To end proceedings or to suspend them to another time or place.
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Abbreviation for Fair Work Commission.
Refers to the Commonwealth government or an Australian territory.
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
a proprietary limited company
a foreign corporation
a trading or financial corporation formed within the limits of the Commonwealth
the Commonwealth authority
a body corporate incorporated in a territory
a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
A case or legal proceeding before the Commission.
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
An entity that is not a constitutional corporation. The following are not constitutional corporations:
some state government bodies
corporations whose activities do not include significant trading or financial functions (e.g. some charities).
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
A person or business that has entered into a contract for services with an independent contractor.
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
performance management processes
disciplinary action for misconduct
informing a worker about unsatisfactory work performance or inappropriate work behaviour
asking a worker to perform reasonable duties in keeping with their job, and
maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
An organisation in which one person is responsible for the business.
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
a contractor or subcontractor
a person employed by a labour hire company who is working at a particular business or organisation
an apprentice or a trainee
a work experience student
Only people who are considered to be workers may apply for an order to stop bullying at work.
A place where a person performs work.
See bullying at work.
Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.
If you choose not to have a conciliation, or you have a conciliation that fails to produce a settlement, the case will automatically go to a hearing or conference unless the employee formally discontinues their application.
Because it is conducted by telephone you do not need to come to the Fair Work Commission offices.
Conciliation is an informal, private and generally confidential process where a Commission Conciliator helps employees and employers to resolve an unfair dismissal application. The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution. In conciliation, each party can negotiate in an informal manner and explore the possibility of reaching an agreed settlement. Any outcome is possible if both parties agree to it. This is different from a hearing, where the outcomes are limited and strictly controlled by law.
You are under no obligation to agree to a settlement if you don’t want to. It is your right to maintain your position and proceed to a hearing. But it is in your interests to try conciliation as they are often successful, with 4 out of 5 matters settling at this stage. A settlement can avoid the time delays and costs of having a formal hearing.
Unrepresented parties are offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.
Conciliators are highly experienced and have conducted a large number of conciliations. They will manage the process for you and guide you through the conciliation. But there are things you can do to ensure the process runs smoothly and you make the most of this opportunity:
1. Be available on the scheduled date
Ensure you are able to take part in the conciliation on the date scheduled. If you have a very good reason why you cannot participate at the scheduled time you can apply in writing to the Commission for an adjournment to a different time or date. An adjournment is not automatically granted – the Commission must consider that the grounds for the request are substantial.
2. Set aside time in a quiet place
A conciliation can take around 90 minutes to complete. It requires your complete attention, so you need to be in a quiet place where you can listen, speak openly and think without being disturbed. Many employees participate in the conciliation from home even if they have found another job, as the new workplace may not be a suitable location. Meanwhile employers are usually in their workplace. But if that workplace is noisy or filled with customers it will not be a suitable location and the employer should seek a more appropriate spot.
3. Be contactable at the scheduled time
Make sure you can be reached by phone at the time the conciliation is scheduled to take place. You should be available on the contact number you have listed in your application or response form. If it is a mobile phone ensure you are in an area where reception is strong and that your battery is fully charged. If your phone number has changed, please contact the Commission as soon as possible before the conciliation to make sure we can contact you on the day.
4. Have the paperwork in front of you
Both parties should have the employee’s application and employer’s response prior to the conciliation commencing. Both of those documents along with any payslips, letter of dismissal or other relevant documents should be in front of you so you can follow the discussions. It is also helpful to have a pen and paper for taking notes.
5. Know what outcomes you want to achieve or will accept
Employees should come to conciliation with a good idea of the outcomes they want to achieve. These may range from being allowed to resign instead of being dismissed to obtaining a reference to asking for compensation for lost wages. Employers should come to conciliation with a good idea of the outcomes they are prepared to consider.
6. Request an interpreter beforehand if needed
If you need an interpreter to allow you to take part in the conciliation please notify the Commission well beforehand so that one may be arranged for you. These requests cannot be accommodated on the day of the conciliation, which can lead to delays in the case being dealt with. Interpreters are supplied at no charge to employees and employers.
How the conciliation is conducted
Conciliations are usually held by telephone. The conciliator will be in their office at the Commission. The employer and employee can be in any location, provided it is quiet and they will not be disturbed. A conciliation can take around 90 minutes to complete.
The conciliator will call the parties and introduce them into a telephone conference call. Any representatives for either side will also be called if they are not in the room with the employee or employer. This can mean there are as many as 5 different people on the conference call.
The style of each conciliator may vary but, in general, a conciliation will include the following steps:
the conciliator explains their role and the manner in which the conciliation is to be run
each side briefly outlines their story including what happened, any relevant facts and what they want
the conciliator may allow or ask questions
the circumstances, and any issues arising, are discussed – the conciliator may talk separately to the parties. While this is happening the party not in the private discussion will be disconnected and called back later. In these private discussions each side is given the opportunity to speak to the conciliator about their situation. The conciliator will discuss with them proposals that might lead to a resolution. The conciliation can continue in private discussions for some time, as the conciliator relays proposals and counter-proposals from one side to the other. This process may help the parties reach an agreed settlement.
the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and helping the parties draft an agreement in writing.
After the private discussions all the parties come back together on a joint conference call. If an agreed settlement has been reached the conciliator will confirm the details with the parties. But if no agreement has been reached the conciliator will explain the next steps in the process, which is going to a formal conference or hearing.
The frequently asked questions on the Commission’s website might assist in answering any remaining questions you may have about conciliations, conferences and hearings.
Conciliators work for the Fair Work Commission. They are trained and experienced in conciliation, workplace relations and unfair dismissal law.
Conciliators are independent and impartial – they are not on the 'side' of employees or employers. The conciliator's job is to:
help the parties reach a resolution
lead the discussion and provide guidance
ensure conversations remain polite and on-topic, and
explore the issues involved.
The conciliator does not:
give either party legal advice
argue on behalf of either party
judge the facts of the case, or
make any type of decision or recommendation.
If an agreed settlement has been reached, a written agreement will be prepared for both parties to sign. Unrepresented parties are offered a 3-day cooling off period to decide if they wish to opt out of any agreed settlement.
If no agreement is reached the matter will automatically proceed to a formal conference or hearing, unless the employee chooses to discontinue their application. Conferences and hearing will generally not occur until at least 2 months after the conciliation.