The Fair Work Commission (FWC) is Australia’s national workplace relations tribunal. It plays a critical role in resolving workplace disputes, setting industry awards, and safeguarding employee rights.
Individuals and businesses can bring various claims to the FWC to resolve conflicts or address issues related to employment rights, including disputes over unfair dismissal, bullying, or wage entitlements.
Unfair Dismissal Claims
One of the most common types of claims heard by the Fair Work Commission is related to unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth) (FWA). This occurs when an employee believes she/he has been dismissed in a manner that is harsh, unjust, or unreasonable.
To make a claim for unfair dismissal, the employee must meet certain eligibility requirements:
- Employees must have worked for at least 6 months (or 12 months for small businesses with fewer than 15 employees); and
- Employees must be covered by a Modern Award, enterprise agreement, or have an income under the high-income threshold ($175,000 annually); and
- Employees must have worked for a national system employer; and
- The dismissal is not a case of genuine redundancy; and
- The dismissal is not effected under the Small Business Fair Dismissal Code.
If the FWC finds that the dismissal was unfair, remedies can include reinstatement or compensation for economic loss suffered (such as loss of wages), which is capped at $87,500 (equivalent to six months’ pay). Notably, the media compensation awarded at a hearing between 2019 and 2023 is approximately $7,200, which is equivalent to 6.3 weeks’ pay.
General Protections (Adverse Action) Claims
A General Protections claim under Pt 3-1 of the FWA, also known as an adverse action claim, can be made if an employee believes she/he has been treated unfairly for exercising a workplace right, such as raising concerns about workplace safety, filing a complaint, or being a member of a union. Adverse actions include dismissal, discrimination (eg, race, age, sex, sexual orientation or religion), or any detrimental treatment (including reduced pay or work hours) because the employee exercised his/her rights.
Unlike unfair dismissal claims, general protection claims apply not only to employees (any employee, regardless of length of employment or level of wages) but also to independent contractors and prospective employees. This makes general protections claims broader in scope and critical for addressing workplace discrimination or retaliation.
In addition, the onus (burden of proof) is on the employer to prove that the action taken by it was not for a prohibited reason.
In this jurisdiction, damages/ compensation is uncapped, and additional monetary penalties (under civil penalty provisions) against the employer or individual perpetrator and injunctions (interim and permanent) may be sought.
In 2021, one employee was awarded $2.8 million (which reflected compensation for pain and suffering, past and future economic loss, penalties, and $300,000 for legal costs) by the Federal Court of Australia for ongoing bullying and harassment.
In 2024, penalties awarded ranged from $2,664 to $171,000.
Workplace Bullying Claims
The Fair Work Commission provides a pathway for employees who experience workplace bullying to seek orders for the behaviour to stop under section 789FC of the FWA.
A workplace bullying claim can be made if an individual or group repeatedly behaves unreasonably towards a worker, and that behaviour poses a risk to their health and safety.
Upon receiving a claim, the FWC can issue an order to prevent further bullying.
Unlawful Termination Claims
Unlawful termination claims under Part 6‑4 of the FWA, arise when an employee is dismissed for a prohibited reason, such as discrimination based on race, sex, or religion, or for being temporarily absent from work due to illness or injury. Unlike unfair dismissal claims, employees who have been terminated for these reasons can make a claim even if they do not meet the minimum employment period requirements.
Employees cannot apply for unlawful termination if they can apply under the general protections provisions of the FWA.
Disputes over Modern Awards and Enterprise Agreements
Modern awards and enterprise agreements set the minimum terms and conditions of employment for employees in specific industries or sectors. Disputes may arise regarding the interpretation of these agreements or if employees believe they are not receiving their full entitlements (including casual conversion).
The FWC can assist in resolving such disputes through mediation or conciliation. Claims may involve issues such as incorrect pay, working conditions, or breaches of contract terms.
Applications for Stop Sexual Harassment Orders
Part 6‑4B of the FWA has empowered the FWC to issue stop sexual harassment orders. Employees, contractors, and others (such as outworkers, apprentices, trainees, students gaining work experience or volunteers) who have been subjected to sexual harassment at work can apply for an order.
If the Commission finds that a worker has been sexually harassed and there is a risk of further harassment, it can order the employer to take steps to prevent future occurrences.
Equal Remuneration and Equal Pay Claims
The Fair Work Commission also handles claims related to gender pay equality and discrimination in remuneration under section 302 of the FWA.
If employees believe they are being unfairly paid compared to others doing the same work, they can file an application for an equal remuneration order. These orders address any discrepancies in pay that are not justified by skills, qualifications, or experience.
Lodge a Claim with the Fair Work Commission
Eligibility Check
Employees should ensure they are eligible to lodge a claim based on the type of claim they are pursuing.
Application Submission
Most claims can be lodged online through the Fair Work Commission’s website. The forms required and the applicable fees depend on the nature of the claim.
Conciliation
The Fair Work Commission may first attempt to resolve the matter through conciliation, a less formal process where both parties discuss the dispute with the help of an independent conciliator.
Hearing or Conference
If conciliation does not resolve the issue, the FWC may proceed to a formal hearing where both parties present evidence and the Commission makes a binding decision.
If you find yourself involved in an FWC proceeding, please know that The IP House Lawyers are here to help. We understand that this can be a challenging time, and we want to offer our guidance to assist you with your specific situations and issues. Our team can provide valuable insights on handling complex claims, and we can also represent you in FWC proceedings.
For any further information or queries on the above content, please contact us.
The Author
Jean Kallmyr | Lawyer, The IP House Lawyers | t: 0435 799 831 | e: admin@theiphouse.com.au
Key Contact
Claire Darby | Managing Director/Lawyer, The IP House Lawyers | t: 0412 998 951 | e: claire@theiphouse.com.au
Disclaimer
The information and contents of this publication do not constitute any legal or financial advice. This publication is intended only for reference purposes for The IP House Lawyers’ clients and prospective clients.
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