Fair Work Commission

Introduction

A conference is generally an informal proceeding conducted by a Member of the Fair Work Commission or by a staff conciliator. Conferences generally involve the Commission Member assisting parties to discuss and resolve issues by conciliation or mediation that do not involve more formal procedures such as testing evidence under oath.

A hearing is a more formal proceeding held by Members of the Commission who have a range of powers under the Fair Work Act 2009 to decide certain issues and make decisions about disputes. Hearings are more 'court-like' and can involve sworn submissions of evidence, witness examination, exhibits etc.

Hearing & conference locations

The Commission generally conducts hearings and conferences from Monday to Friday at its premises in each Australian capital city. Hearings and conferences are also convened in regional areas. The Commission also conducts a large number of conferences by phone and video conference.

If required, proceedings may be held outside of normal office hours, on weekends and public holidays, in regional centres, or in a workplace. Many conferences are held by phone or video conference to make it easier for parties to attend. Disputes about unfair dismissal and general protections involving dismissal are generally conducted by phone conference in the first instance.

Room locations for most cases being heard the next working day are published on our website late on the previous day. Details of cases not listed on our website will, where appropriate, be available at the Commission office on the day. Arrangements for all hearings and conferences including phone, video and regional-based proceedings are provided in a 'notice of listing', which is the information sent to the parties about the hearing or conference.

Some cases heard at the Commission are held in private and members of the public are not permitted to attend.

Do I have to be represented by someone?

There is no requirement for you to be represented by another person when you appear in proceedings at the Commission. 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:

• one of your employees or officers (if you are an employer)
• employed by a union or employer organisation, a peak union or peak employer body, or
• a bargaining representative.

If you decide to represent yourself in proceedings it will be easier if you are well prepared. You may consider bringing one or more people with you for support. There is generally no objection to you doing so, although in private conferences you should be prepared to tell the Commission Member or staff conciliator dealing with your case why you would like the presence of such people.

Interpreters

There is no cost to you if you need an interpreter at a Commission hearing or conference, but you must ask the Commission to provide an interpreter either:

• when lodging your application, or
• before the day of the conference or hearing.

Finding your way to a hearing or conference

Before you attend a conference or hearing at the Commission you should check the hearings and conferences list for your state or territory.

The list identifies most of the matters listed for a particular day, together with the Commission Members dealing with them, the times of the hearings and conferences and the location details – the floor and the hearing room number. Details of cases not listed on our website will be available at the Commission office on the day.

The list is published in some capital city newspapers and on the Commission’s website each day. Printed copies of the list can also be found at Commission public counters, near the hearing rooms or, in some Commission premises, on the building's ground floor.

If your hearing or conference is in a regional courthouse you may have to ask for information at their enquiry counter.

Some cases heard at the Commission are held in private and members of the public are not permitted to attend.

Use of mobile devices

The following rules relate to the acceptable use of mobile devices during Commission conferences and hearings.

Mobile devices can include mobile phones, smart phones and tablets.

1. Mobile devices may be used during Commission conferences and hearings at the discretion of the Member.
2. Mobile devices must be on silent in all hearing and conference rooms as well as in the general waiting areas.
3. The recording of any video or audio files or the taking of photographs during proceedings is strictly prohibited.

How public hearings are conducted

Commission hearings are held in public in most circumstances, though there are some exceptions (see section 593(3) of the Act). Members of the Commission are responsible for making sure that proceedings are fair and that parties are treated with courtesy and respect. During proceedings, Members have a responsibility to:

• listen to evidence
• ask questions to clarify points that are unclear and to obtain information that is relevant to the considerations which the Member must take into account
• manage the behaviour of advocates to ensure that all parties are treated with courtesy and respect
• exclude irrelevant information
• discourage repetition, and
• deal with each matter on its merits, in accordance with the relevant provisions of the Act.

An important part of providing a fair hearing is the duty to provide appropriate help to parties in the presentation of their case, in particular self-represented parties. This means that in some circumstances a Member has to intervene, both for the benefit of a self-represented party and more generally.

The help provided to self-represented parties by a Member may, depending on the circumstances, include:

• explaining the relevant laws
• working out which issues are central to the particular proceedings
• helping a party to work within procedural and evidentiary rules designed to avoid unfairness
• helping a party understand the relative weight given to bar table statements compared to sworn evidence
• offering a party an interpreter where it appears that this may help
• making sure there is a fair, just and quick determination of the matter, and
• adjourning (or delaying) a proceeding where it would be unfair to proceed.

Despite this obligation, the help a Member can properly give to a self-represented party is limited. The Member must balance the interests of the parties who represent themselves with the need to:

• give procedural fairness to other parties
• make sure that proceedings are conducted efficiently and costs are kept to a minimum, and
• make sure that proceedings are conducted impartially and can be seen to be impartial.

All parties have the right to a fair and efficient hearing.

What happens during a hearing

During a hearing the parties will each be given the opportunity to put their point of view forward. It is important to be prepared.

• If you are providing documents in support of your position bring enough copies for everybody involved, including the Member. Supporting documents could include copies of relevant pay slips, correspondence (including emails, letters and text messages), or extracts of the relevant workplace law, award or enterprise agreement.
• Where there are contested facts it may be appropriate to bring witness statements from relevant people. It may also be necessary to have witnesses give oral evidence so that they will have the opportunity to explain the matters in their statement. Each party will be given the opportunity to question witnesses. Witnesses give oral evidence under oath or affirmation.
• During a hearing a Member may allow the parties to go into a conference. This is an opportunity for more informal discussions to take place and is generally off the record.
• If, at the end of proceedings you are not sure of the outcome or any direction given during proceedings, you can contact the Member’s associate to confirm. The associate can also provide information on how to get a copy of the transcript of the proceeding if appropriate.

Most proceedings, except for conferences, are recorded and the recordings may be transcribed. Parties may request an audio file of the recording to be provided to them, or may buy a copy of the transcript.

Transcript & audio recordings

Commission hearings are audio recorded, and many hearings are transcribed.

Transcripts that are publicly available can be found in the Transcripts section of the Commission's website. Requests for transcript of proceedings that are not published on our website may be made to the Commission. A fee applies for this service and is to be paid by the person making the request.

As part of the Commission’s Future Directions initiatives, parties to a matter (or their nominated representative) may request access to an audio recording of the proceedings. For more information see the Access to audio recordings of Commission hearings page on our website.

An audio recording of a Commission hearing does not constitute an official record of the proceedings.