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 2019–20 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: Organisational structure as at 30 June 2020 shows the Commission’s structure.
Figure 1: Organisational structure as at 30 June 2020
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 2019–20, see Appendix B: Members’ activities.
During 2019–20, Commissioner David Gregory retired and Senior Deputy President Jonathan Hamberger resigned.
The regional allocation system
The Commission uses a regional allocation model for allocating and managing cases. There are three regions, covering each state and territory in Australia. Each region is led by a Regional Coordinator and supported by a Deputy Regional Coordinator. The Regional Coordinator is 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 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, visit fwc.gov.au.
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).
Client Services Delivery handles the majority of enquiries, both by telephone and at offices in each state and territory. Staff receive and process applications, case manage individual dispute applications prior to allocation to Members, and conduct staff conciliation conferences in unfair dismissal and general protections applications involving dismissal.
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.