Fair Work Commission

Adjournment

To suspend or reschedule proceedings (such as a conciliation, conference or hearing) to another time or place, or indefinitely.

Appeal

An application for a Full Bench of the Fair Work 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.

Balance of probabilities

The comparison of disputed facts to determine what is more likely to have occurred.

A fact is proved to be true on the balance of probabilities if its existence is more probable than not.

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.

Conciliation

An informal method of resolving a dispute by helping the parties to reach a settlement, which may involve making observations and recommendations.

An independent conciliator can help the parties explore options for a resolution without the need for a determinative conference or hearing before a member.

Conference

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

Court

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

Decision

A determination made by a single member or Full Bench of the Commission^[3].

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.

Discontinue

To formally end a matter before the Commission.

A discontinuance can be used during proceedings to stop the proceedings or after proceedings to help finalise a settlement. Once a matter has been discontinued it cannot be restarted.

Employer or Principal

Used interchangeably in the anti-bullying provisions. These terms are not defined in the Fair Work Act 2009 other than to confirm that, for the purposes of the anti-bullying provisions, 'employer' has its ordinary meaning.

An employer is the business entity that engages an employee to do work for them. A principal is the business entity that engages a contractor to do work for them.

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 Commonwealth legislation dealing with workplace relations 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.

Hearing

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

Individual

A natural person; in the context of anti-bullying matters, this could include another worker at the workplace, a visitor or client.

Industrial association

An association of employees or independent contractors, or both, (such as a Union) or an association of employers, that is registered or recognised under a workplace law (such as the Fair Work Act).

Industrial instrument

A generic term for a legally binding industrial document which details the rights and obligations of the parties bound by the document, such as an enterprise agreement or award.

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.

Mediation

A method of dispute resolution promoting the discussion and settlement of disputes facilitated by an independent mediator.

Member

See Commission Member

Notice of Listing

A formal notification sent by the Commission setting out the time, date and location for a matter to be heard. A Notice of Listing can also include specific directions or requirements.

Order

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

Outcome

See resolution

Party

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

Pecuniary penalty

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

Person conducting a business or undertaking (PCBU)

The legal entity running the business or undertaking, including incorporated entities, sole traders, partners of a partnership and certain senior ‘officers’ of an unincorporated association.

Principal

See Employer or Principal

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.

Quash

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

Representative

A person who acts on a party’s behalf. This could be a lawyer, a paid agent, an employee or employer organisation or someone else.

Generally, a lawyer or paid agent can only represent a party before the Commission with permission of the Commission.

Resolution (or outcome)

An agreed resolution of a dispute. Generally, a negotiated outcome which all parties are satisfied with and bound by.

Respondent

A party responding to an application made to the Commission. In the case of an anti-bullying application this can be the:

• employer/principal (the business or undertaking that employs or otherwise engages the worker making the application), and
• person named (person who is accused of having engaged in bullying behaviour).

Serving documents

See service

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.

Witness

A person who gives evidence in relation to a situation that they had some involvement in or saw happening. A witness is required to take an 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.

Worker

Definition prescribed in the Work Health and Safety Act 2011 (Cth). Essentially, a broad definition of a person undertaking work who can make an application under the anti-bullying provisions. See also Definition of ‘Worker’ in Part 4 of this benchbook.