Fair Work Australia

16.15 Part 5–1 of the Fair Work Act establishes FWA as the national independent workplace relations tribunal. FWA is an independent statutory agency, with both administrative and judicial roles, carried out by separate divisions. It commenced operation on 1 July 2009, assuming the functions of the Australian Industrial Relations Commission, the Australian Industrial Registry, the Australian Fair Pay Commission and some functions of the Workplace Authority.[11]

16.16 FWA has functions conferred by s 576 of the Fair Work Act,including in relation to: the NES; modern awards; enterprise agreements; and general protections. Decisions of FWA (other than decisions of the Full Bench or the Minimum Wage Panel) can be appealed upon application to FWA, with leave from the Full Bench.[12]

16.17 Under s 577 of the Fair Work Act, FWA is required to perform its functions and powers in a manner which

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Options for reform

16.18 The ALRC considers that there are a number of specific reforms which would ensure FWA members and processes are better able to respond to the needs of those experiencing family violence. These relate to waiver of application fees, time limits for making applications and the general conduct of matters. Broader consideration of systemic reform to the role or powers of FWA is beyond the scope of the Terms of Reference for this Inquiry.

Waiver of application fees

16.19 In order to lodge an application with FWA under the unfair dismissal provisions, general protections or temporary absence provisions, applicants are currently required to pay an application fee.[13] Where applicants are experiencing financial hardship, the fee may act as a disincentive to lodge an application.[14] Family violence may be the cause of financial hardship—for example, where the family violence affects an applicant’s access or control over his or her income or partner’s income.

16.20 The Fair Work Regulations provide that an application fee may be waived if FWA is satisfied that the person making the application will suffer ‘serious hardship’ if they are required to pay the fee.[15] Stakeholders have emphasised that while FWA has discretion to waive the fee, there are instances in which ‘community legal centres have been unable to obtain a fee waiver for welfare-dependent clients with no realisable assets’. [16]

16.21 In order to apply for a waiver, an applicant must complete a ‘Waiver of Application Fee’ form. The ALRC suggests that this form could be amended to provide a separate space for people to respond to a question about the impact of family violence on the applicant’s ability to pay the fee.[17] In addition, the ALRC recommends that FWA members and other relevant personnel undertake training, including in relation to the potential effect of family violence on an applicant’s financial circumstances.

Time limits for making an application

16.22 An application for unfair dismissal must be lodged with FWA within 14 days of the dismissal.[18] The Explanatory Memorandum to the Fair Work Bill indicates that the aim of the reduced application time is to ‘promote quick resolution of claims and increase the feasibility of reinstatement as an option’.[19]

16.23 The 14-day time limit within which an application for unfair dismissal must be lodged, except in ‘exceptional circumstances’, may be particularly onerous for people experiencing family violence:

FWA has taken a strict approach in defining the circumstances in which an out of time application may be accepted, leaving many applicants without a remedy under the Act. In instances where victims of family violence are also dealing with other legal proceedings and under intense emotional strain, 14 days is unlikely to be enough time to seek legal advice and make an application.[20]

16.24 However FWA may grant a further period within which to make an application if satisfied that there are ‘exceptional circumstances’,[21] taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.[22]

16.25 FWA’s power to allow a further period for application in ‘exceptional circumstances’ may provide a mechanism through which victims of family violence may be granted additional time to make an application. However, to the extent that FWA takes a strict approach, as suggested by some stakeholders,[23] the ALRC suggests that appropriate training of FWA members may assist to ensure that, where appropriate, family violence is considered in determining whether ‘exceptional circumstances’ exist.

Conduct of matters

16.26 FWA has a range of powers under the Fair Work Act with respect to determining the conduct of conferences and hearings as well as in relation to restricting the publication of confidential evidence.[24] Stakeholders have emphasised that FWA’s use of such powers to ‘issue orders regarding privacy and restricted presence at hearings and conferences as well as suppression of publication of personal details, evidence and documents may assist in encouraging and supporting victims of family violence to pursue matters’ in FWA.[25]

16.27 The ALRC understands that FWA members are involved in ongoing professional development, both internally and externally.[26] The ALRC recommends that Fair Work Australia should review its processes, and members and other relevant personnel should be provided with training, to ensure that the existence of family violence is appropriately and adequately considered at relevant times in the conduct of matters. This would include in deciding whether:

  • the applicant would suffer ‘serious hardship’ if they were required to pay an application fee;
  • there are ‘exceptional circumstances’ under s 394(3) of the Fair Work Act that would warrant the granting of a further period within which to make an application for unfair dismissal;
  • to make orders in relation to a hearing under s 593 of the Fair Work Act; and
  • to make orders restricting the publication of confidential evidence under s 594 of the Fair Work Act.

Recommendation 16–2 Fair Work Australia should review its processes, and members and other relevant personnel should be provided with consistent, regular and targeted training to ensure that the existence of family violence is appropriately and adequately considered at relevant times.

Fair Work Ombudsman

16.28 The FWO is an independent statutory office created by the Fair Work Act.[27] The primary aim of the FWO is to promote harmonious, productive and cooperative workplace relations and compliance with the Act, through education, assistance and advice. The FWO also plays a role in monitoring compliance, carrying out investigations, and in some cases, commencing proceedings or representing employees or outworkers in order to promote overall compliance.[28] The FWO has an obligation to consult with FWA in producing guidance material that relates to FWA’s functions.[29]

16.29 Key recommendations in Part E of this Report that relate to the role of the FWO are: Recommendation 15–2—privacy guidance material; Recommendation 16–3—IFA’s; and Recommendation 16–5—family violence clauses in enterprise agreements.

[11]There are several types of FWA members: Primary FWA members including the President; Deputy Presidents and Commissioners; and Minimum Wage Panel members: Fair Work Act 2009 (Cth) s 575.

[12] Ibid pt 5–1, div 3.

[13]The fee is currently $60.60. See: Fair Work Regulations 2009 (Cth) regs 3.02, 3.03, 3.07, 6.05.

[14] National Network of Working Women’s Centres, Submission CFV 20.

[15]Fair Work Regulations 2009 (Cth), regs 3.02(7), 3.03(7), 3.07(7), 6.05(7).

[16] ADFVC, Submission CFV 26.

[17] As suggested by Kingsford Legal Centre, Submission CFV 161.

[18] Under Work Choices the time limit was 21 days. In the Fair Work Bill 2008 (Cth) the time limit was initially 7 days.

[19] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [r 222].

[20] ADFVC, Submission CFV 26. See also Kingsford Legal Centre, Submission CFV 161.

[21]Fair Work Act 2009 (Cth) ss 729, 394. The exceptional circumstances factors are largely based on the principles outlined in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[22]Fair Work Act 2009 (Cth) s 394(3).

[23] ADFVC, Submission CFV 26. See also Kingsford Legal Centre, Submission CFV 161.

[24]Fair Work Act 2009 (Cth) ss 394(3), 593, 594.

[25] ACTU, Submission CFV 100.

[26] Fair Work Australia, Consultation, by telephone, 30 September 2011.

[27]Fair Work Act 2009 (Cth) s 681.

[28] Ibid s 682(1).

[29] Ibid s 682(2).