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Top 10 Tips for Self-Representing in the Fair Work Commission

with special guests Commissioner Hampton and Commissioner Platt

 

 This webinar was presented by Nikki Candy, Lawyer at the Working Women’s Centre, and Commissioner Platt and Commissioner Hampton of the Fair Work Commission.

 

Background – The Fair Work Commission

The Fair Work Commission (the Commission) is Australia’s workplace tribunal established under the Fair Work Act 2009 (Cth). The Commission comprises of Members (who conduct proceedings and make decisions) and staff (who assist the public, parties and provide services to the Members). They are based in each State and Territory. The Commission currently has three Members in South Australia.

The Commission deals with approximately 30,000 applications and 13,000 hearings and conferences per year. The great majority of these cases involve unrepresented parties, so the information, systems and processes of the Fair Work Commission are designed to be accessed by self-represented parties.

The Commissioners’ role is to conduct the conference or hearing regarding your matter.

Commissioners Platt and Hampton kindly agreed to share their Top 10 Tips on Self-Representing in the Fair Work Commission.

 

Filing the application

Tip #1 Think about the type of application you’re filing

There are different options for filing a claim. Think about what outcomes do you want to achieve, and does the form of application enable that? For instance – consider whether you are eligible to apply for the kind of application you are considering.

The most common matters are:

Unfair dismissal claims – these claims consider whether your dismissal was harsh, unjust or unfair. You need to meet certain criteria to lodge – such as your length of service and type or pattern of employment.

General protections claims are about the reason why you are dismissed – for example, if you were dismissed for raising a workplace right, or because you were discriminated against.

[remember that there are only 21 days from the date of dismissal to file either claim involving dismissal – read our fact sheet on unfair dismissals here]

Secondly, consider what kind of outcome you are after. For example, monetary outcomes from general protections are higher but it is a long process to see this through to Court. Unfair dismissals have different limits on available compensation but generally are a more informal process. Consider how much time you want to invest in pursuing an outcome. Read some material, and get some advice.

 

Tip #2: Filling in the application: keep it simple and to the point

  • The forms are structured to ask you questions, to help you check your eligibility and to help you check you have covered the important points.
  • Explain what happened in chronological order but keep it relevant. Include what happened, and who was involved. Dot points rather than huge slabs of prose are best. Respond to the questions (if you’re unsure, just try your best) – you will get a later opportunity to explain your position and provide further materials.
  • Attach any relevant documents, for example, a contract of employment, termination letter, warning letters, or a medical certificate.
  • Applications can be lodged online, in person or via mail. Applications are not considered lodged until they are received by the Commission so be mindful of postage times – you will need to allow time within the 21 day time limit for lodging an unfair dismissal or general protections claim.

 

Tip #3: Know your terms, and know the players

Here are some common terms with which you should familiarise yourself.

Applicant – Who made the complaint (or started the proceeding) – This is normally you.

Respondent – Who the complaint is against – This is normally the employer

Commission Member – The independent Commissioner or Deputy President of the Fair Work Commission who will conduct the conference or hearing. Call them ‘Commissioner’ or ‘Deputy President’ unless they suggest otherwise.

Conciliator – There are two types of conciliators. Normally the first conciliation will be conducted by a staff member of the Commission, who often have legal training. Second conciliations (which are done if the first conciliation has failed, or if there is another reason such as a jurisdictional objection) may be conciliated by Member of the Commission. This is called a Member Assisted Conciliation.

Conciliation conference – Conciliations are an ‘off the record’ discussion where the Commission member normally tries to identify strengths and weakness of each party’s case, and considers what remedies might be awarded and then facilitates a discussion to try and get the parties to agree a basis to settle their differences without the time, cost and delay of a hearing.

Conciliations can be conducted on the phone or a Video Conference, and sometimes in person.  No records are kept if the matter does not resolve. If a settlement is agreed it will normally be documented and/or recorded.

About 80% of cases settle by the end of conciliation.

Directions Hearing – This is normally conducted on the telephone and usually occurs after conciliation has failed.  The purpose of the Directions Hearing is for the Commission Member to determine the date, length (based on number of witnesses) and mode of Hearing (phone, video conference or in person) and deadlines for you to lodge your material.  Make sure you bring your diary with you.

This is also an opportunity for you to ask questions about the process or ask for a second Conciliation if you still think the matter could be resolved.

Directions – Directions are the instructions from the Commission Member. They are normally sent to you in writing by email. They set out important timelines and instructions for your matter. Read them carefully and make sure you comply, or you may be disadvantaged.

