Fair Work Australia

16.22 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 independent divisions. It commenced operation on 1 July 2009, assuming the functions of the Australian Industrial Relations Commission (AIRC), the Australian Industrial Registry, the Australian Fair Pay Commission and some functions of the Workplace Authority.[22]

16.23 Under s 577 of the Fair Work Act, FWA is required to perform its functions and power 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.

Jurisdiction and appeals

16.24 FWA has its functions conferred by s 576 of the Fair Work Act, including the following subject areas of relevance to this Inquiry:

  • the National Employment Standards (Part 2–2);
  • modern awards (Part 2–3);
  • enterprise agreements (Part 2–4);
  • general protections (Part 3–1);
  • unfair dismissal (Part 3–2);
  • the extension of the National Employment Standards entitlements (Part 6–3); and
  • unlawful termination protections (Part 6–4).

16.25 Decisions of FWA (other than decisions of the Full Bench or the Minimum Wage Panel) can be appealed upon application to FWA, provided the Full Bench has granted permission.[23]

Options for reform

16.26 To examine what improvements could be made to the Fair Work Act to protect those experiencing family violence, any consideration of systemic reforms to the role or powers of FWA is beyond the scope of the Terms of Reference for this Inquiry. However, some of the changes to the Fair Work Act proposed by the ALRC in this chapter and Chapter 17 will necessarily have an impact on the work of FWA, for example by requiring FWA to:

  • consider whether family violence clauses in enterprise agreements pass the ‘better-off-overall’ test;
  • vary awards; and
  • deal with disputes under the general protections provisions concerning any new family violence ground.

16.27 As a result, the ALRC is interested in stakeholder views on other ways FWA does, or could, function to protect the safety of those experiencing family violence. At this stage, two areas for reform have emerged in the course of the Inquiry—application fees, dealt with below, and data collection, dealt with in Chapter 14.

Application fees

16.28 Waiver of application fees may be one area in which FWA processes could be improved in order to respond to the needs of employees experiencing family violence, and to increase the accessibility of the system. The Fair Work Act provides that the Fair Work Regulations 2009 (Cth) may prescribe an application fee, a method for indexing the fee and the circumstances in which all or part of the fee may be waived or refunded.[24] Accordingly, the Fair Work Regulations set out matters relating to the payment of application fees.

16.29 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 of $60.60.[25] However, the 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.[26]

16.30 Some stakeholders commented, in response to the Family Violence—Employment and Superannuation Law, ALRC Issues Paper 36 (2011) (Employment Law Issues Paper), that

the application fee may provide a disincentive to lodge for a woman already experiencing financial hardship after losing her income (even acknowledging capacity to have the fee waived).[27]

16.31 In its submission, the Australian Domestic Violence Clearinghouse (ADFVC) emphasised that:

The prescribed application fee may also serve as a disincentive to some of the most vulnerable victims of family violence seeking redress for unfair dismissal. Although FWA has the discretion to waive fees in the case of serious financial hardship, the Clearinghouse is aware of instances where community legal centres have been unable to obtain a fee waiver for welfare-dependent clients with no realisable assets. Accordingly, the Clearinghouse recommends that FWA reassess its internal guidelines on what circumstances constitute ‘serious hardship' and ‘exceptional circumstances’ in the context of out of time applications to improve access to unfair dismissal remedies for victims of family violence.[28]

16.32 As a result, the ALRC would be interested comment about whether FWA application fees restrict people experiencing family violence from making applications and whether, in practice, there is difficulty in establishing ‘serious hardship’.

16.33 The FWA application ‘Waiver of Application Fee’ form currently requires general financial information and provides a space for ‘other comments’. The ALRC suggests there may be a need 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. For example, where family violence may affect access or control over his or her income or the partner’s income.

Question 16–1 How do, or how could, Fair Work Australia’s role, functions or processes protect the safety of applicants experiencing family violence?

Question 16–2 In making an application to Fair Work Australia, applicants are required to pay an application fee. Under the Fair Work Regulations 2009 (Cth) an exception applies if an applicant can establish that he or she would suffer ‘serious hardship’ if required to pay the relevant fee. In practice, do people experiencing family violence face difficulty in establishing that they would suffer ‘serious hardship’? If so, how could this be addressed?

Question 16–3 In applying for waiver of an application fee, referred to in Question 16–2, applicants must complete a ‘Waiver of Application Fee’ form. How could the form be amended to ensure issues of family violence affecting the ability to pay are brought to the attention of Fair Work Australia?

[22]There are three types of FWA members: Primary FWA members including the President, Deputy Presidents and Commissioners who are appointed until the age of 65 and are full-time; Minimum Wage Panel members who are appointed for a set period of not more than five years and are part-time; and Members of state industrial tribunals who hold also hold an appointment with FWA: Fair Work Australia, Website <http://www.fwa.gov.au/index.cfm> at 20 June 2011.

[23]Fair Work Act 2009 (Cth) pt 5–1, div 3.

[24] See, eg, Ibid s 395.

[25]Fair Work Regulations 2009 (Cth) regs 3.02, 3.03, 3.07, 6.05. Note the fee is indexed according to a formula outlined in the Regulations: Fair Work Regulations 2009 (Cth) regs 3.02(3), 3.03(3), 3.07(3), 6.05(3).

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

[27] National Network of Working Women’s Centres, Submission CFV 20, 6 April 2011.

[28] ADFVC, Submission CFV 26, 11 April 2011.