Inside the Fair Work Commission: How it Operates

Most employers and employees are likely have at least some contact with the Fair Work Commission (FWC) during their working lives.

This might be as simple as obtaining information about award conditions and employee rights, or as contentious as appearing before the FWC in a workplace dispute or unfair dismissal matter.

So how does the Fair Work Commission work?

The basics of the fwc

The FWC is the national workplace relations tribunal. Created by the Federal Government, it is an independent body that oversees a range of employment-related matters.

Its members are independent office holders who are appointed by the Governor-General on the recommendation of the Federal Government. Members work in a panel system, which aims to ensure that matters are heard by members with specific expertise in the relevant area.

The FWC is not to be confused with the Fair Work Ombudsman, whose role it is to enforce compliance with the Fair Work Act and associated legislation, as well as provide advice to employers and employees on industrial relations matters. Unlike the FWC, the Ombudsman cannot conduct investigations or hearings.

what matters does the fwc deal with?

The FWC has the right to make decisions on a wide range of employment issues, including:

• Determining minimum wage and working conditions
• Hearing disputes in relation to unfair dismissals or other disciplinary actions
• Making decisions in relation to appropriate industrial action
• Conducting and facilitating alternative resolution methods in relation to general workplace disputes and workplace protections

When making decisions, the FWC is required to take into account factors such as:

• The principles of equity and good conscience
• An assessment of the merits of the case before it
• Avoiding any type of discrimination in the workplace, whether that be sexual, religious, disability or age based, to name a few

how to get a matter heard before the fwc

In order for a matter to be heard by the FWC, an appropriate form needs to be submitted in accordance with the applicable Fair Work Commission Rules.

In certain circumstances, such as when conducting reviews into awards or wage reviews, the FWC is empowered to launch its own action.

fairness a key focus of hearings

The FWC is obliged by legislation to facilitate reasonably swift actions, and operate informally – without resorting to complicated legal concepts which could make it difficult for the ordinary worker to participate in proceedings.

One of the central tenets of the FWC requires that hearings be conducted impartially and fairly. During hearings, the members are required to determine the facts and make decisions based on the information put before them. Ultimately, the main purpose of a hearing is to facilitate dispute resolution between the parties.

Can the FWC dismiss an application?

An application may be dismissed outright by the FWC in circumstances where it is:

• Frivolous or vexatious
• Contrary to the applicable legislation
• Doomed to fail
• Clear that one of the parties has unreasonably failed to attend hearings or comply with orders or directions of the FWC.

What the FWC can’t do

Despite being a quasi-legal body, the FWC is not entitled to provide legal advice, or assistance.

It is also not permitted to act in a partisan fashion by representing any particular political party. It must focus on impartial and objective decision making.

Do you need assistance in dealing with the FWC?

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct across government, education, not-for-profit and private sectors.

We are proud that none of our decisions have been challenged by the FWC. If you are looking for assistance to navigate the challenging issues of workplace misconduct, we provide investigation services and training – Contact WISE today.