The Fair Work Commission plays an essential role in Australia’s workplace relations, acting as an independent tribunal that handles a range of employment disputes. Whether you are an employer or employee, being involved in a workplace dispute can be daunting, and even more so if the dispute proceeds to a hearing at the Fair Work Commission. Understanding what to expect at the hearing can help you prepare and present the best possible case.
This information is general only and does not constitute legal advice. If you are involved in a workplace dispute, we recommend seeking guidance from an experienced employment lawyer.
Types of Hearings
The Fair Work Commission handles various types of workplace disputes that occur within the national workplace relations system. While some disputes are resolved through mediation or conciliation, others proceed to a formal hearing. Different types of disputes have specific focuses, for example:
- Unfair dismissal claims: These hearings address claims where an employee has been dismissed and believes that their dismissal was harsh, unjust, or unreasonable; or not a genuine redundancy. The Commission examines whether there was a valid reason for the dismissal and if the employer followed procedural fairness.
- General protections arbitration hearings: Sometimes referred to as ‘adverse action claims’, these types of disputes occur when an employer allegedly takes adverse action against an employee in breach of an employee’s protected rights, for example, protected workplace rights, freedom from discrimination, and freedom of association. As employees are entitled to take the case to a federal court if the dispute is not resolved at conciliation, it is unusual for these types of matters to continue to arbitration in the Commission.
- Industrial disputes: These hearings resolve disputes related to industrial action or agreements and are aimed at ensuring fair and balanced outcomes for both employers and employees.
- Stop bullying and sexual harassment orders: Employees can apply to the Fair Work Commission for orders to stop bullying or sexual harassment within the workplace.
- Hearings on jurisdiction: An applicant’s standing to make an application to the Commission can be limited, for example there are qualifying periods for an employee to make an unfair dismissal claim or an application involving dismissal must be lodged within 21 days of the dismissal. If an application is filed outside of the Commission’s jurisdictional limits for that type of application, the employer is entitled to raise a jurisdictional objection. If a jurisdictional objection is raised and the matter is not resolved through mediation, the Commission will need to conduct a hearing to determine if it has jurisdiction.
The Hearing Process
Hearings at the Fair Work Commission are conducted by Commission Members. Hearings follow formal processes and have rules about how parties conduct themselves. Commission Members decide the outcome of a dispute and are responsible for considering the facts (merits) of each case and their relevance to provisions of the Fair Work Act. Members may have different titles (i.e., Deputy President, Commissioner, or ‘Your Honour’) and are assisted by Associates who help conduct the hearing.
Arrival and Introduction
Before the hearing starts, the Associate will enter the room. After the parties introduce themselves to the Associate, they will be introduced to the Commission Member and the other parties involved. The Associate can answer questions the parties may have about the process for the hearing.
During the Hearing
Once the hearing commences (is ‘in session’) each party is directed by the Member to present their point of view. This might include making submissions, explaining how the circumstances relate to a specific award, agreement, or provision of the Fair Work Act, calling witnesses to give evidence, and cross-examining witnesses for the other side. Witnesses are sworn in by the Member when they enter the witness box.
The hearing process typically unfolds as follows:
- Opening statements: Each party presents an opening statement outlining their case and the key issues.
- Giving evidence: Parties and witnesses provide evidence through examination-in-chief, cross-examination, and re-examination.
- Presenting documents and submissions: Documentary evidence and written submissions are presented to support arguments.
- Questioning witnesses: Parties can question witnesses to clarify evidence and challenge opposing claims.
- Closing statements: Each party summarises their case and reiterates key points.
The Member is responsible for conducting the hearing and may allow the parties to convene privately to discuss matters ‘off the record’. The Member will ensure the parties behave respectfully and will foster efficient processes throughout the hearing. They will listen to the evidence presented, ask questions for clarity, and determine whether evidence should be admitted.
Post-Hearing
After the hearing:
- Decision and Orders: The Member of the Fair Work Commission will issue a decision, which may include orders such as reinstatement or compensation.
- Timeframes for decisions: Decision timeframes vary depending on the complexity of the case.
- Enforcement of orders: Fair Work Commission orders are legally binding. If orders are not complied with, enforcement action can be taken.
- Appeals: Parties may have grounds for appeal in certain circumstances, for example if there was an error of law or fact in the decision. However permission to appeal is only granted if the Commission is satisfied that an appeal is in the public interest.
Tips for a Successful Hearing
- Be prepared and organised: Understanding what to expect and thoroughly preparing for a hearing can help you to remain calm and present your case in the best way possible. Ensure you bring all the information required. Dress neatly, put your mobile phone on silent, and do not bring food or drink into the hearing unless there is a medical reason to do so.
- Gathering evidence: Collect all relevant documents such as employment contracts, emails, performance reviews, and any other evidence supporting the case. Organise documents logically/chronologically for easy presentation.
- Witness preparation: If you have witnesses, ensure they understand their role and are prepared to give evidence.
- Understand the rules and procedures: Familiarise yourself with the Commission’s rules and procedures, available on their website, to ensure you comply with all requirements.
- Maintain professionalism and respect: Always conduct yourself professionally and respectfully. Use the Member’s correct title and stand when speaking to the Member or if asking a witness a question.
- Communicate clearly and concisely: Ensure your evidence and arguments are clear and easy to understand.
- Legal representation vs. self-representation: Consider whether you need legal representation. While self-representation is possible, legal advice is highly recommended for most cases.
Conclusion
Navigating a Fair Work Commission hearing can be daunting and understanding the process is essential. By preparing thoroughly, presenting your case effectively, and following the rules and processes before and during the hearing, you can best present your case to maximise the chances of a favourable outcome.
If you or someone you know wants more information or needs help or advice, please call (02) 5127 5261 or email [email protected].