Grayson, Alexandra --- "A how to guide to the Fair Work Commission" [2016] PrecedentAULA 42; (2016) 135 Precedent 14

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A HOW TO GUIDE TO THE FAIR WORK COMMISSION

By Alexandra Grayson

WHAT EXACTLY IS THE FAIR WORK COMMISSION?

Many practitioners will not darken the doors of the Fair Work Commission during their entire practising lives. And they do not know what they are missing. Despite being over one hundred years old, the Commission remains a nimble, vibrant and exciting jurisdiction in which to practise, with a broad-ranging jurisdiction. Any one decision of the Commission can affect tens of thousands of employees and businesses. This article explores the nature of the jurisdiction – and how to practise in it.

WHAT IS THE FAIR WORK COMMISSION?

The Commission has many and varied functions. For example, it:

1. establishes and maintains a system of minimum wages and employment conditions (by making equal remuneration orders, modern awards and establishing minimum pay rates though the National Minimum Wage Order);^[1]

2. assesses and approves enterprise agreements (where agreement has been reached between an employer and/or unions regarding wages and/or conditions);^[2]

3. has robust dispute resolution powers to deal with collective and individual disputes over employment conditions contained in awards and enterprise agreements (and in limited circumstances, even contracts of employment);^[3]

4. conciliates and arbitrates unfair dismissal applications and claims where an applicant alleges that they have been subjected to adverse action for a prohibited reason;^[4]

5. deals with bullying complaints where an employee argues that they have been treated unreasonably;^[5]

6. acts as the regulator of organisations that are registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (unions and employer organisations);

7. resolves disputes about union officials’ right to enter businesses and the activities they engage in while on the premises; and

8. determines when protected industrial action can be taken and when industrial action is not protected.^[6]

WHAT THE FAIR WORK COMMISSION IS NOT

1. It is not a court and it cannot determine underpayment of wages claims or whether an industrial instrument (such as an award or enterprise agreement) has been breached.

2. It is not the Fair Work Ombudsman and it does not give advice or assistance to employees or employers.

3. It cannot issue fines or penalties for breaches of the Fair Work legislation.

GETTING STARTED IN THE FAIR WORK COMMISSION – SOME PRACTICAL TIPS

Commencing an application in the Fair Work Commission is quite straightforward. The prescribed forms are available on the fwc.gov.au website. Forms can be filed at the Registry, e-filed and/or faxed. Minimal fees will likely apply.

It is important to be aware that strict time limits can apply to the making of an application to the Commission. For example, an application for unfair dismissal^[7] or an application alleging that an employee was dismissed for an unlawful reason (a dismissal-related general protections dispute) must be commenced within 21 days of the dismissal taking effect.^[8] Only in exceptional circumstances will this deadline be extended.^[9] The requirement for exceptional circumstances to exist sets a high bar for an applicant to meet.

While representative error without blame on the part of the applicant will usually constitute exceptional circumstances, this will not always be the case.

Further, the length of any delay and the prejudice caused to a respondent by any delay will only be one of the factors considered. In Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, a Full Bench upheld a decision not to grant an extension of time for an unfair dismissal application that was filed one day late by an unrepresented applicant. The original decision was made on the following basis:^[10]

‘... whilst I accept that the application lodged by the applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances. Weighing all of the matters set out in s394(3), there is nothing in the evidence before me to establish that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the applicant may lodge an unfair dismissal remedy application.’

Do lawyers need to seek leave to appear?

Lawyers and paid agents need to seek permission to appear.^[11] A party will normally be expected to appear on its own behalf.^[12] The Commission will grant permission for a person to be represented only if at least one of the following preconditions is met:

1. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

2. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

3. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Commission has, by way of example, decided to allow representation in the following circumstances:

1. Where it was unreasonable to expect a company’s HR manager to run the case while also appearing as a defence witness.^[13]

2. Where an employee was not legally represented and the employer, a relatively large employer with a dedicated human resources team, had a senior human resources employee who had had no experience before the Commission.^[14]

The Commission has declined to allow representation in the following circumstances:

1. An ASX 100 company had sufficient internal legal and HR resources to be able to represent itself in the Commission rather than rely on external lawyers, despite the applicant being represented by a union.^[15] In any event, lawyers could perform its ‘out-of-court’ preparation work.^[16]

2. Interestingly, a company that had been granted permission to have legal representation at a hearing had the permission revoked during the hearing.^[17] The reasons for revocation included that the issues in dispute in the matter were far from complex and that a grant of permission for the respondent to be represented would not enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The Commission also took into account the fact that the applicant was unrepresented and required a translator, and that the respondent could represent itself and had a legal team that had filed comprehensive material, could attend the hearing and sit at the bar table.^[18] Essentially, there was no bar on the involvement of legal representatives other than appearing as advocates in the proceedings.

