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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • Sexual harassment that occurred or started before 6 March 2023
        • What is sexual harassment at work
        • Who can apply for orders to stop sexual harassment at work
        • Discrimination, the general protections and work health and safety
        • What to do if you’re sexually harassed at work
        • Apply to stop sexual harassment at work
        • Respond to an application about sexual harassment at work
        • The Commission’s process to resolve sexual harassment at work
        • Conciliation about sexual harassment at work
        • Conferences and hearings about sexual harassment at work
      • Sexual harassment commencing from 6 March 2023
        • The prohibition on workplace sexual harassment
        • What is sexual harassment in connection with work?
        • Who can apply to us to deal with a sexual harassment dispute
        • Sexual harassment and discrimination, the general protections and work health and safety
        • What to do if you’re sexually harassed in connection with work
        • The process for sexual harassment dispute claims
        • How to apply to us to deal with a sexual harassment dispute
        • Apply to resolve a sexual harassment dispute (Form F75)
        • How to respond to a sexual harassment dispute application
        • Respond as an individual to an application to deal with a sexual harassment dispute (Form F76)
        • Respond as an employer or principal to an application to deal with a sexual harassment dispute (Form F77)
        • Member conferences and determinative hearings is sexual harassment disputes
          • Member conferences in sexual harassment disputes
          • Determinative conferences and hearings in sexual harassment disputes
          • Keeping the sexual harassment dispute case confidential
        • Sexual harassment disputes that are not resolved
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • Types of zombie agreements
        • Our list of possible zombie agreements
        • What to do if you have a zombie agreement
        • Extending a zombie agreement
        • Apply to extend a zombie agreement (Form F81)
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
        • Modern Awards Pay Database API
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
    • Gender pay equity
      • Gender pay equity in the Fair Work Act
      • Equal remuneration orders
      • Apply for an equal remuneration order (Form F46A)
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Additional material for the Annual Wage Review 2022-23
          • Correspondence for the Annual Wage Review 2022–23
          • Decisions & statements for the Annual Wage Review 2022–23
          • Notices of listing for the Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Statistical reporting for the Annual Wage Review 2022–23
          • Submissions for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
          • Transcripts for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Ballot for withdrawal of Manufacturing Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Svitzer Australia Pty Limited industrial action
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • 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
    • Changes to our role with 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
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      • 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
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        • 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)
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Hearings & decisions

