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 2020–21 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 at 30 June 2021 shows the Commission’s structure.
Figure 1: Organisational structure at 30 June 2021
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 fulltime 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 2020–21, see Appendix B: Members’ activities.
During 2020–21, Deputy President Anna Booth and Deputy President Peter Sams retired.
The regional allocation system
The Commission uses a regional allocation model for allocating and managing cases. 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.
In 2020–21, following a review, the President of the Commission made a number of changes to the model, including reducing the number of regions from three to two. From 5 July 2021 the regions are:
Region 1 – New South Wales, Queensland, Northern Territory, Australian Capital Territory and Western Australia
Region 2 – Victoria, South Australia 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 in which the parties are located. Where a case requires specialist knowledge, the case may be allocated to a Member from outside that region.
Bernadette O’Neill resigned as General Manager of the Commission following her appointment as a Commissioner on 6 April 2021. The Commission’s Acting General Manager is Murray Furlong. 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.
In 2021 the Commission implemented a new organisational structure, which will ensure that it is well placed to meet the evolving needs of the community and to build its digital and data capabilities. Following extensive consultation, on 15 March 2021 the Commission adopted the following structure:
Client Services Delivery Branch 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 conciliation conferences in unfair dismissal and general protections applications involving dismissal.
Enabling Services Branch provides business support such as financial management and resources, human resources and information technology, as well as corporate governance, reporting, legal services, information and communications. The Commission’s Data Management and Digital Transformation teams work to improve and implement the Commission’s digital access to justice initiatives. This branch also includes staff who process right of entry permit applications and support the functions of the Tribunal and General Manager under the Registered Organisations Act.
Tribunal Support Branch provides research and administrative support to Commission Members. Staff support the work of Members in chambers, undertake specialist workplace relations and economic research, assist with managing large statutory reviews, such as those concerning modern awards and the minimum wage, and perform analysis of enterprise agreements.
Clients and stakeholders
The Commission has a diverse group of clients and stakeholders. The Commission works closely with organisations, groups, private enterprises and other stakeholders to ensure that its services evolve in line with the changing needs of the Australian community that it serves.
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.
To support the implementation of cross-portfolio initiatives and the operation of the workplace relations framework, the Commission regularly shares data and information with the Fair Work Ombudsman, the Australian Building and Construction Commission, the Registered Organisations Commission and the Attorney- General’s Department.
The Workplace Advice Service is an important contributor to the Commission’s efforts to provide access to justice. Through a network of partner organisations, the Commission facilitates the Service to provide free legal assistance for unfair dismissal, general protections and workplace bullying matters.
The Commission also initiated and chairs the Australian Online Hearings Practice Group (AOHPG), a group of Australian justice institutions formed to share and advance best practice in remote hearing practice and technology.
Other important stakeholder engagement activities include:
engagement with payroll software vendors, payroll compliance advisors and peak bodies including Digital Service Providers Australia and New Zealand (DSPANZ) in relation to the Modern Awards Pay Database
the Commission’s user groups including the Small Business User Group, Enterprise Agreements User Group and the Termination of Employment User Group
user research and testing with individuals, small businesses and other organisations to inform the design and delivery of Commission projects and services.