Even more interestingly, when the situation changed again, the Commission reconsidered its earlier determination to revoke permission, determined that the matter had become more complex and granted permission for legal representatives to appear.^[19] This was on the basis that the matter had become ‘more difficult’.^[20]

SO WHAT DOES THE COMMISSION ACTUALLY DO?

Conciliation

Most proceedings before the Commission will be subject to conciliation as an initial step. In some matters, such as unfair dismissal applications^[21] and dismissal-related general protections disputes,^[22] this process can be done over the phone with an experienced conciliator (not a Commission member) and will usually be listed within four to six weeks of an application being filed. These conciliations will largely be aimed at identifying the issues between the parties and attempting to facilitate settlement discussions. If the parties consent, a second conciliation can be held.

Matters such as industrial disputes, bargaining disputes (where one party bargaining for an enterprise agreement seeks assistance to resolve issues with a proposed agreement),^[23] and applications alleging that an individual is being bullied,^[24] will be listed for conciliation swiftly before a Commission member. A private, without prejudice, conciliation conference will then be conducted (usually with the robust assistance of a Commission member) to see if resolution of the issues between the parties can be reached.

It is not unusual for the Commission to sit on the weekend or into the night if the urgency of the application before it or if the dispute requires it. Many nights leading up to Christmas have been spent before the Commission while it hears from interested parties about the appropriate penalty rates and opening hours for public holidays over the Christmas period.

The Commission will also attend worksites to assess the workplace and practices if requested by parties. Maurice Blackburn recently attended a worksite with the Commission and other parties at a gas line construction site in Darwin. The Commission is not scared to get its hands dirty in the resolution of disputes.

Arbitration

The Commission has the power to arbitrate many matters within its jurisdiction. These include:

1. unfair dismissal applications;^[25]

2. general protection applications which allege dismissal (where the parties consent to arbitration by the Commission);^[26]

3. disputes over the terms of an award or enterprise agreement (where the relevant instrument provides for arbitration or the parties consent to private arbitration);

4. applications to terminate industrial action under ss418 or 419 of the Act. The Commission is, as far as practicable, required to hear and determine such an application within two days (including by way of an interim order to stop the industrial action);^[27]

5. disputes over the rights of union officials to enter businesses, and what they do on the premises; and

6. disputes over bargaining for and scope of an enterprise agreement.^[28]

While the Commission is not bound by the rules of evidence and procedure,^[29] it still tends to apply the same rules of evidence as apply in a court. Proceedings (and the hearing rooms in which they are conducted) appear very similar to traditional court proceedings.

Evidence will usually be led by witness statement or affidavit and witnesses may be cross-examined. Directions will usually be made allowing for evidence in chief and submissions to be filed on behalf of the applicant and evidence and submissions to be filed on behalf of the respondent. In some circumstances, the Commission will make provision for evidence and submissions in reply to be filed on behalf of an applicant.

As part of proceedings, the Commission may inform itself in such a manner as it considers appropriate.^[30] This may include:

1. making an order that a person appear;

2. making an order that a person produce documents to the Commission;

3. conducting off-site inspections of workplaces; and

4. sitting wherever and whenever it deems appropriate.

An arbitration will (in almost all circumstances) result in the publication of a written decision.