  • Hearings schedule
    • Adelaide hearings
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    • Hobart hearings
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    • Regional hearings
  • How the Commission works
    • What to do when we set your tribunal date
    • About conferences and hearings
    • Prepare for a conference or hearing
    • Possible outcomes of a hearing or conference
    • What happens during a hearing
      • Inside the hearing room
    • On the day of your conference or hearing
    • Recording a hearing or conference
    • Ask to delay a hearing or conference
  • Appeal a decision or order
    • The appeals process
      • Reasons you may appeal a decision or order
      • Who can appeal a decision?
      • How to appeal a decision
      • Order to ‘stay’ all or part of a decision
      • Create an appeal book
    • Prepare for an appeal hearing
      • Prepare an outline of submissions for an appeal
      • What happens in an appeal hearing
      • Who sits on an Appeal Bench?
    • Timetable of appeal hearings
    • Results of appeals
    • Apply for permission to appeal (Form F7)
  • Decisions and orders
    • National wage and safety net review decisions
    • Significant decisions and summaries
  • Major cases
    • 4 yearly review
      • All decisions and statements
      • Alleged NES inconsistencies
      • Awards under review
      • Common issues
        • Abandonment of employment
        • Annual leave
        • Annualised salaries
        • Apprentice conditions
        • Award flexibility
        • Blood donor leave
        • Casual employment
        • Family and domestic violence leave
        • Family friendly work arrangements
        • Micro business schedule
        • National Training Wage
        • Overtime for casuals
        • Part-time employment
        • Payment of wages
        • Penalty rates case
          • Decisions & statements
          • General Retail Industry Award
          • Hair and Beauty Industry Award
        • Public holidays
        • Transitional provisions
      • Final stage proceedings
      • Plain language re-drafting
        • Fast Food Industry Award
        • Hair and Beauty Industry Award
      • Timetable
    • Annual wage reviews
      • Annual Wage Review 2022–23
        • Additional material for the Annual Wage Review 2022-23
        • Correspondence for the Annual Wage Review 2022–23
        • Decisions & statements for the Annual Wage Review 2022–23
        • Notices of listing for the Annual Wage Review 2022–23
        • Research for the Annual Wage Review 2022–23
        • Statistical reporting for the Annual Wage Review 2022–23
        • Submissions for the Annual Wage Review 2022–23
        • Timetable for the Annual Wage Review 2022–23
        • Transcripts for the Annual Wage Review 2022–23
      • Annual Wage Review 2021–22
        • Additional material for the Annual Wage Review 2021–22
        • Correspondence for the Annual Wage Review 2021–22
        • Decisions & statements for the Annual Wage Review 2021–22
        • Determinations for the Annual Wage Review 2021–22
        • Draft determinations for the Annual Wage Review 2021–22
        • National Minimum Wage Order 2022
        • Notices of listing for the Annual Wage Review 2021–22
        • Research for the Annual Wage Review 2021–22
        • Statistical reporting for the Annual Wage Review 2021–22
        • Submissions for the Annual Wage Review 2021–22
        • Timetable for the Annual Wage Review 2021–22
        • Transcripts for the Annual Wage Review 2021–22
      • Annual Wage Review 2020–21
        • Additional material for the Annual Wage Review 2020–21
        • Consultations for the Annual Wage Review 2020–21
        • Correspondence for the Annual Wage Review 2020–21
        • Decisions & statements for the Annual Wage Review 2020–21
        • Determinations for the Annual Wage Review 2020–21
        • Draft determinations for the Annual Wage Review 2020–21
        • National Minimum Wage Order 2021
        • Notices of listing for the Annual Wage Review 2020–21
        • Research for the Annual Wage Review 2020–21
        • Statistical reporting for the Annual Wage Review 2020–21
        • Submissions for the Annual Wage Review 2020–21
          • Initial submissions for the Annual Wage Review 2020–21
          • Post-budget submissions for the Annual Wage Review 2020–21
          • Submissions in reply for the Annual Wage Review 2020–21
          • Supplementary submissions for the Annual Wage Review 2020–21
        • Timetable for the Annual Wage Review 2020–21
        • Transcripts for the Annual Wage Review 2020–21
      • Annual Wage Review 2019–20
        • Additional material for the Annual Wage Review 2019-20
        • Consultations for the Annual Wage Review 2019-20
        • Correspondence for the Annual Wage Review 2019-20
        • Decisions & statements for the Annual Wage Review 2019-20
        • Determinations for the Annual Wage Review 2019-20
        • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
        • National Minimum Wage Order 2020
        • Notices of listing for the Annual Wage Review 2019-20
        • Research for the Annual Wage Review 2019-20
        • Research proposals for the Annual Wage Review 2019-20
        • Statistical reporting for the Annual Wage Review 2019-20
        • Submissions for the Annual Wage Review 2019-20
          • Initial submissions for the Annual Wage Review 2019-20
          • Submissions in reply for the Annual Wage Review 2019-20
          • Supplementary submissions for the Annual Wage Review 2019-20
        • Timetable for the Annual Wage Review 2019-20
        • Transcripts for the Annual Wage Review 2019-20
      • Annual Wage Review 2018–19
        • Additional material for the Annual Wage Review 2018-19
        • Consultations for the Annual Wage Review 2018-19
        • Correspondence for the Annual Wage Review 2018-19
        • Decisions & statements for the Annual Wage Review 2018-19
