Practice note: Fair hearings

1. This practice note commences on 15 July 2016.

2. This practice note applies to conferences and hearings conducted by Members of the Fair Work Commission.
3. This practice note summarises key points regarding the obligations of all participants in Commission proceedings, and is not intended to act as a code.
4. The Commission is subject to common law principles of procedural fairness. The Commission and the parties appearing before it, including their representatives, all have responsibilities to each other and to facilitate the provision of a fair hearing to all participants.

5. In this Practice Note:

6. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

7. The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act ‘judicially’ in the sense that they are obliged to provide procedural fairness and to determine matters impartially.
8. The Act sets out some of the Commission’s obligations regarding the conduct of conferences and hearings.
9. If the Commission holds a hearing in relation to a matter, the hearing must be held in public, except in the limited circumstances provided in s.593(3) of the Act. Further, the Commission must perform its functions and exercise its powers in a manner that:

• is fair and just;
• is quick, informal and avoids unnecessary technicalities;
• is open and transparent; and
• promotes harmonious and cooperative workplace relations (s.577 of the Act).

10. Section 578 of the Act provides that in performing its functions or exercising its powers the Commission must take into account:

• the objects of the Act and any part of the Act in relation to which a power or function is being exercised;
• equity, good conscience and the merits of the matter; and
• the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

11. The Commission seeks to provide a safe environment for parties. Due to the nature of some proceedings it is possible that some parties may feel nervous or self-conscious at the Commission especially where their case deals with sensitive issues. If a party has genuine concern for their safety they should advise the Commission before the proceeding so that appropriate steps can be taken.

12. The Commission is obliged to perform its functions and exercise its powers in a manner that is fair, just and quick. An efficient dispute resolution service resolves disputes in a timely and appropriate way that minimises the costs incurred by the parties.
13. During proceedings Members have a responsibility to:

• listen to evidence;
• ask questions to clarify points that are unclear and to obtain information that is relevant to the considerations which the Member must take into account;
• manage the behaviour of advocates to ensure that all parties are treated with courtesy and respect;
• exclude irrelevant information;
• discourage repetition; and
• deal with each matter on its merits, in accordance with the relevant provisions of the Act.

14. Members are responsible for ensuring that proceedings are fair and that parties are treated with courtesy and respect. An important element of the fair hearing obligation is the duty to provide appropriate assistance to parties in the presentation of their case, in particular self-represented parties. This means that in some circumstances a Member has an obligation to intervene, both for the benefit of a self-represented party and more generally.
15. The assistance provided to self-represented parties by a Member may, depending on the circumstances, include:

• explaining the relevant legislative provisions;
• identifying the issues which are central to the determination of the particular proceedings;
• assisting a party to conform with procedural and evidentiary rules designed to avoid unfairness;
• drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence;
• offering a party an interpreter where it appears that this may assist that party to participate more fully in the proceeding;
• facilitating the fair, just and quick determination of the matter; and
• adjourning a proceeding in circumstances where it would be unfair to proceed.

16. Despite this obligation, the assistance a Member can properly provide to a self-represented party is limited. The parties retain the responsibility to present all relevant evidence and materials and to make submissions in support of their cases. The Member must balance the interests of the parties who represent themselves with the need to:

• afford procedural fairness to other parties;
• ensure that proceedings are conducted efficiently and costs are kept to a minimum; and
• ensure that proceedings are conducted in a manner that is impartial and can be seen to be impartial.

All parties have the right to a fair and efficient hearing.

17. The Commission Member Code of Conduct (pdf) guides Members in performing their functions. The Code is available on the Commission’s website.
18. Where a fact needs to be established, and that fact is contested, the Commission will determine the question on the balance of probabilities (i.e. whether it is more likely than not). In considering the evidence, the Member may seek further information from the parties, but will not rely solely on statements made from the bar table, unless those statements are unchallenged. Members may inform themselves in relation to matters before them as they consider appropriate, including by:

• requiring a person to attend the Commission
• inviting parties to make oral and/or written submissions
• requiring a person to provide copies of documents or records, or to provide any other relevant information to the Commission
• conducting a conference
• holding a hearing, and
• taking evidence under oath

[see ss.590, 592 & 593 of the Act].

