Being an employer in Australia, you may be aware that there are certain groups or bodies that work for the benefit of employees. One of the most important that you need to be aware of is the Fair Work Commission.
The Fair Work Commission (FWC) is Australia’s national workplace relations tribunal. It is an independent body with the power to carry out a range of functions relating to employment. As a party working for the benefit of Australia’s workforce, some if its functions include enforcing the safety net of minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, termination of employment, and a variety of other workplace matters.
While the Fair Work Commission is an independent body, its powers are statutory and after being established following the Fair Work Act 2009, it operates in a similar way to a court. For instance, it can hear claims and disputes which are related to the workplace and deliver binding decisions which must be adhered to. It may seem that the Fair Work Commission was set up purely for the benefit of employees, their primary objective and responsibility is to assist employees and employers in maintaining fair and productive workplaces.
The Fair Work Commission has a number of roles, with its responsibilities spanning a variety of spectrums in Australian workplace relations. Some of its key roles include:
• setting the national minimum wage
• creating and changing Modern Awards
• approving enterprise agreements
• acting as the independent moderator in disputes including unfair dismissal and adverse action
• resolving disputes under awards, agreements, or the National Employment Standards (NES)
On top of these, the Fair Work Commission also has the power to award determination for employees. For instance, if a dismissal is deemed to be unfair, they can determine a reinstatement of the job, or even financial compensation depending on the particular circumstance. However, for a determination of this nature to take place, an employee must lodge an application form, as well as stipulate their reasoning. They may believe they have been:
• unfairly dismissed
• discriminated against, victimised or unfairly treated under the provisions of the Fair Work Act
• bullied at work and want an order to prevent that from occurring
After the application has been completed and submitted by the employee. The Fair Work Commission will then assess the application, and send documents to the employer with the request for a response to the claims. This is the beginning of the mediation process with the next steps being dependent on the employer’s response and the severity of the claim.
Over 40% of applications made to the Fair Work Commission are related to claims of unfair dismissals. It is important to note that while many employees may consider their dismissals to be ‘unfair’, the Fair Work Commission defines an unfair dismissal as, “harsh, unjust or unreasonable”, with their assessment being the final say.
When presiding over a matter, the Fair Work Commission does not only assess the question of fairness as to why the employee was dismissed, but they also look into how they were dismissed. What this means is that even though an employer may have a legitimate reason to dismiss their employee, if the dismissal itself was not procedurally fair, it may still be deemed to be “harsh, unjust, or unreasonable”.
When considering procedural fairness, the Fair Work Commission will make its determination based on three key factors:
As an employer, you should know that when the Fair Work Commission assesses issues of unfair dismissal, it is expected that employers are able to demonstrate that they have taken all reasonable actions to resolve the issue prior to ending the employment.
In the interest of promoting positive relations between employee and employer, the Fair Work Commission also provides the opportunity for the two parties to have an informal conciliation before the case is listed for hearing. This is so that both sides have the chance at coming to an agreed settlement without the need for a court hearing. That being said, the conciliation is hosted by an independent conciliator who is part of the Fair Work Commission. They do not represent or advocate for either employees or employers, with their role only to assist the two in reaching an agreement.
While the conciliator will be an independent party to the discussions, they do play an active role in ensuring the proceedings occur in the most beneficial fashion for all involved. Specifically, the role of the conciliator is to:
If the conciliation process is unsuccessful in resolving the issue, then the case will be heard by the Fair Work Commission – similar to a court hearing. It is often preferable for both parties that any unfair dismissal issues be resolved prior to a hearing as the process requires extensive preparation and requires representation for both parties.