The Fair Work Commission and the Fair Work Ombudsman are independent government bodies that are central to industrial (employment) relations in Australia. This article will discuss what the functions and limitations of each of the two organisations are.
The Fair Work Commission (‘FWC’) and the Fair Work Ombudsman (‘FWO’) were created by the Rudd Government under the Fair Work Act 2009 (Cth) (‘FWA’). These two organisations helped reform industrial relations in Australia and dismantle the Howard Government’s ‘Workchoices’ legislation. The FWC and FWO were established with the purpose of regulating the industrial relations system in Australia. Despite having the same purpose, both organisations have different functions, limitations and processes.
The FWC (previously known as Fair Work Australia) is an independent national tribunal specialising in Australian industrial relations matters. As a tribunal, the FWC operates like a court in the sense that it is able to hear workplace disputes and make binding decisions.
The FWC’s functions and powers are set out in section 576 of the FWA. Some of these functions and powers include:
The FWC’s role also extends to:
The FWC is unable to:
Unlike the FWC, the FWO can carry out these functions, as will be discussed below.
You can initiate a matter before the FWC by lodging an application (through the Online Lodgment Service or posting it to a FWC office). To avoid having the application dismissed, it is important to ensure that the correct form is used when lodging an application.2 After the application has been lodged, the FWC will assess and respond to the application by determining the appropriate course of action to resolve the dispute. This can include:
The FWC also has powers to dismiss applications on its own initiative.3 Applications can also be dismissed in certain circumstances where the application:
The FWO (formally known as the Office of the Fair Work Ombudsman) is an independent statutory organisation that investigates and enforces compliance with the FWA, and other related workplace legislation. To encourage compliance, the FWO also provides employees and employers with free advice and education about the national workplace laws.
The FWO’s functions and powers are set out in section 682 of the FWA. Some of these functions and powers include:
The FWO is unable to:
While the FWO cannot perform these activities, the FWC has the power and authority to carry out these functions. As such, these matters would be dealt with by the FWC.
To make a complaint or ask the FWO for help, you will need submit an online enquiry. To do this, you will need to login or register an account on the FWO’s website. Submitting an online enquiry is a quick and easy process that takes about 5 – 10 minutes to complete.
When making an online enquiry, it is important to include information pertaining to what the dispute is about and other key information regarding the work situation (eg employer’s business name, employee’s duties and pay rate). Evidence (such as pay slips and contracts) do not need to be included in the online enquiry. If the FWO requires such evidence, they will ask for it later.
Once an enquiry has been submitted, FWO will contact you within the next business day and inform you about whether they will get involved in the matter. Before deciding if they will get involved, FWO will consider:
While different, the FWC and FWO’s primary purpose is to promote and assist in maintaining fair and productive workplaces.
Comasters Law Firm can help clients make a complaint to the FWC or FWO, and/or respond to a complaint made to the FWC or FWO.
Comasters is able to assist clients with matters concerning the FWC or FWO.
1 Fair Work Act 2009 (Cth) s 576(2) (‘FWA’).
3 FWA s 587(3)(a).
4 Ibid s 587(1).
© Comasters March 2021.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.
Comasters Law Firm and Notary Public is a commercial legal practice in Sydney. We conduct matters in a range of legal areas. Whilst based in Sydney, Comasters maintains close links with business people across the Asia Pacific region.