The Directions normally contain links to information sources that will assist you understand and/or prepare your case.

Member’s Associate – Each Member of the Commission has an assistant called a Member’s Associate. You can ring the Member’s Associate if you have questions; they regularly deal with questions from unrepresented parties, but cannot provide you with legal advice.

 

Tip #4: Copy in the other party in all your Correspondence with the FWC

  • All of your communications with the Commission (and replies) must be also sent to the other party (ie Respondent or Employer). If you don’t, the Commission Member may forward it to the other side. Don’t send material to the Commission if you do not want it to be sent to the other side.
  • This is done because the hearing process is transparent and both parties are treated fairly. The Commission Member will not normally communicate with a single party (unless the other party doesn’t turn up to a hearing).
  • This rule does not apply during a conciliation – when speaking to a Commissioner privately in a conciliation, you can tell the Commissioner something that might assist the Commissioner’s understanding of your case, and you can specify that you don’t want them to pass that information on to the other party.

Preparing for conciliation

Conciliation is the opportunity for parties to resolve the matter. It is usually the first stage in most cases (although jurisdictional objections may be heard first in some cases).

Tip #5: Be prepared!

  • Know your case, and prepare some notes to help you during conciliation.
  • Reflect on the employer’s response to your claim – be prepared to be ready to deal with any issues raised in the response.
  • Prepare a chronology of events that includes party names and job titles to help explain your case.
  • Put together a proposal to resolve the matter, so you are not put on the spot when negotiating in the conciliation.
  • Be prepared to suggest a resolution when you are asked. Prepare your proposed resolution by having a look at the material on the Commission website to help you decide what might be a reasonable outcome.

Tip #6:  Know the process

  • Understand the conciliation process. It is confidential and off the record. This is often referred to as being conducted on a “without prejudice basis” – this means that it is conducted in private, and nothing that is said in the conciliation can be referred to in future proceedings. The only exception is if a resolution is agreed upon.
  • You can have a support person – this person can give you moral support and have a discussion with you, as you will need to make decisions as you go.
  • Be in a suitable location and be ready to start on time.
  1. Listen to the conciliator. They are impartial and they have no “skin in the game”. They are there to assist the parties assist a resolution in their own best interests.
  2. They will generally do an introduction about the process, with an opportunity for you to ask questions.
  3. The conciliation will then ask the Applicant (you) to summarise your case and set out your proposal for resolution. The conciliator will ask the Respondent to do the same thing – they will explain their side of the case. The conciliator may make a comment on the strength or weakness of your respective cases (especially if it is a Member Assisted Conciliation).
  4. Then the conciliator will speak to each party separately and privately. The conciliator act as an intermediary to help negotiate an outcome between the parties.
  5. If a resolution is reached, the conciliator will bring the parties back together to read through the resolution to make sure both parties agree.

Resolutions: By default, the agreement you reach in a conciliation is immediately a legally binding and enforceable contract.

  • If one of the parties is unrepresented, there may be an option cooling off period of 3 business days.
  • A cooling-off period does NOT apply in a General Protections conciliation.
  • Resolutions are recorded in a Terms of Settlement. This documents the agreement for future reference. The conciliator may draft it, or one of the parties may do so.
  • If in doubt, seek clarification from the Conciliator/Member.

During the conciliation

Tip #7: Tell your story

  • This is your chance to be heard and get your version of events across. Concentrate on the things that really matter – use your time well, and get your point across as quickly and clearly as you can.
  • Summarise your case and highlight your main points (for example, why your dismissal was unfair).

Tip 8#: Stay focussed on an outcome

  • Remember that the Conciliator or Member are used to hearing different views from parties. Just because your employer says something that you disagree with, don’t assume that conciliator believes it. They understand that most facts are in dispute.
  • Don’t interrupt other people. Write down questions or points you would like to clarify or refute.
  • Try to stay calm and focussed on reaching an outcome, rather than defending every point.
  • Be pragmatic and realistic. Only proceed to the next stage (a hearing) if that is in your best interests and you have the capacity to run such a case. Resolving at conciliation enables you to control the outcome, minimises your stress, anxiety and expense.

Preparing for Hearing

Tip #9: How to get your evidence together:

The Commission Member has to determine what happened. They do that by looking at the evidence presented by both parties.

Evidence = You will be asked to present your evidence in a Statement of Evidence. This is a summary of the evidence that you, and anyone else that you bring, will give in support of your case.

