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:
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:
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.
Name | Short title | Dates |
---|---|---|
Fair Work Commission |
The Commission |
1 January 2013–ongoing |
Fair Work Australia |
FWA |
1 July 2009–31 December 2012 |
Australian Industrial Relations Commission |
AIRC, the Commission |
1989–2009 |
Australian Conciliation and Arbitration Commission |
The Commission |
1973–1989 |
Commonwealth Conciliation and Arbitration Commission |
The Commission |
1956–1973 |
Commonwealth Court of Conciliation and Arbitration |
|
1904–1956 |
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.
Name of legislation | Operative dates |
---|---|
Work Health and Safety Act 2011 (Cth) |
1 January 2012 |
Fair Work Act 2009 (Cth) |
1 July 2009 and 1 January 2010 |
Workplace Relations Act 1996 (Cth) (incorporating the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)) |
27 March 2006 |
Workplace Relations Act 1996 (Cth) |
25 November 1996 |
Industrial Relations Act 1988 (Cth) |
1 March 1989 |
1 July 2009 and 1 January 2010 |
|
6 December 2013 |
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.
High Court of Australia
Federal Court of Australia
Federal Circuit Court of Australia
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:
Go to Conduct & behaviour
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.
The national workplace relations system covers:
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.
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:
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.
Item | Example |
---|---|
Case names |
Elgammal v BlackRange Wealth Management Pty Ltd Visscher v The Honourable President Justice Giudice |
Link to case |
[2011] FWAFB 4038 (Harrison SDP, Richards SDP, Williams C, 30 June 2007) [2009] HCA 34 (2 September 2009), [(2009) 239 CLR 361] |
Paragraph number |
[2008] AIRCFB 1088 … at para. 22. |
Page number |
(1995) 185 CLR 410 at p. 427 |
Identical reference |
[42]Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) at para. 81, [(2009) 239 CLR 361]. [43] ibid. |
Reference to other case |
[44]Searle v Moly Mines Limited [2008] AIRCFB 1088 (Giudice J, O’Callaghan SDP, Cribb C, 29 July 2008) at para. 22; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at para. 23. |
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:
Section, regulation or rule numbers are included at the end of the reference to provide a pinpoint in the legislation where appropriate.
Item | Example |
---|---|
Legislation or regulation name |
Acts Interpretation Act 1901 Fair Work Act Fair Work Regulations Industrial Relations (Commonwealth Powers) Act 2009 |
Jurisdiction |
Acts Interpretation Act 1901 (Cth) Police Administration Act (NT) Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) |
Section number |
Acts Interpretation Act 1901 (Cth) s.36(2) Fair Work Act s.381(2) Fair Work Regulations reg 6.08(3) |
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.