What is the Fair Work Commission?
The Fair Work Commission – often called Fair Work for short – is Australia’s workplace relations tribunal. It creates employment awards, which are the mandated conditions all employees in that industry or occupation receive, no matter who employs them. It also approves enterprise agreements established between an employer and their employees that outlines the organisation’s employment conditions over and above mandated conditions. Furthermore, it also resolves issues between employers and employees at work if the two parties cannot resolve them.
Most, but not all, employers and employees are part of the national workplace relations system. The Fair Work Commission website has a list of those who are covered and not covered. When not covered, the relevant state industrial relations tribunal may be able to help.
The Fair Work Commission deals with many negative issues that can arise in the workplace, such as resolving sexual harassment and bullying claims, but it also offers many useful services and resources that can help employers run their businesses more smoothly.
Issues that the Fair Work Commission can help with
Fair Work Commission can help resolve disputes in the workplace across several areas, whether it is between employees or between an employee/s and the employer. It always encourages employers to try to resolve the issue themselves in the workplace, if it is safe to do so. However, if this is not possible or cannot be achieved, the matter can be taken to the Commission to resolve.
The Fair Work Commission website has online resources that can define and identify these issues:
- Bullying
- Sexual harassment
- Discrimination
For these issues, a Commission Member may arrange for a conference, mediation or hearing between the parties involved or call for respondents to make their case. They may make a decision on the dispute that all parties must adhere to or may provide advice on whether a court proceeding is likely to succeed.
The Fair Work Commission can also resolve disputes about:
- Fixed term contracts
- Casual to permanent conversion
- Terms and conditions of an award or enterprise agreement
- Flexible work and unpaid parental leave requests
In these cases, the Fair Work Commission will conduct mediation and conciliation or make a recommendation or express an opinion for the parties involved to decide if they will follow it. When the parties involved all agree to arbitration, the Commission can also make a binding decision.
The Commission also will get involved in other workplace disputes.
- Industrial action: approving a protected ballot action and publishing the result or preventing unprotected actions.
- Dismissal disputes: holding a conference between an employer and employee when an employee disputes the reason they have been dismissed or terminated.
- Labour hire arrangement order disputes: mediating, conciliating, providing a recommendation or opinion, or deciding the outcome regarding a regulated labour hire arrangement order.
Note that the Commission does not resolve problems related to pay or whether conditions have been provided by the employer. The Fair Work Ombudsman is the appropriate contact to pursue assistance in those areas. For more information, please visit the Australian government’s Fair Work Ombudsman website page.
The role of the Fair Work Commission in making decisions
In the first instance, the Fair Work Commission aims to facilitate two disputing parties to come to an agreement themselves, rather than investigating the issue and making its own decision.
However, in rare or special circumstances or when agreed to by the parties involved, it can make binding decisions. These include the power to order compensation or lost pay to be provided as well as for a person to take certain steps, such as to participate in training or change their behaviour.
It cannot instigate disputes being heard by a court or make a recommendation that a matter should be taken to court if matters still cannot be resolved. However, it can advise on the likelihood that a case may succeed in a court, to help inform parties who are considering taking this step.
Other ways the Fair Work Commission can help employers
The Commission provides free training and resources for employers to give them the skills and information to avoid seeking its assistance to resolve a dispute.
Collaborative Approaches Program
The Collaborative Approaches Program helps employers and employees gain skills to help them solve immediate issues or improve workplace processes over time. It offers an online learning portal as well as workshops and facilitation services for those who want to build cooperative relationships. Applications into the program are only accepted if more than one party agrees to participate – an employer cannot demand employees are involved and vice versa.
Small business hub
Employers with fewer than 15 staff can access an online learning portal to become informed about workplace relations processes, such as how to approach enterprise bargaining. It also has dedicated resources on regulations that only affect small businesses, such as the Small Business Fair Dismissal Code.
Approve enterprise agreements
While the Fair Work Commission does not get involved in the drafting of an enterprise agreement between employers and employees or their representatives, they do approve it. Once both parties agree to the enterprise agreement, it is presented to the Commission which assesses it to ensure that it meets the requirements under the Fair Work Act 2009 and approves it.
Employers can also apply to the Commission to terminate an enterprise agreement before or after the nominal expiry date. The Commission can also alter an existing agreement when the employer and employees agree.
Create awards
Awards are legal documents that outline minimum rates of pay for workers across different stages of their careers as well as conditions of employment. Fair Work Commission staff review awards and research changes, such as annual expense-related allowance adjustments.
As awards already outline minimum pay and conditions, employers do not have to do the work themselves to meet socially accepted minimum conditions. The employees are hired under the proviso that the award applies and the conditions stipulated in it are adhered to.
However, as pay and conditions can change annually, employers do need to stay up-to-date with changes that may affect them.
The Fair Work Commission’s role in the national minimum wage
The Fair Work Commission reviews and sets the National Minimum Wage. This is the base pay rate that adult employees who are not covered by an award or enterprise agreement must be paid by employers. Every year, an expert panel of the Commission reviews submissions made to the Wage Review. They research issues that may affect the pay rate before making its decision on the rate for the financial year ahead. It is up to employers to stay across this annual decision and ensure they abide by the national minimum wage when it comes to paying their employees.
The assistance that the Fair Work Commission offers covers a range of workplace issues and disputes, which is an invaluable service when these problems cannot be resolved within the workplace. By taking advantage of its resources and services, employers will find it is a useful tool to help overcome workplace challenges and ensure business operations can continue to run smoothly.
Related: Fair Work in Australia: A Guide for Small Businesses
