The Fair Work Commission plays an essential role in Australia’s workplace relations as an independent tribunal that handles a range of employment disputes. Whether you are an employer or employee, workplace disputes can be daunting, especially if they proceed to a hearing at the Fair Work Commission. Understanding what to expect at the hearing can help you prepare and present your case effectively.
This information is general only and does not constitute legal advice. If you are involved in a workplace dispute, seek guidance from an experienced employment lawyer.
Types of Hearings
The Fair Work Commission handles various workplace disputes within the national workplace relations system. Some disputes resolve through mediation or conciliation, while others proceed to a formal hearing. Different types of disputes focus on specific issues, for example:
- Unfair dismissal claims: These hearings cover cases where an employee believes their dismissal was harsh, unjust, or unreasonable, or not a genuine redundancy. The Commission checks whether the dismissal had a valid reason and whether the employer followed procedural fairness.
- General protections arbitration hearings: Also called ‘adverse action claims’, these disputes occur when an employer allegedly takes adverse action against an employee in breach of protected rights, such as workplace rights, freedom from discrimination, or freedom of association.
- Industrial disputes: These hearings resolve conflicts related to industrial action or agreements, ensuring fair outcomes for both employers and employees.
- Stop bullying and sexual harassment orders: Employees can request orders from the Fair Work Commission to stop bullying and sexual harassment in the workplace.
The Hearing Process
Commission Members conduct Fair Work Commission hearings. Hearings follow formal processes and rules about how parties should conduct themselves. Members decide the outcome and consider the facts of each case in relation to the Fair Work Act. Members may hold titles such as Deputy President, Commissioner, or ‘Your Honour’ and receive assistance from Associates during the hearing.
Arrival and Introduction
The Associate enters the room before the hearing starts. After introductions, the parties meet the Commission Member and the other participants. The Associate can answer questions about the hearing process.
During the Hearing
Once the hearing begins, the Member directs each party to present their point of view. This includes making submissions, explaining how circumstances relate to specific awards, agreements, or provisions of the Fair Work Act, calling witnesses, and cross-examining opposing witnesses. The Member swears in witnesses when they enter the witness box.
The hearing usually follows these steps:
- Opening statements: Each party outlines their case and key issues.
- Giving evidence: Parties and witnesses provide evidence through examination-in-chief, cross-examination, and re-examination.
- Presenting documents and submissions: Present documents and written submissions to support arguments.
- Questioning witnesses: Parties question witnesses to clarify evidence and challenge opposing claims.
- Closing statements: Each party summarises their case and key points.
The Member conducts the hearing, may allow private discussions ‘off the record’, ensures respectful behaviour, and maintains efficient processes. The Member listens to evidence, asks clarifying questions, and decides whether to admit evidence.
Post-Hearing
After the hearing:
- Decision and Orders: The Member issues a decision, which may include reinstatement or compensation.
- Timeframes for decisions: Decision times vary depending on case complexity.
- Enforcement of orders: Fair Work Commission orders are legally binding. If parties do not comply, enforcement action may follow.
- Appeals: Parties may appeal under limited circumstances.
Tips for a Successful Hearing
- Be prepared and organised: Understand what to expect and prepare thoroughly to stay calm and present your case effectively. Bring all necessary information. Dress neatly, silence your phone, and avoid food or drink unless medically required.
- Gathering evidence: Collect relevant documents such as employment contracts, emails, and performance reviews. Organise them logically and chronologically for easy presentation.
- Witness preparation: Make sure witnesses understand their role and are ready to provide evidence.
- Understand rules and procedures: Familiarise yourself with the Commission’s rules on their website and follow them carefully.
- Maintain professionalism and respect: Conduct yourself professionally. Use the correct title for the Member and stand when speaking to the Member or a witness.
- Communicate clearly and concisely: Present evidence and arguments in a clear and understandable way.
- Legal representation vs. self-representation: Decide if you need legal representation. Legal advice is strongly recommended for most cases, though self-representation is possible.
Conclusion
Navigating a Fair Work Commission hearing can be daunting, and understanding the process is essential. Prepare thoroughly, present your case effectively, and follow the rules before and during the hearing to maximise your chances of a favourable outcome.
This is general information only. Obtain professional advice relevant to your circumstances. If you or someone you know needs more information or advice, call (03) 9600 2768 or email [email protected].