  • Stick to the facts (what you have seen, heard or said directly).
  • You will normally be your own key witness. Make sure you explain all the relevant facts. Go through the facts in a chronological order and include all the information that you have.
  • When there is a dispute about what did or didn’t happen, think about whether there is any other evidence to support what you say, such as other witnesses, CCTV footage, or documents like text messages or emails.
  • Unless you are an ‘expert’ in a particular field, try not to give your opinion.
  • Other witnesses must have direct relevant knowledge of the facts – they have heard, seen or said something themselves, not heard it from a friend! Hearsay is when you do not know the information yourself and rely on someone else.
  • If you are relying on medical evidence, it normally needs to be supported by evidence from a medical expert.
  • Write down your evidence in single numbered paragraphs, with one topic per sentence. Attach documents to your statement if you have material to reference not it in your statement. For example:
  1. I was employed as a Tradesperson on 1 January 2020.
  2. I was given a Contract of Employment. This is attached at A1.

Submissions  – this is where you apply the law to your facts and say why you have been treated unfairly.

  • You may find a statement of the law in one of the Commission’s ‘Benchbooks’. These are very useful resources summarising the law, and are available on the Commission’s website.
  • Tell the Commission Member why your evidence should be preferred and why the Commission Member should rule in your favour.
  • Break it up into numbered paragraphs with one topic per paragraph. Less can be more!
  • File your evidence and submissions (preferably by email) on time and send a copy to the other side.

Tip #10:  Take advantage of the resources on the Fair Work Commission website

  • There are many useful guides on the Commission website that can assist you preparing for Hearing, such as what to expect, how to conduct yourself, and possible outcomes.
  • Read the Benchbooks. The Benchbooks are handbooks to help you understand Fair Work legislation. They explain how the Commission has interpreted the legislation in previous cases to make decisions.
  • There are also templates available on the website, for example, documents you will need to file in an unfair dismissal hearing.
  • If you get stuck you can call the Members Associate. Remember, they cannot give you legal advice but can tell you where to look for information.

 

 

For further information on conciliations, read our Conciliation Conference Information fact sheet

The Protective Power of Job Security

Please note that this is general information & may not be relevant to your particular matter. This podcast/webinar recording should not be taken as legal advice.

Can you really report instances of sexual harassment in your workplace when you risk losing your job?  How does job security help to protect workers from sexual harassment and gendered violence?  

Listen to: The Protective Power of Job SecurityOur guest speakers will discuss how violence against women is linked to casualisation and how we can prevent violence by increasing access to job security.  

 

Our panellists: 

Senator Sarah Hanson-Young: Senator for South Australia. 

Tanya Hosch: 2021 South Australian of the Year, and the Executive General Manager of Inclusion and Social Policy at the AFL. 

Gemma Beale: Writer and a PhD Candidate at Flinders University, with a focus on insecure work and a passion for economic justice. 

 

This event is possible due to a grant from the Government of South Australia, Department of Human Services, as part of the COVID-19 National Partnership – Domestic Violence Funding.

We acknowledge that this event will be held on Kaurna land and we pay our respect to the traditional custodians of the land, past and present. Sovereignty was never ceded. 

 

About the topic:  

CONTENT NOTE: this event will involve a discussion on sexual harassment, domestic and family violence and sexual assault.  

The Respect@Work Report (2020) outlines that 1 in 3 Australians have experienced sexual harassment at work, ranging from serious offences like sexual assault and rape to inappropriate comments and sexist slurs.  

At the Working Women’s Centre, our staff regularly provide advice and support for workers who have experienced workplace sexual harassment. Many of these workers are working in insecure jobs, such as casual or fixed-term contracts.

Our staff have observed that workers are often unable to resist or report sexual harassment due to the risk of losing their job. Gender inequality is proven to be the most significant driver of violence against women and workplace sexual harassment. We have the opportunity to prevent violence by collectively working to increase access to job security.   

The Working Women’s Centre is proud to hold a panel event about job insecurity and its connection with gendered violence. In this event, we will hear from three fantastic speakers, each sharing their personal experience and expertise on the topic. The event is also the launch of a new project to improve job security as a protective factor against violence.  

 

Babies, Bosses and the 9-5 – a webinar on parental leave, childcare and flexible working arrangements

Please note that this is general information & may not be relevant to your particular matter. This webinar should not be taken as legal advice.

In the first 12 years of their child’s life, most women’s careers, finances and ability to participate in the workplace is seriously undermined by the rolling inequities in law and public policy about parenting and family.

