Fair Work Commission

AEC

The Australian Electoral Commission

alternative ballot agent

The Commission may decide that a person other than the AEC is to be the ballot agent for a protected action ballot.

appeal

An application for a Full Bench of the Commission to review a decision of a single member of the Commission and determine if the decision was correct.

A person must seek the permission of the Commission to appeal a decision.

applicant

A person who makes an application to the Commission.

application

The way of starting a case before the Commission. An application can only be made using a form prescribed by the Fair Work Commission Rules 2013 (Cth).

arbitration

The process by which a member of the Commission will hear evidence, consider submissions and then make a decision in a matter.

Arbitration generally occurs in a formal hearing and generally involves the examination and cross-examination of witnesses.

ballot agent

A person nominated to conduct a protected action ballot.

The AEC is the default ballot agent unless the Commission specifies another person in the protected action ballot order as the protected action ballot agent.

bargaining

Bargaining is the process whereby the parties to a proposed enterprise agreement negotiate the coverage, terms and conditions of that agreement.

bargaining representative

A bargaining representative is a person nominated to participate in bargaining for a proposed enterprise agreement.

A bargaining representative can be an employer or an employee, or a union or industrial association.

A union is the default bargaining representative for an employee if:

• the employee is a member of the union, and
• the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

However, the union will not be the employee's bargaining representative if the employee:

• revokes the status of the union as his or her bargaining representative, or
• appoints another person, or appoints himself or herself, as bargaining representative for the agreement.^[1]

civil remedy provision

A provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the person who contravened the provision of the Act, or any other order the Court considers appropriate such as an injunction.

Commission Member

Someone appointed by the Governor-General as a Member of the Commission. A member may be a Commissioner, a Deputy President, a Vice President or the President.

conference

A proceeding conducted by a Commission Member which is generally held in private.

constitutional corporation

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.^[2]

contravention

An act that violates or goes against a law or order of a court.

Court

In this benchbook, a reference to ‘Court’ generally means the Federal Court or Federal Circuit Court.

day

What is a day?

Understanding what constitutes a ‘day’ is important regarding any legal process with requirements to meet specific timelines.

Section 36(1) of the Acts Interpretation Act 1901 (Cth)^[3] deals with the manner in which time is to be considered in interpreting the Fair Work Act. It reads:

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

This means that when calculating time you do not count the day on which the relevant act or event occurs or occurred.^[4]

decision

A determination made by a single member or Full Bench of the Commission. The General Manager of the Commission, or a member of staff delegated powers under s.625 or s.671 of the Fair Work Act may also make a decision.

A decision in relation to a matter before the Commission will generally include the names of the parties and outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter.

demarcation dispute

A demarcation dispute is a dispute between two or more organisations, or within an organisation, as to the rights, status, or functions of members in relation to the employment of those members. It includes a dispute about the representation of the industrial interest of employees by a union.^[5]

employee organisation

See union

employer organisation

An organisation which represents the interests of employers which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

enterprise agreement

An enterprise agreement is an agreement made at the enterprise level and enforceable under legislation which sets out terms and conditions of employment of employees and their employer (or employers).

An enterprise agreement sets out rights and obligations of the employees and the employer(s) covered by the agreement.

An enterprise agreement must meet a number of requirements under the Fair Work Act before it can be approved by the Commission.

error of law

An error of law is a common ground for legal review. It occurs when a Member of the Commission has misunderstood or misapplied a principle of law; for example, by applying the wrong criteria, or asking the wrong question.

evidence

Information which tends to prove or disprove the existence of a particular belief, fact or proposition.

Certain evidence may or may not be accepted by the Commission, however the Commission is not bound by the rules of evidence.

Evidence is usually set out in an affidavit or given orally by a witness in a hearing.

Explanatory Memorandum

An Explanatory Memorandum is a document that provides additional information about how proposed legislation is expected to operate and details about individual sections and provisions of that legislation.

Fair Work Act

The Fair Work Act 2009 (Cth) is the legislation that covers workplace relations laws in Australia.

first instance

A decision (or action) which can be considered the first decision (or action) to be made in relation to a matter.

Full Bench

A Full Bench of the Commission comprises at least three 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.

A Full Bench can give a collective judgment if all of its members agree, or independent judgments if the members’ opinions differ.

Greenfields agreement

An agreement relating to a genuine new enterprise (including a new business, activity, project or undertaking) which is made at a time where the employer or employers have not employed any of the persons who will be necessary for the normal conduct of the enterprise and who will be covered by the agreement.

hearing

A proceeding or arbitration conducted before the Commission which is generally open to the public.

independent advisor

A person who can give an alternative ballot agent advice and recommendations directed towards ensuring that the ballot will be fair and democratic.

injunction

An injunction is a legal remedy imposed by a court and requires a person to do a specific thing or more commonly to refrain from beginning or continuing a specific action.

jurisdiction

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 specified in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.

lodge

The act of delivering an application or other document to the Commission.

matter

Cases at the Commission are referred to as matters.

Member

See Commission Member

Minister

The Federal Minister for Employment.

National Employment Standards

Minimum standards that apply to the employment of all national system employees. They are set out in Part 2–2 of the Fair Work Act and relate to:

• maximum weekly hours
• requests for flexible working arrangements
• parental leave and related entitlements
• annual leave
• personal/carer’s leave and compassionate leave
• community service leave
• long service leave
• public holidays
• notice of termination and redundancy pay, and
• the Fair Work Information Statement

nominal expiry date

The date specified in an enterprise agreement which indicates the period of time that the parties intended the agreement to operate.

The date specified in an enterprise agreement which indicates the period of time that the parties intended the agreement to operate.

An enterprise agreement has continuing operation, and continues to apply even after it has passed its nominal expiry date.

order

A formal direction made by the Commission which gives effect to a decision and is legally enforceable.

organisation

See union or employer organisation

party

A person or organisation involved in a matter before the Commission.

pattern bargaining

Pattern bargaining is a course of conduct by a person who is a negotiating party to two or more proposed enterprise agreements, seeking common wages or conditions for two or more of those agreements, where the conduct extends beyond a single business.

pecuniary penalty

An order to pay a sum of money which is made by a court as a punishment.

procedural fairness

Procedural fairness requires that a person whose interests will be affected by a decision receives a fair and reasonable opportunity to be heard before the decision is made.

Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.

The terms ‘procedural fairness’ and ‘natural justice’ have similar meaning and can be used interchangeably.

proposed enterprise agreement

An enterprise agreement which has not been 'made' by a vote of employees.

protected action ballot

A secret ballot allowing employees directly concerned to vote on whether or not they authorise industrial action to advance the claims for their proposed enterprise agreement.

quash

To set aside or reject a decision or order, so that it has no legal effect.

respondent

A party responding to an application made to the Commission.

service (serve)

Service of a document means delivering the document to another party or their representative, usually within a specified period.

Documents can be served in a number of ways. The acceptable ways in which documents can be served are specified in Parts 7 and 8 of the Fair Work Commission Rules 2013.

serving documents

See service

Transitional Act

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

union

An organisation which represents the interests of employees which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

A union can also be referred to as an employee organisation.

workplace determination

TThe terms and conditions of employment determined by a Full Bench of the Commission.

The Commission can make:

• low-paid workplace determinations
• industrial action related workplace determinations, and
• bargaining related workplace determinations.

An industrial action related workplace determination must be made where protected industrial action has been terminated by the Commission or the Minister and the bargaining representatives have not settled all of the matters at issue during the post-industrial action negotiating period.^[6]

A workplace determination includes a nominal expiry date set by the Commission.