The Fair Work Commission (FWC) is a tribunal that focusses on administering the Fair Work Act 2009 (Cth) (‘Act’). In practical terms, part of the FWC’s function is to approve enterprise bargaining agreements as well as to hear industrial disputes, including unfair dismissal and other workplace matters. Considering the breadth of the FWC’s areas, a run-in with the FWC is not uncommon and can affect employers, employees and contractors alike. We set out below some practical procedural tips for communicating and appearing at the FWC.

1. Refer to the Legislation

As the FWC is a tribunal, it aims to be as informal as possible. This informality means that many people dealing with the FWC may be unrepresented and do not have the assistance of a lawyer. It’s worthwhile knowing the two pieces of legislation that contain the framework of the FWC’s rules and regulations:

  • Fair Work Regulations 2009 (Cth); and
  • Fair Work Commission Rules (Cth).

If you are in doubt about any aspect of dealing with the FWC, these are a good starting point.

2. Check if There is an ‘Approved Form’

Both employers and employees can begin a matter at the FWC. The FWC have created approved forms that parties can use to lodge an application for common enquiries. Approved forms assist applicants or respondents in a matter by providing them with an idea of what information they need to collect. Matters such as unfair dismissal claims, general protections applications, unlawful terminations, industrial action applications all have prescribed forms. If there is no approved form, there is a form for all other general matters.

3. Lodge Documents Correctly

As with most tribunal or court matters, there is a prescribed way of lodging documents. You can submit documents either physically at a FWC’s office, by post, email or fax.

Email is one of the faster and simpler methods. However, you should know that there are requirements as to what details you will need to include in the covering email as well as the format of any attachments. Electronic signatures (except for statutory declarations) may satisfy the requirement for a signature.

4. Take Note Of Any Deadlines

There are very likely going to be deadlines that you will need to meet.

For example, if you are an employer that has received an unfair dismissal application, a general protections application or an unlawful termination application, you will need to respond within seven calendar days.

If you receive any notifications either from the FWC or an applicant making an application to the FWC, check to see whether there are any timelines and ensure you receive the appropriate legal advice to ensure you can respond accordingly.

5. Meet Your Service Requirements

If you are making an application and there is another party involved, you will need to inform the other party of your application. This forms your obligation to serve documents.

Similarly, service can be done by mail, email or fax, as well as by leaving the document with an individual. These service methods need to comply with the Fair Work Commission Rules (Cth).

For example, you can only serve documents in a prepaid envelope by Express Post or registered post, and you must retain any barcode in case the FWC requires proof of service.

6. Remember That Representation is Not Always Permissible

The Act sets out that the FWC will first need to grant permission for a lawyer (or paid agent) to represent an applicant or respondent in a FWC conference or hearing. However, lawyers or paid agents can still assist by, for example, preparing submissions or applications, corresponding with the Commission or by participating in a conciliation or mediation process.

For applicants or respondents unsure of where they stand and what their legal arguments may be in making or responding to a FWC application, a lawyer can still also assist with these preparation requirements.

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If you require assistance communicating or appearing in front of the FWC, get in touch with our employment lawyers on 1300 544 755.

Kristine Biason

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