Fair Work Commission

Adjournment

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

Affidavit

A sworn statement of fact which is made under oath before an authorised official.

An affidavit is used to give evidence in Commission (or court) proceedings.

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.

Balance of probabilities

It is 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.

Collateral purpose

A proceeding is brought for a collateral purpose when its purpose is other than to seek an adjudication of the issues to which the application gives, such as to harass or embarrass the other party or to seek some other extraneous advantage.

Compensation

A requirement to pay money to an applicant as reimbursement for loss suffered as a consequence of an action.

The Commission must consider whether reinstatement is appropriate before considering if compensation should be ordered and, if so, how much.

Commission member

See member

Conciliation

An informal method of resolving an unfair dismissal application by helping the parties to reach a settlement.

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

Conciliation is usually the first step taken in the resolution of an unfair dismissal claim.

Conference

A generally private proceeding conducted by a Commission member.

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 which is legally enforceable.

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.

Directions

Instructions given by the Commission to the parties involved in a matter that contain important timeframes for the lodgment of documents in support of the case.

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.

Employee organisation

See union

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 a witness statement, an affidavit or given orally by a witness in a hearing.

Fair Work Act

Fair Work Act 2009 (Cth).

Fair Work Regulations

Fair Work Regulations 2009 (Cth).

First instance

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

Fixed term contract

An employment contract where the time of commencement and the time of completion are unambiguously identified by a term of the contract.

This can be achieved by stating definite dates, or by stating the time or condition (such as a specific task) by which one or other end of the period time is fixed, and by stating the duration of the contract of employment.

An employer does not terminate an employee's employment when the term of employment expires; rather, employment comes to an end by agreement or by the operation of law.

Full Bench

A Full Bench of the Commission comprises at least three Commission members, one of whom must be a presidential member. 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.

Frustrated (Contract)

When the terms or obligations of a contract cannot be fulfilled due to unforeseen circumstances where the parties are without fault.

Examples include the destruction of the employer’s plant or equipment; to the illness or incapacity of the employee.

A contract which is found to have been frustrated is considered terminated at the time of the frustration.

Hearing

A generally public proceeding or arbitration conducted before a Commission member.

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.

Member

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

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.

Outer limit contract

An employment contract which has a fixed term, ending upon a given date or at the end of a defined period of time or upon the completion of a specified task, but which contains a broad and unqualified power to terminate the contract within its fixed term.

Outline of submissions

A written document that clearly sets out the matters which support a case before the Commission.

This could be the grounds on which an employee claims their dismissal was unfair, or on which an employer claims that the dismissal was fair. This document should include how the specific facts of the case address unfair dismissal law, as set out in decisions of the Commission and in the legislation.

All facts, information and evidence that you wish to bring to the attention of the Commission should be included in the outline of submissions.

Party (Parties)

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.

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.

Referred state

States that have referred some (or all) of their workplace relations powers to the Commonwealth.

All states except Western Australia have referred these powers.

Reinstatement

To return an employee to the job they previously held before they were dismissed. If the original position is not available the employee should be returned to a position as close as possible in remuneration and status to the original position.

Remedy

The possible outcomes of a matter before the Commission.

This could include an order for reinstatement or compensation made by the Commission.

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.

Repudiation (Contract)

To terminate or reject a contract as having no authority or binding effect.

Respondent

A party responding to an application made to the Commission.

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.

Settlement

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

Sham contract

When an employer deliberately disguises an employment relationship as an independent contracting arrangement, instead of engaging the worker as an employee.

It can also occur when employees are pressured to become independent contractors, where they are threatened with being dismissed, or are misled about the effect of changing their working arrangements.

Small Business Fair Dismissal Code

A code declared by the Minister for Education, Employment and Workplace Relations for small businesses to follow when dismissing an employee so the dismissal is deemed fair.

Statutory declaration

A written statement in a prescribed form in which a person declares something to be true.

Such a statement is declared before, and witnessed by, an authorised official (such as a justice of the peace) but is not sworn on oath.

Subclass 457 Visa

A visa for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis—up to 4 years.

A business can sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill specific types of skilled position.

Submissions

See outline of submissions

Summary dismissal

Where an employer dismisses an employee without notice (or payment in lieu of notice)—instant dismissal.

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.

Untenable

If something is untenable it cannot be defended; it is incapable of being maintained against argument.

Waiver

An applicant can request that the application fee for lodging an unfair dismissal application be waived due to serious financial hardship. A copy of the Application for Waiver of application fee form can be found on the Commission’s website.

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 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.

Witness statement

A written statement that is usually in the form of a sworn or affirmed affidavit or statutory declaration. The witness statement should detail the information that the witness will rely on during the hearing.