Fair Work Commission

Overview

See Fair Work Act 2009 ss.577, 578, 585 – 595, and 789GV

The Fair Work act sets out various requirements as to how the Fair Work Commission may proceed in dealing with a dispute about the operation of Part 6-4C of the Fair Work Act.

The Commission may, except as provided by the Fair Work Act, inform itself in relation to any matter before it in such manner as it considers appropriate.^[1]

The Commission must perform its functions and exercise its powers in a manner that:

• is fair and just
• is quick, informal and avoids unnecessary technicalities
• is open and transparent, and
• promotes harmonious and cooperative workplace relations.

In performing its functions or exercising powers in relation to a jobkeeper dispute, the Commission must take into account:

• the objects of the Fair Work Act and the objects of Part 6-4C of the Act
• equity, good conscience and the merits of the matter, and
• the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.^[2]

The Commission may deal with a dispute about the operation of Part 6-4C of the Fair Work Act by:

• mediation or conciliation (helping parties to agree on how to resolve the dispute)
• a Commission Member making a recommendation or expressing an opinion,
• arbitration by a Commission Member (making a decision and, if necessary, issuing an order).

Commission conferences, sometimes known as mediation or conciliation, are conducted in private, unless the Commission Member dealing with the matter directs that they be conducted in public. This means that members of the public are excluded from the conference.

Commission hearings must be held in public, subject to s.593(3) (see ‘confidentiality orders’).

The Commission’s process for jobkeeper disputes

The process that the Commission will normally follow when it receives an application to deal with a jobkeeper dispute is set out below.

Step 1 – Application received

Applications are received at COVID19Applications@fwc.gov.au.

Step 2 – Register

The Commission’s jobkeeper case management team registers the application and checks that the application is complete. If an application is incomplete, the jobkeeper case management team contacts the applicant about completing it.

Step 3 – Jurisdiction

The Commission’s jobkeeper case management team reviews the application and notes potential jurisdictional issues raised. All applications are then reviewed by the National Practice Leader.

If the application raises jurisdictional issues, the National Practice Leader instructs the jobkeeper case management team to contact the applicant about the jurisdictional issue. The applicant is given the opportunity to withdraw the application. If the application is not withdrawn, the application is served on the respondent and the parties are directed to make submissions. A Commission Member will make a decision about jurisdiction.

If the Commission decides it does not have jurisdiction to deal with the dispute the case will be closed.

If the Commission does have jurisdiction to deal with the dispute, a Commission Member will deal with the merits of the dispute.

Step 4 – Hearing or conference

The Commission Member will list the case for a conference or hearing by telephone or videoconference. The application documents will be served on the respondent and the respondent has the opportunity to file written material before the conference.

The Commission Member will hold a conference to give the parties the chance to resolve the dispute by mediation or conciliation. The Commission Member may also express an opinion or make a recommendation to help resolve the dispute.

If the dispute is resolved by conference the case will be closed.

If the matter is not settled, the Commission Member will issue a decision.

Chart: The Commission’s process for jobkeeper disputes

References