        • Determinations for the Annual Wage Review 2018-19
        • National Minimum Wage Order 2019
        • Notices of listing for the Annual Wage Review 2018-19
        • Research for the Annual Wage Review 2018-19
        • Statistical reporting for the Annual Wage Review 2018-19
        • Submissions for the Annual Wage Review 2018-19
          • Initial submissions for the Annual Wage Review 2018-19
          • Submissions in reply for the Annual Wage Review 2018-19
        • Timetable for the Annual Wage Review 2018-19
        • Transcripts for the Annual Wage Review 2018-19
      • Annual wage reviews archive
        • Annual Wage Review 2012–13
    • Application to terminate the Apple Retail Enterprise Agreement 2014
    • Award flexibility – Hospitality and retail sectors
      • Application to vary the Hospitality Award
      • Application to vary the Restaurant Award
      • Application to vary the Retail Award
      • Background material
      • Correspondence
      • Decisions and statements
      • Notices of listing and directions
      • Research and data
      • Submissions
      • Transcript
    • Ballot for withdrawal of ME Division from CFMMEU
    • Family and domestic violence leave review
      • Decisions & statements
    • Proposed On Demand Delivery Services Award (Menulog)
    • Review of certain C14 rates in modern awards
    • Superannuation fund reviews
    • Work value case – Aged Care Industry
      • Correspondence
      • Decisions & statements
      • Notices of listing & directions
      • Research and information
      • Submissions
      • Transcript
    • Previous major cases
      • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Casual terms award review 2021
        • Background material
        • Correspondence
        • Decisions & statements
        • Determinations
        • Notices of listing & directions
        • Submissions
        • Transcripts
        • All documents
      • Clerks – Private Sector Award – Work from home case
      • Equal Remuneration Case 2010-12
        • Applications
        • Correspondence
        • Decisions & statements
        • Draft orders
        • Exhibits
        • Notices of listing
        • Site inspections
        • Submissions
        • Timetable
        • Transcripts
      • Equal Remuneration and Work Value Case
        • Applications
        • Correspondence
        • Decisions and statements
        • Legislation
        • Notices of listing and directions
        • Orders
        • Papers
        • Submissions
        • Timetable
        • Transcript
      • Health sector awards – pandemic leave case
        • Applications
        • Correspondence
        • Decisions and statements
        • Determinations
        • Information notes and articles
        • Notices of listing and directions
        • Orders
        • Submissions and witness statements
        • Transcript
      • Modern awards review 2012
        • Awards reviewed 2012
      • Svitzer Australia Pty Limited industrial action
      • Undergraduate qualifications review
  • Case law benchbooks
    • Anti-bullying benchbook
      • Overview of benchbook
      • What is workplace bullying?
      • Who is covered?
        • Definition of ‘worker’
        • Definition of ‘constitutionally-covered business’
          • What is a person conducting a business or undertaking?
          • What is a Territory or a Commonwealth place?
          • What is a constitutional corporation?
          • What is the Commonwealth?
      • When is a worker bullied at work?
        • What does ‘at work’ mean?
        • Risk of continued bullying
        • What does ‘Reasonable management action’ mean?
      • Making an application
      • Responding to an application
      • What if the worker has been dismissed etc
      • Commission processes
        • Procedural issues
        • Representation by lawyers and paid agents
      • Evidence
      • What are the outcomes?
        • When can the Commission dismiss an application?
        • Contravening an order of the Commission
      • Associated applications
        • Costs
        • Appeals
        • Role of the Court
    • Enterprise agreements benchbook
      • Overview of benchbook
      • What is an enterprise agreement?
        • Single-enterprise agreement
        • Multi-enterprise agreement
        • Differences between single and multi-enterprise agreements
        • Greenfields agreement
      • Content of an enterprise agreement
        • Permitted matters
        • Coverage
        • Scope – who will be covered?
        • Terms & conditions of employment
        • Base rate of pay
        • Nominal expiry date
        • Mandatory terms
        • Flexibility term
        • Consultation term
        • Dispute settlement term
        • Optional terms
        • Terms that cannot be included
          • Terms that exclude the NES
          • Unlawful terms
          • Designated outworker terms
      • Agreement making process
        • Representation
        • Employees must be notified of their right to be represented
        • Bargaining representatives
      • Bargaining
        • Good faith bargaining
        • How long does bargaining take?
      • Voting
        • Voting process
        • Who can vote?
        • Timeframe for vote
        • Voting methods
        • When is an agreement made?
      • What happens if the parties cannot agree?
      • Making an application
        • Common defects & issues
          • National Employment Standards – common defects & issues
          • Better off overall test – common defects & issues
          • Mandatory terms – common defects & issues
          • Other terms of the agreement
          • Pre-approval requirements – common issues
          • Forms & lodgment – common defects & issues
        • Who must apply
        • Timeframe to apply – within 14 days
        • Material to accompany application
        • Signing an agreement
        • Employer must notify employees
      • Commission approval process
        • Genuine agreement