19. If a person has been required to attend the Commission and does not do so, a Member may determine a matter in the absence of that person (s.600 of the Act). The Commission may also dismiss an application (other than a general protections dispute application or an unlawful termination dispute application) if the application:

• is not made in accordance with the Act;
• is frivolous or vexatious; or
• has no reasonable prospects of success

[see s.587 of the Act].

20. Upon application by an employer, the Commission may dismiss an application for an unfair dismissal remedy if the applicant has unreasonably:

• failed to attend a conference or a hearing in relation to the application;
• failed to comply with a direction or order of the Commission; or
• failed to discontinue the application after a settlement agreement has been concluded

[see s.399A of the Act].

The Commission may also use its general powers to dismiss applications, including unfair dismissal applications (s.587 of the Act).

21. Parties and their representatives also have obligations, both to the Commission and to each other.
22. Parties and their representatives are required to participate in proceedings in a responsible way to assist the Commission to provide a fair hearing for all parties.
23. Parties and their representatives should:

• treat the Commission and other parties/representatives with courtesy and respect
• act honestly, and not knowingly give false or misleading information
• cooperate with other parties and the Commission to facilitate the just, efficient, timely and cost effective resolution of the issues in dispute
• act promptly, comply with Commission directions for the timely resolution of the matters and minimise delay
• take reasonable steps to ensure the costs incurred in connection with proceedings are reasonable and proportionate to the complexity and importance of the issues and amount in dispute, and
• where appropriate take reasonable steps to resolve disputes by agreement or to minimise the number of issues in dispute.

24. The Commission’s impartiality is central to a fair hearing. Bias, whether actual or apprehended, is inconsistent with the Commission’s obligation to provide a fair hearing.
25. The general principle is that a Member should not deal with a matter if in all the circumstances a fair minded observer might have a reasonable apprehension that the Member might not bring an impartial and unprejudiced mind to the case before him or her.
26. If a party believes that a Member may not bring an impartial mind to the matter, they may make an application that the Member disqualify himself or herself from hearing the matter. For example, if a Member conciliates a matter and a party believes that the Member may not bring an impartial mind to the arbitration of the dispute then they may request that the matter be referred back to the relevant Panel Head for allocation to another Member.
27. Any application will be considered in context, with each decision depending on the particular issues or circumstances raised (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 (pdf)). For example, as explained in paragraphs 14 and 15 above, Members may intervene in the conduct of matters to ensure that proceedings are conducted fairly and efficiently. This approach will have an effect on the way in which applications to disqualify a Member are considered (see for example Johnson v Johnson (2000) 201 CLR 488 (pdf) at 493 [13] per Gleeson CJ, Gaudron, McHugh Gummow and Hayne JJ).
28. In dealing with apprehended bias applications, the High Court has made clear that Members should not too readily agree to disqualify themselves. As the High Court observed in Re JRL Ex parte CJL (1986) 161 CLR 342 at 352:

29. An apprehended bias application will not automatically be granted if a Member’s past decisions on questions of fact or law could lead to a reasonable expectation that they would decide a matter adversely for one of the parties (see Re Finance Sector Union of Australia Ex parte Illaton Pty Ltd (1992) 107 ALR 581 at 583).

