19 February 2020
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Your questions answered

by David Bates

On 25 September I once again had the pleasure of joining Peter on his Sky News Business Program to discuss HR and workplace relations. My comments that evening about the Fair Work Ombudsman (FWO) and the Fair Work Commission (FWC) prompted a large number of questions from viewers.

This week, I’m pleased to present answers to the most common questions we received after the show:

What’s the difference between the FWO and the FWC?

These are two quite different bodies with very distinct powers. Think of the FWO as the ‘police on the beat’. The FWO deals with complaints from aggrieved employees about wages and conditions, and it’s the FWO that employs Fair Work Inspectors who have the power to enter your business, interview you and your employees, and review employment records. If they suspect you’re breaching the law, they can issue on the spot penalties in some cases, or they can refer the matter on for prosecution.

The FWC, on the other hand, is the tribunal where unfair dismissal cases are heard. The FWC also deals with a number of other employment law matters including right of entry disputes, adverse action claims and Enterprise Agreement applications and approvals.

Is it true that many Commissioners who hear cases have no legal qualifications at all?

Yes. Commissioners are appointed by the Commonwealth Government of the day, and are almost always former trade union officials or employer advocates (such as leaders of employer associations or chambers of commerce). Sometimes a Commissioner will be a former lawyer, but this is the exception rather than the rule. Most Commissioners have not run their own businesses before being appointed to the FWC.

Contrast this with judges in our state and federal courts, who are either former barristers or solicitors with lengthy and distinguished legal careers behind them. We expect our judges to have an intimate and comprehensive understanding of law, practice, and procedure. We don’t currently have the same expectations of Fair Work Commissioners.

Is it true that the ‘rules of evidence’ don’t apply in the FWC?

Yes. If you still don’t believe me, see section 591 of the (somewhat ironically named) Fair Work Act 2009 which reads, and I quote: ‘The FWC is not bound by the rules of evidence and procedure in relation to a matter before it…’.

If you think this means your case might be heard by a Commissioner with no legal qualifications in a tribunal where the rules of evidence don’t apply, you’d be absolutely right.

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