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The Fair Work Commission: just not good enough

David Bates
Thursday, November 07, 2013

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by David Bates

Australia’s employment relations tribunal, the Fair Work Commission (FWC), has now published its 2012-13 Annual Report under the rather Orwellian title of ‘One Future Direction’. It certainly makes for interesting reading (if you’re into that kind of thing), and by interesting, I actually mean deeply disturbing.

Most Australian employers will, thankfully, have had little if any interaction with the FWC since its creation by Julia Gillard back when she was the responsible Minister in the first Rudd Government. You may know of its existence only because of the publicity generated by its much criticised three year investigation into former MP Craig Thomson’s use of union-issued credit cards.

Employers are certainly entitled to ask whether the poor performance evidenced by the Commission in relation to that enquiry is consistent with its standards when dealing with claims lodged against employers by aggrieved employees. Sadly, the answer is yes.

Here are some facts every employer needs to know about the FWC:

The Commissioners who hear cases are not ‘judges’. Judges in Australia’s courts are appointed only after many years of distinguished legal practice. Commissioners, in contrast, need only possess “appropriate knowledge or experience in relevant fields such as workplace relations, law, business, industry or commerce.

Many Commissioners are former trade union officials. Most of the new Commissioners appointed by the former Government were former trade union officials or people linked to unions. They were eligible for appointment because of their ‘experience’ in workplace relations.

The normal rules of evidence don’t apply. The FWC isn’t bound by the standard rules of evidence that apply in Australian courts. This is expressly confirmed by section 591 of the Fair Work Act 2009:  ”The FWC is not bound by the rules of evidence and procedure in relation to a matter before it.” While quite common in tribunals of this kind, it certainly doesn’t do anything to ensure reliable and consistent decision-making.

The Commission is poorly staffed. If you ever find yourself facing an unfair dismissal claim, don’t phone the Commission’s Unfair Dismissal Team (UDT) – urgent calls routinely go to voicemail and, in this Company’s experience, are rarely returned. Oh, and don’t attempt to read the letters the UDT sends either – the last three received by this office were addressed to the wrong people and contained blank fields where the mail merge didn’t quite go to plan. Not a good look for a tribunal that enforces the law.

It’s a shame only one of the 189 pages in the Commission’s report is devoted to complaints. And we’re not sure if employers should laugh or cry when reading the Commission President’s Introduction where he describes the Commission as independent, competent and professional. Australians deserve much better than this ineffective shambles.

Published: Thursday, November 07, 2013


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