Presenters: Commissioner Anne GooleyCommissioner David Gregory

Date: June 2012

Country Paper: Australia

© Commonwealth of Australia — Fair Work Australia 2

Outline

• What is Fair Work Australia (FWA)

• What is the structure of FWA

• What are the primary functions

• What are the processes utilised by FWA to resolve disputes

• What is the nature of decisions and orders of FWA

• What numbers of applications are dealt with by FWA

© Commonwealth of Australia — Fair Work Australia 3

Fair Work Australia

• FWA is a national body operating in each State and Territory of Australia

• Established in July 2009 but it is a successor to the Australian Industrial Relations Commission

• Creature of Commonwealth statute:

• Roles, functions and powers in legislation

• Broad powers to inform itself but must provide natural justice

• Equity, good conscience and substantial merits

• Emphasis upon expeditious, informal dispute resolution

• Independent of Government

© Commonwealth of Australia — Fair Work Australia 4

FWA Structure

President

Presidential MembersMinimum Wage Panel

General Manager

CommissionersAdministration Staff

© Commonwealth of Australia — Fair Work Australia 5

Primary Functions of Fair Work Australia• providing a safety net of minimum conditions, including minimum

wages, in awards

• facilitating good faith bargaining and the making of enterprise agreements

• granting remedies for unfair dismissal

• regulating the taking of industrial action

• resolving a range of collective and individual workplace disputes through conciliation, mediation and in some cases arbitration

• functions in connection with workplace determinations, equal remuneration, transfer of business, general workplace protections, right of entry and stand down

• administering the registration of Unions and Employer associations and their financial accountability

© Commonwealth of Australia — Fair Work Australia 6

General Dispute Resolution

Application to FWA

Informal Conference /Hearing

Conciliation/Mediation

Arbitration

Appeal to Full Bench by leave

Federal Court on question of law

If unresolved and FWA empowered

Example – issue arising under an enterprise agreement or award

© Commonwealth of Australia — Fair Work Australia 7

General Protections Disputes

Application to FWA

Conciliation by FWA Member

Certificate from FWA & Assessment

Application to Federal Court

If Unresolved

Example – Unlawful Dismissal on Grounds of Industrial Activity

© Commonwealth of Australia — Fair Work Australia 8

Unfair Dismissal

Application to FWA

Conciliation by Conciliator

Single Member FWA ArbitrationJurisdiction

MeritRemedy

Appeal by Leave to Full Bench of FWA

Appeal to Federal Court on Question of Law

© Commonwealth of Australia — Fair Work Australia 9

Binding nature of decisions & orders• Orders and decisions handed down by FWA are binding

on the parties involved – enforceable in the Courts

• They may be appealed to the Federal Court on matters of law

• FWA does not have the power to make binding orders with regard to certain matters including:

o Unlawful terminations;

o Disputes under Awards and Enterprise agreements unless the parties consent to allow FWA to arbitrate disputes; and

o Certain matters arising from the National Employment Standards.

© Commonwealth of Australia — Fair Work Australia 10

FWA Applications

Matters lodged