COSTS

The rule is that a person must bear their own costs in relation to a matter before the FWC.^[31] However, in limited circumstances,^[32] a person can be ordered to bear some or all of the costs of another person if:

1. the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

2. the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

In addition, in some limited matters such as unfair dismissals and general protections applications, the Commission may make an order for costs against a party, for costs incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.^[33]

Costs can also be awarded against lawyers and paid agents.^[34] This will occur only when costs were incurred because:

1. the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

2. of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

These provisions have been used to order costs against law firms and paid agents, including in the following circumstances:

1. Where a paid agent (a firm of industrial advocates) caused costs to be incurred by the respondent due to a failure to take reasonable steps to research the relevant law and a failure to withdraw the proceedings based on a lack of legal research that could reasonably be expected of the agent.^[35] This decision was overturned on appeal based upon a differing view in relation to the substantive application’s prospects.^[36] The Full Bench did, however, confirm that ‘it is open to a member of the Tribunal, in an appropriate to case, to infer unreasonable neglect on the part of a representative by virtue of the fact that they have pursued a case that any reasonable practitioner would have recognised was doomed to failure or without reasonable prospects of success’.^[37]

2. Against a Melbourne law firm in an unsuccessful unfair dismissal case for:^[38]

• failing to determine that their client’s actions meant that his dismissal claim was doomed to fail, despite the law firm’s argument that it was entitled to rely on its client’s version of events;

• failing to investigate the employer’s detailed overpayment allegations;

• repeatedly relaying the proceedings (which it blamed on its inability to contact its client); and

• failing to make a settlement offer.

CONCLUSION

With its broad-ranging jurisdiction and extensive powers, the Fair Work Commission acts swiftly and efficiently to deal with matters relating to the employment relationship, industrial instruments and industrial organisations. As some of these cases highlight, the Commission’s approach can be flexible and involved, and parties must be prepared for this. In order to get the most out of the Commission and its processes, representatives ought to be creative about the dispute resolution they are seeking and have regard to the efficient conduct of any proceedings.

Alexandra (Alex) Grayson is a Senior Associate who manages the Employment and Industrial Relations Practice of Maurice Blackburn’s Sydney office. She has almost 20 years’ experience in industrial relations, including almost a decade as a labour lawyer. PHONE [phone] EMAIL [e-mail].

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^[1] Fair Work Act 2009 (Cth), Ch 2, including Parts 2-3, 2-6 and 2-7.

^[2] Ibid, Ch 2, Part 2-4.

^[3] Ibid, Ch 6, Part 6-2.

^[4] Ibid, Ch 3, Parts 3-2 and 3-1, respectively.

^[5] Ibid, Ch 6, Part 6-4B.

^[6] Ibid, Ch 3, Part 3-3.

^[7] Ibid, s394(2).

^[8] Ibid, s366(1).

^[9] Ibid, s366(2).

^[10] Oszoy v Monstamac Industries Pty Ltd [2014] FWC 479 at [30].

^[11] Fair Work Act 2009 (Cth), s596.

^[12] Oratis v Melbourne Business School [2014] FWCFB 3869.

^[13] Wilcox v Holcim (Australia) Pty Ltd [2016] FWC 2359.

^[14] Jeong v Alpha Flight Services Pty Ltd T/A Alpha Flight Services [2016] FWC 2778.

^[15] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

^[16] Ibid, at [19].

^[17] Barkho v Dairy Country [2015] FWC 8549.

^[18] Ibid, at [37]-[46].

^[19] Barkho v Dairy Country [2016] FWC 529.

^[20] Ibid, at [10].

^[21] Fair Work Act 2009 (Cth), Ch 3, Part 3-2.

^[22] Ibid, Part 3-1.

^[23] Ibid, s240.

^[24] Ibid, Ch 6, Part 6-4B.

^[25] Ibid, Ch 3, Part 3-2.

^[26] Ibid, s369.

^[27] Ibid, s420.

^[28] Ibid, Part 2-4, Division 8.

^[29] Ibid, s591.

^[30] Ibid, s589.

^[31] Ibid, s611(1).

^[32] Ibid, s611(2).

^[33] Ibid, ss400A, 375B and 779A.

^[34] Ibid, ss376, 400A, 401 and 780.

^[35] Setefano v ICF (Australia) Pty Ltd t/a IC Frith & Associates [2012] FWA 10682, at [62].

^[36] Livingstones Australia v ICF (Australia) Pty Ltd t/a IC Frith & Associates [2014] FWCFB 1276; (2014) 240 IR 448.

^[37] Ibid, at [89].

^[38] Alexander M Pty Ltd v Lloyd; McDonald Murholme Solicitors [2013] FWC 8795.