The Commission is Australia’s national workplace relations tribunal. It was established by the Fair Work Act 2009 (Fair Work Act) and is responsible for administering the provisions of the Fair Work Act.
The Commission’s powers and functions include:
- dealing with unfair dismissal claims
- dealing with anti-bullying claims
- dealing with general protections and unlawful termination claims
- setting the national minimum wage and minimum wages in modern awards
- making, reviewing and varying modern awards
- assisting the bargaining process for enterprise agreements
- approving, varying and terminating enterprise agreements
- making orders to stop or suspend industrial action
- dealing with disputes brought to the Commission under the dispute resolution procedures of modern awards and enterprise agreements
- determining applications for right of entry permits
- promoting cooperative and productive workplace relations and preventing disputes.
The Commission and General Manager also have responsibilities in relation to the registration, amalgamation and cancellation of registered organisations and the making and alteration of their rules under the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act).
The Commission’s purpose, as included in its corporate plan, and outcomes and programs as specified in the 2018–19 portfolio budget statements are set out in the Annual performance statements.
The Commission consists of the Tribunal – the President, Vice Presidents, Deputy Presidents, Commissioners and expert panel members – supported by a General Manager and administrative staff. Figure 1 shows the Commission’s structure.
Figure 1: Organisational structure as at 30 June 2019
The Commission is headed by the President, the Hon Justice Iain Ross AO, who is also a Judge of the Federal Court of Australia.
Commission Members perform quasi-judicial functions under the Fair Work Act, including conducting public hearings and private conferences for both individual and collective matters. They also perform certain functions under the Registered Organisations Act concerning federally registered unions and employer organisations.
Members are independent statutory office holders appointed by the Governor-General on the recommendation of the Australian Government. They are appointed until the age of 65 on a full-time basis, although they may perform duties on a part-time basis with the President’s approval. Members of state industrial tribunals may hold a dual appointment to the Commission. Expert panel members are appointed on a part-time basis for a specified period of not more than five years.
Members come from diverse backgrounds, including the law, unions and employer associations, human resources and corporate management, and the public service. Expert panel members must have knowledge or experience in one or more fields specific to their panel.
Members often share their expertise and engage with the community by participating in a range of presentations, speeches and events in Australia and internationally. For a list of such activities in 2018–19, see Appendix C: Members’ activities.
During 2018–19, the following Members were appointed to the Commission: Deputy President Lake, Deputy President Boyce, Deputy President Cross, Deputy President Mansini, Deputy President Young and Commissioner Yilmaz. Commissioner Saunders was promoted to the position of Deputy President.
During 2018–19, Commissioner Cribb retired.
The regional allocation system
On 1 April 2019, a new regional allocation model of allocating and managing cases commenced, replacing the industry panel system. This change reflects the changing nature of the work of the Commission, with a greater proportion of individual-type cases, and enables better oversight of the work of the Commission.
Three regions have been established, with a Regional Coordinator responsible for the management of work undertaken by Members in that region. The regions are:
- Region 1 – New South Wales, Queensland, Northern Territory and Australian Capital Territory
- Region 2 – South Australia and Western Australia
- Region 3 – Victoria and Tasmania.
National practice leaders (previously known as panel heads) have been appointed for major case types, to manage the performance of those cases across Australia, and to allocate cases in consultation with the relevant Regional Coordinator.
In most instances, cases are allocated to a Member in the region where the dispute occurs. Where a case requires specialist knowledge the case may be allocated to a Member from outside that region.
For more information on regional allocation, see Appendix B: Regional allocation.
The Commission’s General Manager is Bernadette O’Neill. The General Manager’s statutory function is to assist the President in ensuring that the Commission performs its functions and exercises its powers under the Fair Work Act. The General Manager also exercises limited functions and powers concerning federally registered unions and employer organisations under the Registered Organisations Act.
As the accountable authority, the General Manager is responsible for the Commission’s performance, financial management and compliance with requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
The General Manager is supported by Commission staff, who are employed under the Public Service Act 1999 (Public Service Act). Staff are organised into three branches, with the head of each branch, together with the General Manager, forming the Executive.