The Working Women’s Centre SA invites Professor Rae Cooper and Associate Professor Elizabeth Hill, two pre-eminent experts in the world of women, family, and work, to discuss how public policy and legislation effects women, work, and families.

We will discuss the big-ticket public policies that rule the first 12 years of parenting:
  • Parental leave;
  • Childcare; and
  • Flexible working arrangements
We are going to examine these public policies and laws and ask the following questions:

  • Why do women end up with the biggest share of parenting responsibilities in most families?
  • Why is childcare so hard to access? Why is it so expensive?
  • Why are women still made to feel like they must choose between having a career and having kids?
  • Why is it that it’s mostly women taking parental leave?, What rights do we have and how can we improve the system?
  • What is holding us back from universal access to parental leave? How do we ask men to share the leave and parenting responsibilities?
ABOUT OUR PANELISTS
Associate Professor Elizabeth Hill
Elizabeth Hill is Associate Professor in political economy at The University of Sydney. Elizabeth is the Deputy Director of the new Gender Equality in Working Life Research Initiative at The University of Sydney and co-convenor of the Australian Work and Family Policy Roundtable. As a leading researcher on the future of women, work and care in Australia and the Asian region, she has collaborated on research into gender equality, work and care with leading national and international institutions, including the International Labour Organisation and UN Women. Elizabeth has served as a non-executive director on a number of non-profit Boards and is an experienced media commentator and advisor to government, unions, and business.
Professor Rae Cooper, AO
Rae is Professor of Gender, Work and Employment Relations at the University of Sydney Business School. She is Director of the newly formed University of Sydney Gender Equality in Working Life Research Initiative and is co-Director of the Women, Work and Leadership Research Group. Rae is President Elect of ILERA, is a past President and Executive member of AIRAANZ and is currently an editor of the Journal of Industrial Relations. Rae has published over 60 articles and chapters on industrial relations policy and legislation, trade unionism and collective bargaining, and women’s working lives. Her work has been funded by the Australian Research Council, state and federal government agencies, businesses and unions. Rae is known for her collaboration with labour market stakeholders having collaborated on research projects with key organisations including the AICD, ACTU, NSW Law Society, and the SDA. Rae has significant experience as a member of government and community sector boards and committees and has previously been a Director of the NSW TAFE Commission Board, Chair of the Board of Directors of Hearing Australia, Chair of the NSW Premier’s Expert Advisory Council on Women, and Chair of the NSW Working Women’s Centre. Rae was made an Officer of the Order of Australia in 2019 in recognition of her contributions to Australian higher education and workplace policy and practice.

Employment Law 101 Small Business Webinar X Hen House co-op

Please note that this is general information & may not be relevant to your particular matter. This webinar should not be taken as legal advice.

Created and hosted in partnership with Hen House Co-op based in South Australia, we are proud to present this webinar that has been designed to help women running their own small businesses feel confident in employing others fairly and legally.

This webinar will cover:

– Types of workers and employment
– Fair pay and entitlements;
– Where to find pay rates
– Superannuation – How much and when?
– Record keeping and pay slips
– Fair disciplinary process
– National Employment Standards
– Ending employment

LGBTIQA+ Legal Rights and Protections Webinar

Please note that this is general information and may not be relevant to your particular matter. This webinar should not be taken as legal advice.

Have you experienced discrimination based on your gender or sexuality? Have you had trouble accessing Centrelink? Would you like to be more aware of your rights?

This webinar will help you learn about your LGBTQI+ legal rights and protections.

This webinar was created by the Working Women’s Centre South Australia, Westside Lawyers and UC Law Centre, and covers welfare rights, Centrelink issues and workplace rights with a focus on discrimination. This webinar was originally streamed as part of Adelaide’s Feast Festival in 2021.

We acknowledge that this event was streamed on Kaurna land and we pay our respect to the traditional custodians of the land, past and present. Sovereignty was never ceded.

Small Business Industrial Relations Seminar: in the South Australian Hospitality Industry

Please note that this is general information & may not be relevant to your particular matter. This webinar should not be taken as legal advice.