          • Minor procedural or technical errors
        • Where a scope order is in operation
        • Particular kinds of employees
        • Better off overall test (BOOT)
          • When an agreement passes
          • Classes of employees
          • Which award applies
          • Advice about coverage
          • Loaded rates of pay
        • Public interest test
        • Undertakings
        • Powers of the Commission
      • Associated applications
        • Majority support determinations
        • Authorisations to commence bargaining
          • Single interest employer authorisations
          • Ministerial declaration
          • Low-paid authorisations
        • Scope orders
        • Bargaining orders
        • Serious breach declarations
        • Disputes
        • Workplace determinations
          • Low-paid workplace determinations
          • Industrial action related workplace determinations
          • Bargaining related workplace determinations
        • Role of the Court
        • Appeals
        • Varying enterprise agreements
          • Varying by agreement
          • Ambiguity or uncertainty
          • Casual employee definition and casual conversion provisions
          • Discrimination
        • Terminating enterprise agreements
          • Terminating by agreement
          • After its nominal expiry date
        • Terminating individual agreements
    • General protections benchbook
      • Overview of benchbook
        • When is a person covered by the general protections?
      • What are the general protections?
      • How do the general protections work?
        • Rebuttable presumption as to reason or intent
      • Coverage for general protections
        • What is a constitutionally-covered entity?
        • What is a Territory or a Commonwealth place?
        • What is a trade and commerce employer?
        • What is a Territory employer?
        • What is a national system employer?
      • What if I am not covered by the general protections?
      • What is adverse action?
        • What is dismissal?
        • What is ‘injuring’ the employee in his or her employment?
        • What is altering the position of the employee to the employee’s prejudice?
        • What is discriminating between the employee and other employees of the employer?
        • Threatened action and organisation of action
        • Exclusions
      • Workplace rights – Division 3
        • Meaning of workplace right
        • Coercion
        • Undue influence or pressure
        • Misrepresentations
        • Requiring the use of COVIDSafe
      • Industrial activities – Division 4
        • What are industrial activities?
        • Coercion
        • Misrepresentations
        • Inducements – membership action
      • Other protections – Division 5
        • Discrimination
          • Race
          • Colour
          • Gender identity & sexual orientation
          • Age
          • Physical or mental disability
          • Marital status
          • Family or carer’s responsibilities
          • Pregnancy
          • Religion
          • Political opinion
          • National extraction
          • Social origin
        • Exceptions
        • Temporary absence – illness or injury
        • Bargaining services fees
        • Coverage by particular instruments
        • Coercion – allocation of duties to particular person
      • Sham arrangements – Division 6
        • Misrepresenting employment
        • Dismissing to engage as independent contractor
        • Misrepresentation to engage as independent contractor
      • Making an application
        • Dismissal applications
          • Timeframe for lodgment
          • Late lodgment
        • Non-dismissal applications
        • Other types of applications
          • Multiple actions relating to dismissal
          • Unfair dismissal
          • Unlawful termination
          • Court application (interim injunction)
          • Discrimination
      • Power to dismiss applications
      • Evidence
      • Commission process
        • Conferences & hearings
        • Dealing with different types of general protections disputes
        • Rescheduling or adjourning matters
        • Representation by lawyers and paid agents
        • Bias
      • Outcomes
      • Costs
        • When are costs ordered by the Commission?
        • Costs against representatives
      • Appeals
      • Role of the Court
        • Enforcement of Commission orders
        • Types of order made by the Court
    • Industrial action benchbook
      • What is industrial action?
        • Unprotected industrial action
          • Orders to stop or prevent unprotected industrial action
        • Protected industrial action
          • Immunity
          • Common requirements
          • Employee claim action
          • Employer response action
          • Employee response action
          • Pattern bargaining
      • Taking protected industrial action
        • Protected action ballots
          • Who may apply?
          • Making an application
          • Commission process
          • Varying a protected action ballot order
          • Revoking a protected action ballot order
        • Voting
          • Ballot agents
          • Who may vote – roll of voters
          • Ballot papers
          • Voting procedure
          • Scrutiny of the ballot
          • Results of the ballot
          • When is industrial action authorised?
        • Notice requirements
        • Commencing protected industrial action
      • Payments relating to industrial action
        • Partial work bans
        • Unprotected industrial action – payments
        • Standing down employees
      • Suspension or termination of protected industrial action
        • Powers of the Commission
          • When the Commission may suspend or terminate
          • When the Commission must suspend or terminate
          • 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
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Unfair dismissals benchbook

