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.
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
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.
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.
A constitutionally covered business is:
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.
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
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:
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.
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.
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:
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.
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:
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.
When someone lodges an application for unfair dismissal remedy they are beginning a formal legal process. When the application is lodged, a copy of the application is sent to the employer, and the Fair Work Commission will contact them to ask them to respond to the application.
Where possible, the Commission tries to resolve unfair dismissal applications by agreement.
The key steps in the unfair dismissal application process are:
Making an unfair dismissal application is a legal process – it is not just making a complaint against your employer. You need to take the process seriously and follow the proper procedures.
Start your claim by lodging an application form (Form F2) that is available from the Commission’s website and offices. The application will include:
It is important that you answer every question in the form in as much detail as possible. If you believe a question is not relevant to you then you should respond by answering 'not relevant'.
If you don't complete your application fully, your case can be delayed until the problems are fixed. If you do not fix those problems quickly your application may be dismissed, which means the Commission will not deal with it. Use this sample application form (PDF) to see how to complete this important document correctly.
To make an application you are required to pay an application fee.
The application fee is adjusted annually on 1 July. Please go to the Lodge an application page for the current amount.
The fee may be refunded if the matter is discontinued before any conference or hearing is held before a Fair Work Commission member.
If paying the fee will cause you financial hardship, you can apply to have the fee waived (which means you do not have to pay). If you wish to apply for a waiver, a completed Fee waiver form should be included with the application (do not send it separately). A copy of this form will not be forwarded to the employer.
Applications can be lodged by email, online, by express post, or in person at any Fair Work Commission office.
If you cannot lodge by any of the above means, an application can be made over the phone on 1300 799 675. However, a telephone application cannot proceed until a complete and signed application is received, along with either payment or a fee waiver application.
See the Lodge an application page for more details, or watch the video on this page How do employees make an unfair dismissal claim? to see how to lodge an application.
Once you have lodged your application, the Commission will send a copy of your completed application form to the employer, who then has 7 days to respond. In that response the employer will explain why they believe your dismissal was fair, and may make any objections to the application. See Responding to an application for more details.
Each application goes to a section of the Commission called the Registry, where it is given to a case manager.
The case manager’s role is to prepare each file to allow the Commission’s processes to go ahead – they are not there to help employees or employers manage the application. They can provide information about the process, but they cannot provide any legal advice about how to submit or run an application. This means that they cannot give advice about how to fill out an application or response form, or answer questions about a particular situation like:
You need to get your own professional advice about all of those types of questions. Find out where to get legal advice. In some states there is a scheme of independent duty lawyers who can provide advice on some matters. The Commission’s Unfair Dismissal Team can tell you if this is available in your state.
If you need to call the Registry you can speak to any staff member about your file – you do not need to speak to the case manager named on your paperwork.
Employers find out about an unfair dismissal claim when they receive a copy of the dismissed employee’s application from the Fair Work Commission. This is often the first time the employer is aware that the employee has made a claim against them.
An employer’s initial response can range from confusion to bewilderment, because you don’t know how this started or what you should do next.
You cannot afford to ignore this matter – it is the start of a formal legal process and won’t just 'go away'. Even if you believe you have done nothing wrong you still have to be involved in the process and present your arguments. If you do not participate a decision may still be made against you.
The Commission does not investigate unfair dismissal claims or start legal action against employers. It can only deal with claims and evidence that are brought before it.
You have received an Unfair dismissal application form because a former employee has applied to the Fair Work Commission. The employee is alleging they were unfairly dismissed by you or your company, and is asking the Commission to deal with their case.
The Commission can only deal with cases that fall within its jurisdiction. To make a claim your former employee must:
You can lodge a jurisdictional objection if you believe the dismissed employee does not fall within the Commission’s jurisdiction.
This means that you are saying the Commission does not have the power to deal with the claim. If the objection is upheld, the unfair dismissal claim will be dismissed. For more details, watch our video What is a jurisdiction hearing?
Within 7 days of receiving the employee’s application, you must respond to the Commission using the response form (Form F3) that is available from our offices and website. We also have a sample response form that may help you to complete this important document correctly.
In the response form you must include:
You must complete all sections of the response form in as much detail as possible. If you believe a question is not relevant to you then you should respond by answering 'not relevant'. You should also include copies of any relevant documents such as written warnings and letter of dismissal.
You are required to send your response documents to 2 places:
The video on this page How do employers respond to an application? explains how to respond to an employee’s application.
If the employer has raised a jurisdictional objection and wants it heard before the conciliation it will be listed for a hearing to decide if the case can proceed. If it can’t the employee’s claim will be dismissed.
The video on this page What is a jurisdiction hearing? provides more information on jurisdictional objections.
In some cases the jurisdictional objection and the merits of the unfair dismissal case may both be dealt with in a hearing or conference at the same time. If you are unsure, please contact the Commission for assistance.
You can choose to be represented at the conciliation stage, though it is not necessary. However, each party is allowed to have a representative at a conciliation conference conducted by a Conciliator without seeking permission to appear.
A representative can be a lawyer, an advocate, a union official (for employees) or industry body official (for employers) or even a friend or family member who acts as your support person. If you are using a representative it is important that their details be recorded on your application or response form. If they are not in the room with you they will join the conciliation by telephone.
If your case proceeds to a conference or hearing, you will need the permission of the Commission Member dealing with your case if you wish to be represented by a lawyer or paid agent, unless that person is:
If you decide to represent yourself in proceedings it will be easier for you if you are well prepared. You may consider bringing one or more individuals with you for support. There is generally no objection to you doing so although in a private conference you should be prepared to tell the Commission Member dealing with your case why you would like the presence of such individuals.
If you decide to represent yourself in proceedings it will be easier for you if you are well prepared.
You may find it helpful to review or complete some of the documents on our What happens at hearings & conferences page to help you prepare.