Esso Australia Pty Ltd [2019] FWC 931 (Colman DP, 13 February 2019).

[2] Fair Work Act s.391(1)(a).

[3] Fair Work Act s.391(1)(b).

[4] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 53, [(2014) 240 IR 130].

[5] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 17; citing Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296.

[6] See for e.g. Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 (Hatcher VP, Smith DP, Roe C, 12 March 2015).

[7] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at paras 19–20. See also Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 [48]–[54].

[8] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 17.

[9] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 24; Note: Perkins was decided under legislation with different wording to the current wording, using 'impracticable' rather than 'inappropriate'. The Full Bench in Australia Meat Holdings Pty Ltd v McLauchlan, Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 18], found that the observations in Perkins were still relevant to the question of whether reinstatement was inappropriate.

[10] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 40.

[11] ibid.

[12] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.

[13] ibid.

[14] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 27; citing Perkins v Grace Worldwide (Aust) Pty Ltd(1997) 72 IR 186, 191.

[15] Australia Meat Holdings Pty Ltd v McLauchlan, Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 17].

[16] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 28.

[17] Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 [15].

[18] ibid.

[19] ibid.

[20] ibid.

[21] ibid., at para. 51.

[22] ibid.

[23] ibid.

[24] ibid., at para. 54. See for e.g. Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 (Hatcher VP, Smith DP, Roe C, 12 March 2015).

[25] ibid., at para. 55.

[26] ibid.

[27] Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 (McHugh J) [14].

[28] ibid.

[29] ibid., at para. 33.

[30] Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; cited in IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (Boulton J, O'Callaghan SDP, Ryan C, 9 September 2011) at para. 35, [(2011) 212 IR 141].

How useful was this page?*

Note: your comments are anonymous. We use them to improve the website. Do not include any personal details.
Contact us or find legal help if you need a response.
FWC footer logo

Footer

  • Language help
  • Contact us
  • About us
  • Site map
Content

Subscribe

Subscribe to regular updates on different services and topics. Find out what you can subscribe to. 

Footer bottom menu

  • Copyright ©
  • Statement of commitment to First Nations Australians
  • Accessibility
  • Disclaimer
  • Privacy
Back to top
Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 15 Feb 2022
Location on last update: https://www.fwc.gov.au/reinstatement