Client Services handles the majority of enquiries, both by telephone and at offices in each state and territory. Staff receive and process applications, prepare files, coordinate hearing and conference rooms, maintain the case management system, arrange and conduct conciliations and mediations, and publish documents (including decisions and orders).
Corporate Services is responsible for corporate governance and reporting, legal services, financial management and resources, internal communications, human resources and information technology.
Tribunal Services provides research, project management and administrative support to Commission Members. Tribunal Services staff support the work of Members in chambers, undertake specialist workplace relations and economic research, and assist with managing large statutory reviews, such as those concerning modern awards and the minimum wage. In addition, they perform analysis of enterprise agreements, coordinate arbitration hearings for unfair dismissal matters, provide research for individual Members, maintain a workplace relations library and provide support for the Commission’s engagement activities. Staff process right of entry permit applications and support the functions of the Tribunal and General Manager under the Registered Organisations Act.
Clients and stakeholders
The Commission’s work directly or indirectly affects most of Australia’s employees and employers and, as a consequence, the Commission has a diverse group of clients and stakeholders.
In broad terms, the Commission has jurisdiction over a national system that covers:
- all private sector employers and employees in all states and territories except Western Australia (where private sector coverage is limited to constitutional corporations)
- the Commonwealth public sector
- all employers and employees in the territories and in Victoria (with limited exceptions in relation to some state public sector employees)
- some public sector and local government employment in other states.
The Commission’s anti-bullying jurisdiction extends to a broader range of workers (in addition to employees) when they are at work in constitutionally-covered businesses.
In focus – Law Week 2019
As a part of Law Week 2019, the Commission hosted three events at the Commission’s Melbourne office. The sessions, which were also part of the Commission’s Workplace Relations Education Series, were live-streamed around Australia.
The first event – Advocacy before the Commission – was an information session delivered by Deputy President Gostencnik and Commissioner Wilson. This session assisted advocates in learning how to present their case in Commission proceedings and helped improve advocacy skills. The session included tips and insights from the two Members on how to simply and effectively explain the law and facts of a case, expose weaknesses in an opposing party’s argument and explain the evidence in context.
The second event was delivered by Commissioners Lee and McKinnon about making compliant agreement applications, given that every application needs to meet the strict requirements of the Fair Work Act. As well as providing information about making an agreement application, the session covered recent amendments to the Fair Work Act and Commission processes.
The third event focused on making and responding to unfair dismissal applications. Delivered by Deputy President Clancy and Commissioner Bissett, the session gave guidance on how to lodge an unfair dismissal application that meets the requirements of the Fair Work Act.
Participants also learnt about the requirements that both applicants and respondents need to address as part of the conciliation and arbitration processes. Members discussed the criteria used to decide if a dismissal is unfair, the requirements regarding how reinstatement or compensation is determined, and the sort of information parties need to provide.
The three events received overwhelming support from attendees. They were fully booked within days of opening, and the live streams received a large number of views from around Australia.
Survey feedback about all three events was overwhelmingly positive, with the majority of attendees rating their overall experience as a five out of five. The largest group of attendees at each session were human resources practitioners.
Some notable feedback included:
‘Thought the additional commentary from the Deputy President and Commissioner which deviated from slide content was great. They both provided their views, insights and tips and tricks which was invaluable to hear directly from them. Their presenting style was very engaging.’
‘The straight talk from the presenters, telling us exactly how it is and how the Commission works. It’s this kind of content that isn’t really available anywhere else.’
‘Information was very well and succinctly presented in an easy to understand way.’
‘The Commissioners were engaging and easy to comprehend.’
‘Great first-hand suggestion for effective agreement making and submissions – content was excellent, and the live stream was easy to access.’
‘Hearing directly from Commissioners and their perspective was invaluable.’
‘Gaining an understanding on which areas the Commission gives weight to and the process of an unfair dismissal claim. I also appreciated that the Members highlighted common issues that slow the process down.’
‘It was good to see the presentation being delivered by senior people. Very well delivered.’
The live-stream videos are available on the Commission’s website at www.fwc.gov.au.