Fair Work Commission

About the Fair Work Commission

The Fair Work Commission is Australia’s national workplace relations tribunal.

Australia has had a national workplace relations tribunal for more than a century and it is one of the country’s oldest key institutions. Over time it has undergone many changes in jurisdiction, name, functions and structure.

Throughout its history, the Commission and its predecessors have made many decisions that have affected the lives of working Australians and their employers. The Commission recognises the importance of promoting public understanding of the role of the tribunal and of capturing and preserving its history for display and research.

The Commission is responsible for applying provisions of the Fair Work Act 2009 (the Fair Work Act) and the Fair Work (Registered Organisations) Act 2009 (the Registered Organisations Act). The Commission has powers to:

• make orders to facilitate enterprise bargaining (including orders for ballots on protected industrial action and good faith bargaining) and to deal with bargaining disputes
• make workplace determinations in certain circumstances in which enterprise bargaining parties have been unable to reach agreement
• make orders to stop or suspend industrial action
• make orders to stop workers being bullied at work
• deal with disputes about stand downs, and
• promote cooperative and productive workplace relations and prevent disputes.

Structure of the Commission

The Commission is headed by a President, who is also a Judge of the Federal Court of Australia.

Commission Members perform quasi-judicial functions under the Fair Work Act, including conducting public hearings and private conferences for both individual and collective matters. They also perform certain functions under the Registered Organisations Act, including determining applications for registration and cancellation of registration and for alterations to eligibility rules of employee and employer organisations.

Commission Members are independent, statutory office holders appointed by the Governor-General on the recommendation of the Australian Government of the day.

There are a number of different titles that may apply to Commission Members:

• President
• Vice President
• Deputy President
• Commissioner
• Expert Panel Member

Name of the tribunal

The name of the national workplace relations tribunal has changed a number of times throughout its history. For consistency, in these benchbooks it has been referred to as the Commission.

The table below outlines the name of the national workplace relations tribunal at various times.

Workplace relations legislation, regulations and rules

The following table sets out legislation dealing with workplace relations and the dates the law was in operation. The current legislation is the Fair Work Act.

The Commission and the courts

See Fair Work Act ss.563–568.

The High Court of Australia is the highest court in the Australian judicial system. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

The Federal Court of Australia is a superior court of record and has a broad jurisdiction including over all civil and criminal matters arising in the Fair Work jurisdiction. The Court also has a substantial and diverse appellate jurisdiction, including dealing with applications for judicial reviews of certain Commission decisions.

Some matters lodged with the Commission are first conciliated at the Commission. If the matter does not settle there an applicant can then apply to start proceedings in the Federal Court or the Fair Work Division of the Federal Circuit Court.

Appearing at the Commission

There are standards for the conduct of all people attending a hearing or conference at the Commission. The standards help the Commission to provide fair hearings for all parties.

Providing fair hearings involves allowing all parties to put their case forward, and to have their case determined impartially and according to law.

The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants.

When coming to the Commission:

• it is important to arrive early for the conference or hearing because proceedings begin on time
• notify the Commission staff upon arrival by approaching them in the hearing or conference room
• if delayed it is important that contact is made with the appropriate Commission staff before the hearing is due to start
• switch off mobile phone or other electronic devices in the hearing or conference room
• address the Member of the Commission by his or her title (eg Deputy President or Commissioner)
• in a hearing, stand when addressing the Member of the Commission or to question a witness, and
• bring enough copies of documents so everyone involved can have a copy (eg three copies: one to keep, one for the other party and one for the Member).

Coverage of national workplace relations laws

See s.14 of the Fair Work Act.

Only national system employees and national system employers can participate in protected industrial action under the Fair Work Act (see s.407 of the Fair Work Act).

A national system employee is an individual employed by a national system employer (s.13 of the Fair Work Act).

A national system employer is an employer covered and bound by the national workplace relations laws.

Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer.

Who is covered by national workplace relations laws?

The national workplace relations system covers:

• all employees in Victoria (with limited exceptions in relation to State public sector employees), the Northern Territory and the Australian Capital Territory
• all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands
• employees employed by private enterprise in New South Wales, Queensland, South Australia and Tasmania
• those employed by local government in Tasmania
• those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities
• those employed by the Commonwealth or a Commonwealth authority, and
• waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce.

Who does the national system include?

Case law

Case law is comprised of previous decisions made by courts and tribunals which help interpret the meaning of legislation and how it applies in a specific case. When a decision is made by a court or tribunal, that interpretation of the law may form a precedent. Decisions of the High Court of Australia are authoritative in all Australian courts and tribunals.

A precedent is a legal decision which provides guidance for future, similar cases.

An authoritative decision is one that must be followed on questions of law by lower courts and tribunals.

Referencing

Cases

The name of the case will be bolded, or linked to the original reference.

If a case has been reported then there will also be a reference to the journal the case has been reported in. For example, some of the abbreviations used are:

• ‘HCA’ for ‘High Court of Australia
• ‘FCAFC’ for a ‘Full Court of the Federal Court of Australia’
• ‘FWCFB’ for a ‘Full Bench of the Fair Work Commission’
• ‘FWA’ for  ‘Fair Work Australia’
• ‘IR’ for ‘Industrial Reports’
• ‘CLR’ for ‘Commonwealth Law Reports’

Page or paragraph numbers are included at the end of the reference, to provide a pinpoint in the document where appropriate.

If a reference is identical to the one immediately before, the term ‘ibid.’ is commonly used.

Where one case refers to another case, the term ‘citing’ is used.

Legislation and regulations

The name of the legislation or regulations will be in italics unless a shortened version is being used.

The jurisdiction of the legislation or regulations is included in brackets if the full name is cited. For example, some of the abbreviations used are:

• ‘(Cth)’ is a Commonwealth law
• ‘(ACT)’ is an Australian Capital Territory law
• ‘(NSW)’ is a New South Wales law
• ‘(NT)’ is a Northern Territory law
• ‘(Qld)’ is a Queensland law
• ‘(SA)’ is a South Australian law
• ‘(Tas)’ is a Tasmanian law
• ‘(Vic)’ is a Victorian law
• ‘(WA)’ is a Western Australian law

Section, regulation or rule numbers are included at the end of the reference to provide a pinpoint in the legislation where appropriate.

Case examples

Individual cases have been selected as examples to help users gain a better understanding of the issues covered. These cases should not be considered exhaustive.

The case examples used in this benchbook are interpretations of the decisions by Commission staff on specific issues which are addressed within the text. The case examples may not reflect all of the issues considered in the relevant decision. In the electronic version of the benchbook the original text of the decision can be accessed by clicking the link.