Appearing before the Fair Work Commission

If you have a serious argument with an employee (or ex-employee) about a workplace issue, chances are you will end up before the Fair Work Commission. You may find yourself before the Commission facing a claim about:

The key stages of appearing before the Fair Work Commission

Once a claim has been made, you will find yourself progressing along the following main steps:

Mediation – This is an ‘informal’ process in which an officer of the Commission helps the parties to resolve the dispute between themselves, without any specific direction from the Commission. Mediations are voluntary, and are used as the first step in the dispute resolution process. Anything said at a mediation is off-the-record.

Conciliation – A conciliation is the next step up from a mediation. It’s still a relatively informal process, but the discussions between the parties are more closely overseen by a Conciliator from the Commission. Conciliations are voluntary, and are usually conducted over the phone or, on occasion, face-to-face. They involve a number of off-the-record discussions between the parties themselves, and between the Conciliator and each party.

Case conference – This is a procedural meeting where a Member of the Commission (who is similar to a judge) will make orders or directions about how the matter is to be conducted prior to the hearing.

Hearing – The hearing is the formal process in which the parties make submissions about the dispute (i.e. argue their position) before a Member. Hearings are conducted in public at the Commission. If the dispute proceeds to a hearing, the parties must complete a number of documents from which the presiding Member will makes his or her decision.

How can we help you through the Fair Work Commission stages?

The bad news (maybe for us!) is that the amount of work a lawyer is allowed to do on your behalf in your case before the Commission is quite limited (due to the decision in Fitzgerald v Woolworths Ltd [2017] FWCFB 2797). This means you are going to have to ‘represent’ yourself to a large degree.

However, the good news is we can still help you put forward your absolute best case. We do this in three ways:

  • First, we can assist you negotiate with your employee (or ex-employee) prior to the case being heard before the FWC.
  • Next, we help you formulate and prepare your strategy to respond to the compliant before the FWC.
  • Finally, we provide you with training on the best way to present your arguments before the Fair Work Commission.

Put simply, we are allowed to help you with preliminary tasks, such as preparing and lodging documents at the FWC on your behalf. You then need to participate in the conciliation or mediation process before the Commission.

To sum things up, we can help you by:

  • Providing you with advice on the strengths and weaknesses of your claim;
  • Providing guidance on the likely outcome of the claim, and assisting you determine what a commercially favourable settlement might look like;
  • Identifying alternative ways of resolving the dispute, outside of the context of the FWC;
  • Preparing and lodging written submissions on your behalf;
  • Corresponding with the Commission on your behalf;
  • Helping you to prepare for a mediation, conciliation, case conference or hearing; and
  • Participating in conciliation and mediation processes for stop-bullying applications.

Can you apply for us to represent you before the Commission?

If your matter is complex, it is possible for you to apply for permission from the Commission to get us more involved in preparing and presenting oral submissions on your behalf in a conference or hearing. We may also get involved in examining or cross-examining witnesses at such a hearing. Another reason why the FWC may grant you permission for us to represent you is if there is a power imbalance between you and the person you are up against. However, this is usually only the case when an employee is facing up against the HR department of a larger employer.

That said, the times when we are likely to get permission to help you all the way are going to be very limited.

What do to next

If you have a date with the Fair Work Commission, then call us for a no-obligation chat. We can get you in great shape to put your best case forward.