Terminated at the employer's initiative

On this page:

  • Overview
  • The action of the employer must cause the termination
  • Repudiation
  • Abandonment of employment
  • Employment contract may continue after employment relationship is terminated
  • Case examples
Content

Overview

Contains issues that may form the basis of a jurisdictional issue

See Fair Work Act 2009 s.386(1)(a)

The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.[1]

The analysis of whether there has been a termination at the initiative of the employer for the purpose of s.386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.[2]

The termination of a contract of employment does not necessarily result in the termination of the employment relationship between the parties to that contract of employment: if the parties enter, or are taken to have entered, a new contract of employment, the employment relationship continues notwithstanding the termination of a prior contract of employment.[3]

Termination of employment may be ‘at the initiative of’ the employer even though it occurs in circumstances where the parties have agreed to a time-limited contract expiring on a specified date. The facts of a particular case may establish some decision or act on the part of the employer that brought about the end of the employment relationship (as distinct from the employment ending by effluxion of time).[4]

Related information

  • Forced resignation
  • Demotion
  • Contract for a specified period of time
  • Contract for a specified task
  • Contract for a specified season
  • Employment limited to the duration of a training arrangement

The action of the employer must cause the termination

A termination is at the employer's initiative when:

  • the employer's action 'directly and consequentially' results in the termination of employment, and
  • had the employer not taken this action, the employee would have remained employed.[5]

There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[6]

The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration.[7] It is important to examine all of the circumstances including the conduct of the employer and the employee.[8]

Repudiation

The test for repudiation by the employer is whether the conduct of the employer, when judged objectively, showed an intention to no longer be bound by a contract.[9] The employer's actual or subjective intention is not relevant.[10]

A repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract.[11] If the affected party accepts the repudiation the contract will end. [12]

Where an employer has repudiated the contract, and an employee accepts the repudiation and exercises their right to terminate the contract, this will amount to a termination at the employer's initiative.

An employee may engage in conduct amounting to a repudiation by seriously breaching the contract of employment.

The question of whether there has been a repudiation of the contract of employment is determined objectively. It is unnecessary to show a subjective intention to repudiate and is a question of fact not law.[13]

Repudiation may exist where an employer reduces the wages of an employee without the employee’s consent or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract. Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.[14]

Abandonment of employment

‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment, without proper excuse or explanation, and as a result shows an unwillingness or inability to substantially perform his or her obligations under the employment contract.[15]

This may be termed a ‘renunciation’ of the employment contract.

Renunciation is ‘the formal abandoning of a right, title, etc’ or ‘a voluntary giving up, especially as a sacrifice’.[16]

The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.[17]

Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

Employment contract may continue after employment relationship is terminated

Termination at the employer's initiative requires the termination of the employment relationship, not the contract of employment.[18]

Case examples

Terminated at the employer's initiative

Employer claimed employee resigned her employment

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

The applicant employee had submitted a letter of resignation which effectively gave 7 months’ notice. Her employer purported to accept the resignation but make it effective immediately. It was found that the termination of employment occurred at the employer's initiative.