30. Communication between parties and the Commission is necessary for the running of matters in a manner that is quick, informal and avoids unnecessary technicalities. However, all such communication must be undertaken with care to ensure that the impartiality and integrity of the Commission is not undermined. Communications between the Commission and parties must always be open and transparent.
31. Email correspondence is the preferred method of communication with and by the Commission and all emails must be copied to other parties participating in the proceedings or whose interests might be affected unless there is some special confidentiality requirement which needs to be accommodated.
32. Communication by telephone should be avoided in all but purely administrative matters. Where the communication by telephone is necessary, usually for reasons of urgency, the party initiating the communication should ensure that other interested persons are advised about it - preferably in advance, but at the very least as soon as possible after the communication has occurred. On the rare and usually very urgent occasions when a member finds it necessary to initiate a telephone conversation with a party or the party’s representative, the member will either arrange for other parties to be informed by his or her chambers or request that the recipient of the communication undertake that task (see Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [2016] FWCFB 916).

33. The Commission will send to the parties a notice telling them the time, date and location of any conference or hearing to be held in relation to a matter. Unless specifically advised otherwise, the parties are required to attend the conference or hearing.
34. Where a matter is listed for a conference or hearing, the Commission may direct the parties to file written outlines of submissions and other material prior to the proceedings. The filing of such material may help to clarify the issues to be considered in the proceedings and thereby facilitate the efficient conduct of the matter. The parties are required to comply with the directions issued, unless application is made for the directions to be varied. See also paragraphs 46 to 51 of the Appeal proceedings practice note for information on standard directions for appeals.

35. A person seeking to have the time or date of proceedings changed should apply for an adjournment as early as possible and, where possible, before the day of the conference or hearing.
36. Applications for adjournments made prior to a conference or hearing should be made in writing, specifying the reason for the request, to either the Associate of the Member who is allocated the application or the contact person for the application specified in correspondence from the Commission. As the views of the other parties to the proceedings will often be a relevant consideration, the party seeking the adjournment should inform the other parties and seek to obtain their consent to the adjournment application. A copy of any adjournment application made to the Commission must be copied to the other party or parties to the proceeding, and should indicate whether the application is made with the consent of the other parties. The Member will decide whether the adjournment will be granted and, if so, the time and date of the new conference or hearing. If the adjournment is not granted, the matter will go ahead on the day previously notified.
37. If a party is to be absent from a proceeding, they must notify the Commission before the proceeding or, in the case of an unexpected emergency, as early as possible.

38. The information and assistance provided by the Commission to parties, particularly self represented parties, is an important part of providing access to justice. The provision of a fair hearing requires Members to identify the difficulties experienced by a party, whether due to lack of representation, literacy difficulties, ethnic origin, religion, disability or any other cause, and find ways to overcome those difficulties and assist them through the Commission process.

Interpreters

39. Parties can request that the Commission provide an interpreter for a conference or hearing. There is no cost to a party for interpreters provided by the Commission.
40. Parties can indicate that they require an interpreter on the form they lodge with the Commission. Alternatively, they may request an interpreter by telephone or in writing to the Commission as early as possible before the day of the conference or hearing.
41. If no interpreter has been requested, but a Member believes that an interpreter is required to allow a party to effectively participate in a proceeding, the Member may adjourn the proceeding until such time as an interpreter can be provided.

Assistance for hearing impaired

42. If a party is hearing impaired, they may make a request to the Commission that the proceedings be conducted in a room equipped with audio equipment. There is no cost to a party in respect of the use of this equipment.

Parties in remote locations

43. Applications can be made for persons to attend hearings by video or telephone link. Requests, with reasons for the request, must be made in writing to the Member’s chambers copied to other parties and provide as much notice as possible. Requests may be subject to the availability of facilities. Where proceedings are to be conducted using video or telephone links, it is important that parties provide any documents to the Commission and to the other parties in advance of the hearing or conference.

Disability, ill health or carer’s responsibilities

44. If a party has a disability or illness or has carer’s responsibilities for which the Commission will need to make arrangements, they should advise the Commission as soon as possible. Such a request may include:

• breaks to take medications;
• that hearings start or adjourn at particular times to accommodate family or carers’ responsibilities; or
• proceedings being adjourned in cases of ill health or emergency.

45. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent. However, a party may seek permission from the Member hearing the matter to be represented (see s.596 of the Act and see generally Warrell v Walton [2013] FCA 291).
46. You do not need to seek permission to be legally represented if the lawyer or paid agent representing you is an employee or officer of:

• your business;
• an organisation such as a union or an employer association that is registered under the Fair Work (Registered Organisations) Act 2009 that is representing the person;
• an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 that is representing the person;
• a peak council that is representing the person; or
• a bargaining representative

[see s.596(4) of the Act].

47. Subject to a direction by the Commission to the contrary, a person is permitted to be represented in a matter by a lawyer or paid agent in order to:

• prepare a written application or submission;
• lodge a written application, submission or other document; or
• correspond with the Commission in relation to the matter

[see Rule 12 of the Rules].

Further, the Commission’s permission is not required for a person to be represented by a lawyer or a paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages) [see s.596(3) of the Act].

48. You must seek permission to be represented by a lawyer or paid agent in a hearing or conference before the Commission (except in circumstances referred to in paragraph 44). The Member can only give permission for legal representation in a matter before the Commission if:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
• the party is unable to represent himself or herself effectively and it would be unfair not to allow them to be represented; or
• it would be unfair not to allow the person to be represented taking into account fairness between the parties

[see s.596(2) of the Act].

49. Examples of circumstances where permission for representation may be granted include:

• where a person is from a non-English speaking background;
• where a person has difficulty reading or writing; or
• where a small business is a party and they do not have specialist human resource staff, and the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations

50. Any party that wishes to apply for permission to be represented at an appeal hearing by a lawyer or paid agent will generally be given directions by the Commission to identify, in writing:

• the lawyer or paid agent they are seeking permission to have as a representative; and
• the reasons why permission should be granted, having regard to the matters outlined in s.596(2) of the Act.

51. The party will be required to lodge this request with the Commission, and serve it on the other party. The other party will then be given an opportunity to respond to this request, in writing, indicating whether they oppose the request for permission and, if so, the grounds for their opposition to the request. Where possible, the Commission will determine whether permission will be granted based on the material filed, and will advise the parties of the outcome prior to the hearing of an appeal.
52. A similar procedure will apply to applications for permission to be represented by a lawyer or paid agent in proceedings before the Commission for the determination of unfair dismissal claims at first instance.
53. Parties seeking to be represented in a conference or hearing should not assume that permission will be granted. Parties need to be prepared to proceed with a conference or hearing in the event that their representative is not permitted to appear. In the event that permission to be represented by a lawyer or paid agent is not granted the party may seek an adjournment, but whether an adjournment is granted will be a matter for the Member concerned and should not be assumed.

54. In general, a person must bear their own costs in relation to a matter before the Commission.
55. The power of the Commission to award costs is discretionary.
56. A person may be ordered to pay the costs of another party if:

• they made an application or responded to an application vexatiously or without reasonable cause;
• the making of the application or the response to the application had no reasonable prospect of success (s.611 of the Act).
• in an unfair dismissal proceeding, they caused costs to be incurred by the other party because of an unreasonable act or omission in relation to the conduct or continuation of the matter (s.400A of the Act)

57. Costs orders may be made against lawyers and paid agents in an unfair dismissal proceeding. Section 401(1A) of the Act provides that the Commission may make an order against a lawyer or paid agent for costs incurred by the other party to the matter if the Commission is satisfied that the representative caused those costs to be incurred because:

• the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success; or
• of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

58. Similar provisions apply to conference costs in relation to general protections applications (see s.376 of the Act), and unlawful termination dispute applications (see s.780 of the Act).

59. Commission Members and staff cannot provide legal advice or advice on how best to run a case. There are organisations that may be able to assist with complex cases.
60. Employers may seek assistance through an employer association or a peak employer body. Employees can contact unions or employee organisations for assistance.
61. Assistance can also be sought from individual advocates and lawyers. For a list of solicitors who deal with employment matters, employees and employers may contact the Law Institute or Law Society in their State or Territory. The National Association of Community Legal Centres Inc (NACLC) can assist parties with locating the nearest Community Legal Centre (go to the NACLC’s legal help page. Please note that the NACLC does not itself provide legal advice).
62. There are also a number of guides available on the Commission’s website and via the following links:

• Unfair dismissal information
• General protections information
• Fair Work Act 2009
• Fair Work Commission Rules 2013.

What to do when you arrive at the Commission for a proceeding

• Before you attend a conference or hearing at the Commission you should check the hearings and conferences list. The list identifies cases listed for a particular day, together with the Members dealing with them, the times of the hearings and conferences, and the location details – the floor and the hearing room number.
• Not all cases that are heard at the Commission are published on our website. Details of cases not listed here will, where appropriate, be available at the Commission office on the day. Some cases heard at the Commission are held in private and members of the public are not permitted to attend.
• Details of specific hearing rooms for cases being heard the next working day are published late on the previous day. The list is also published in capital city newspapers each day. Printed copies of the list can be found at Fair Work Commission public counters, near the courtrooms or, in some Commission premises, on the building's ground floor. Some lists may be available via electronic boards in the Commission’s lobbies.
• If your hearing is in a regional courthouse you may have to ask for information at the inquiry counter.

What happens during proceedings

• During proceedings the applicant and the respondent will each be given the opportunity to put their point of view forward. It is important to be prepared.
• If you are providing documents in support of your position bring enough copies for everybody involved, including the Member. Supporting documents could include copies of relevant pay slips, correspondence (including emails, letters and text messages), or extracts of the relevant workplace law, award or enterprise agreement.
• Where there are contested facts it may be appropriate to have previously obtained witness statements from relevant people. It may also be necessary to have witnesses give oral evidence so that they will have the opportunity to explain the matters in their statement. Each party will be given the opportunity to question witnesses.
• Witnesses give oral evidence under oath or affirmation.
• During a hearing a Member may allow the parties to break into a conference. This is an opportunity for more informal discussions to take place and is generally off the record.
• If, at the conclusion of proceedings you are unsure of any outcome or direction given during proceedings, contact the Member’s associate to confirm. The associate can also provide information on how to obtain a copy of the transcript of the proceeding if appropriate.
• Most proceedings, except for conferences, are recorded and the recordings may be transcribed. Parties may request an audio file of the recording to be provided to them, or may purchase a copy of the transcript.

Practical information to keep in mind during a hearing or conference

• Make sure you arrive for the hearing or conference early so that the proceedings can begin on time. Notify Commission staff when you arrive by approaching them in the hearing or conference room.
• If you are delayed for any reason it is important that you contact the Commission as early as possible to ensure a message is sent to the appropriate Commission staff.
• If you have a mobile phone or pager, make sure it is switched off in the hearing or conference room.
• Food and drink should not be brought into the hearing or conference room (unless medically necessary). Water is provided.
• Generally when you enter the hearing room and face the bench the applicant and their representatives sit on the right side of the room and the respondent and their representatives sit on the left. Only those who wish to be heard can sit at the bar table. If a party has a representative, the person giving the representative instructions may also sit at the table.
• At the beginning of the hearing, or if you leave or enter the hearing room while proceedings are underway, it is customary to bow to the Member, by standing and inclining your head.
• It is customary in hearings to stand when you are addressing the Member or when questioning a witness.
• When you are addressing a Commission Member refer to them by their title, e.g. Deputy President or Commissioner. Some Presidential Members (those appointed prior to 2009) are entitled to be addressed as 'Your Honour'. Commission staff at the hearing or conference can advise you of the appropriate form of address if you are unsure.

How to address Commission Members

What action can be taken if a party is aggrieved by a decision of the Commission

Appeal proceedings are outlined in the Appeal proceedings practice note, available on the Commission website.