Employer argued abandonment of employment

Sharpe v MCG Group Pty Ltd [2010] FWA 2357 (Asbury C, 22 March 2010).

An employee who had notified her employer that she would be unable to attend work due to medical reasons, and was then terminated, was found to have been terminated at the initiative of the employer. An argument that the employee had abandoned her employment by not attending for work as directed was rejected. It was held that the employer had terminated the employment.

Employer proposed changed working conditions to accommodate employee's pregnancy

Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 (Hampton C, 28 February 2011).

Permission to appeal refused [2011] FWAFB 2929 (Boulton J, Kaufman SDP, Bisset C, 10 June 2011), [(2011) 210 IR 17].

The employer and employee agreed that the employee work in a less difficult role as the employee was pregnant. However, when the employer informed the employee that there would be significant reduction in salary for the new role, the employee refused to agree, and regarded herself as having been dismissed. This was found to constitute a termination of employment at the initiative of the employer.

Employer claimed applicant left voluntarily and refused to return

Le Plastrier v Brons (Northern Belle Pty Ltd) [2012] FWA 4672 (Spencer C, 31 May 2012), [(2012) 222 IR 360].

The applicant disagreed with the employer regarding an allegedly non-compliant certificate for one of the workers. The applicant was concerned with her statutory obligations to the licensing authority. The employer over-ruled her saying the certificate was acceptable. When the applicant refused to work on the same shift as the worker she was told that her position would no longer be available as the day shift was finishing. The applicant was offered some work by another employee, however at no stage did the employer confirm the offer. This was found to constitute a termination of employment at the initiative of the employer.

Employee absent for more than 3 days

Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687 (Gregory C, 15 March 2019).

This application was lodged by a Canadian national who had been employed as a welder/metal fabricator. The applicant originally came to Australia on a temporary working holiday visa, which expired in April 2018. He then entered into an employment contract with Atlas Steel whereby it agreed to be his approved nominee for a Temporary Skill Shortage Visa.

On 21 June 2018 the applicant had an altercation with another employee. The following day the applicant left the workplace after encountering the same employee. The applicant went to his doctor who provided him with a certificate of capacity regarding a work-related injury/condition, which indicated that it was necessary for him to be off work until 5 July 2018. During this period the respondent concluded that the applicant had abandoned his employment, given his absence from work for a continuous period of more than three days, and consequently decided to withdraw its visa nomination.

The Fair Work Commission was not satisfied that the applicant abandoned his employment on the basis he ceased to attend his place of employment without a proper excuse or explanation. The Commission was satisfied that by withdrawing its visa nomination the respondent effectively acted to terminate applicant’s employment, and that its actions in doing so were harsh and unreasonable. The respondent made no attempt to contact the applicant after he left the workplace on 22 June 2018. The Commission found that the applicant was unfairly dismissed and ordered $7,022.40 compensation, less deduction of tax as required by law.

Contract NOT for specified period

Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017).

The applicant was employed by Navitas as a casual employee to perform teaching services from 2005 to 2012. In April 2012 he was offered employment as a 'fixed-term teacher' until 30 June 2013. The letter of offer provided that either party could terminate the employment by giving four weeks' written notice. The applicant accepted that offer. After the completion of that period of employment, he was offered and accepted employment on substantially the same terms for the period from 1 July 2013 to 30 June 2014. In June 2014, the employee was initially told his contract would not be 'renewed' because his administrative work had been unsatisfactory. However after further discussions he was then offered, and accepted, another employment contract for the period 1 July 2014 to 30 June 2016.

At the end of the term of the last contract on 30 June 2016 the applicant was not offered a further contract. On 31 May 2016 the employee had been informed that he would not be offered a further fixed-term contract based on an assessment of his performance and disciplinary record. His employment consequently ended on 30 June 2016. The employee contended this constituted a dismissal within the meaning of s.386(1)(a) of the Fair Work Act and that his employment was terminated at the initiative of the employer. The respondent contended that there was no dismissal, and that the employment had terminated through the effluxion of time.

At first instance, the Commission considered itself bound by Lunn and held there was no dismissal at the initiative of the employer. The applicant appealed on grounds including that the Commission erred in relying on Lunn. Permission to appeal was granted and the Full Bench considered whether the interpretation and application of s.386(1)(a) should continue to be guided by Lunn. The Full Bench majority ruled that Lunn did not correctly or completely state the proper approach to the interpretation of the expression 'termination of employment at the initiative of the employer' in s.170CD(1) of the Workplace Relations Act 1996 (Cth) and its application to the circumstances of a person employed on a time-limited contract(s). The Full Bench majority held that because the Commission in first instance considered itself bound to follow Lunn, despite reservations about its correctness, its consideration of whether the employee was dismissed within meaning of s.386(1)(a) was 'artificially constrained', which constituted an appealable error.

The Full Bench majority then considered whether the exclusion in s.386(2)(a) applied in this case. They found that as the final contract of employment provided an unqualified right for either party to terminate contract on four weeks' written notice, or four weeks' pay in lieu of notice, the contract was not for specified period and so the exclusion in s.386(2)(a) did not apply.

The Full Bench majority upheld the appeal and quashed the decision at first instance. The matter was referred back to the Commission to determine whether the employee was dismissed by Navitas within the meaning of s.386(1)(a).

Note: The matter was settled prior to the hearing taking place.

NOT terminated at the employer's initiative

Apprenticeship contracts

Qantas Airways Limited v Fetz and others, Print Q1482 (AIRCFB, Giudice J, Harrison SDP, Lawson C, 9 June 1998), [(1998) 84 IR 52].

On appeal, apprentices who were placed on apprenticeship contracts with a duration of four years but with an expectation that there would be an offer of permanent employment after that subject to performance and operational requirements were held to be subject to contracts for a specified period of time. Therefore when the apprenticeship contracts expired and the apprentices were not offered further employment, this was not a termination of employment at the initiative of the employer.

References

Content

[1] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200].

[2] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75.

[3] Department of Justice v Lunn PR974185 (AIRCFB, Lawler VP, Harrison SDP, Raffaelli C, 27 November 2006) at para. 27, [(2006) 158 IR 410]; citing Brackenridge v Toyota Motor Corporation Australia [1996] IRCA 163 (19 April 1996).

[4] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75; see also Mahony v White [2016] FCAFC 160 (29 November 2016) at para. 20.

[5] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].

[6] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011) at para. 24, [(2011) 212 IR 248]; citing O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

[7] Pawel v Advanced Precast Pty Ltd, Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000).

[8] O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd, Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

[9] Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 (Harrison SDP, Richards SDP, Williams C, 30 June 2007) at para. 13.

[10] ibid.

[11] Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) at para. 81, [(2009) 239 CLR 361].

[12] ibid., see also Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 (Lawler VP, Richards SDP, Larkin C, 9 April 2010) at para. 23, [(2010) 194 IR 22].

[13] Simon v NGS Group Pty Ltd ATF NGS Discretionary Unit Trust [2019] FWC 3442 (Wilson C, 5 June 2019) at para. 56.

[14] ibid.

[15] Abandonment of Employment [2018] FWCFB 139 (Hatcher VP, Gostencnik DP, Cribb C, 23 January 2018) at para. 21.

[16] The Macquarie Dictionary Online.

[17] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 (13 December 2007) at para. 41; citing  Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 (2 May 1989) at para. 16 (per Deane and Dawson JJ), [(1989) 166 CLR 623 at p. 659]; see for eg Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687 (Gregory C, 15 March 2019) at paras 49–53.

[18] Searle v Moly Mines Limited [2008] AIRCFB 1088 (Giudice J, O'Callaghan SDP, Cribb C, 29 July 2008) at para. 22, [(2008) 174 IR 21]; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at para. 23 (Brennan CJ, Dawson and Toohey JJ), [(1995) 185 CLR 410 at p. 427].

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 15 Feb 2022
Location on last update: https://www.fwc.gov.au/terminated-employers-initiative