In this webinar Industrial Officer Lungaka Mbedla from the Working Women’s Centre SA Inc presents an overview of the common workplace issues in the hospitality industry in South Australia. Presented with the South Australian Restaurant and Catering Association with:

  • Alex Blanco, Restaurant and Catering Association
  • Brendon Zhu, Senior Advisor of Industrial Relations Restaurant and Catering Association
  • Sarah Lithgow, Employment Safety and Workers Compensation team at Wallmans Lawyers
  • Greg Hobby, Chair of the Tourism and Industry Council South Australia

Workplace Checkup: SACOSS X WWC SA

The Workplace Check-Up webinar aims to give you the tools to make sure your workplace is safe, healthy and an environment in which your employees can thrive. The workshop will cover:

  • workplace equity and respect
  • dealing with workplace bullying and harassment
  • fair supervision and disciplinary processes
  • fair dismissal and redundancy processes.

 

This event was originally presented Thursday 24th June 2021, in partnership with SACOSS 

Working from home: Risks and Rewards

There have been many claims that Working from Home (WFH) will spearhead a feminist revolution, likening the change in our work environment to the structural changes we saw for working women during and after WW1.

These sorts of claims elicit many questions;

  • Is this a positive change?
  • Does WFH finally give women the flexibility we have been fighting for?
  • How do we navigate WFH when our own home is not safe?
  • What about work, health and safety? What about the costs of running a home office?
  • Will WFH be optional in the future? Should it be? Will more time in the home, increase our care work?
  • What types of workers get to WFH? Do you have to let your employer into your home? Will work hours increase? What on earth are we doing about childcare?

There are no simple answers, and as always it depends; not every person has the opportunity to WFH or experiences WFH equally. Can we re-imagine work, so that is works for us?

To keep this conversation going and maybe answer some of these questions, the Working Women’s Centre SA Inc is proud to host:

Working from Home: Risks and Rewards: An online panel conversation about gender and labour, while working from & in the home.

 

PANELLISTS:

  • Alison Pennington – Senior Economist for the Centre for Future Work
  • The Hon Michelle Lensink MLC – Minster for Human services in South Australia
  • Professor Suzanne Franzway – Emeritus Professor of Sociology and Gender Studies University of South Australia
  • Maria Hagias – Chief Executive Officer of Women’s Safety Services SA
  • MC – Abbey Kendall – Director of The Working Women’s Centre SA Inc.

Your Rights At Work – A Webinar for International Students in Australia

The Working Women’s Centre has teamed up with National Union of Students Welfare Department, (FUSA Flinders University Student Association, USASA UniSA Student Association, Adelaide University Student Representative Council, Adelaide Young Christian Workers – YCW & The Young Workers Legal Service to present:

Your Rights at Work – Free webinar training for International Students in Australia

This free webinar is designed for international students studying in Australia, providing them with skills and resources to better equip them to assert their rights in the workplace and to fight exploitation.

We recognise that many international students are working casually, often well below the minimum wage and can be at greater risk of exploitation by their employer.

We also know that as the South Australian economy opens up, there will be greater competition for jobs and employers trying to cut corners.

Our team of experts will leave you with a better understanding of the Australian workplace laws and some ideas about how to address unfair treatment in your own workplace.

  • The webinar will help answer some of your questions such as:
  • What are my basic workplace entitlements?
  • What should I expect from my employer?
  • I am being underpaid, what do I do?
  • What rules does my employer have to follow? What about me?
  • Where can I get more information?
  • I have been working more than 20 hours a week, can I still complain?

Wage Theft in SA

Wage Theft in South Australia is an epidemic. The McKell Institute estimates that wage theft is costing South Australian workers $500 million a year.

The Working Women’s Centre SA recovered over $500,000 for workers in just one financial year. While this is a great achievement, it is only a fraction of what is owed to hard working South Australians. We know, more than most, that wage theft is hitting women and migrant workers the hardest.

Wage theft extends to the non-payment of base wages, penalty rates, superannuation, loadings, and the non-payment of entitlements that workers should be receiving by law. In some sectors of the economy, wage theft has transitioned from a fringe activity to a business model.

This is an issue for workers and the government. In fact, the South Australian Parliamentary Wage Theft Interim Report confirms what we already knew: wage theft is rife in South Australia and it affects the most vulnerable workers in our community.

We gave evidence to the Wage Theft Inquiry about one of our clients who was only paid $14 an hour. How can you live on $14 an hour? You can’t. It isn’t a living wage.

In response to the Interim Report, we are holding a community discussion about the prevalence of wage theft to kick start South Australia’s response to this issue.

There are big questions at hand:
• Should we follow Victoria’s lead and criminalise wage theft?
• Is our industrial system is too complex?
• How does wage theft impact on working women? And is this impact due to a common business model?
• What are trade unions doing about this issue? And how do we campaign for a living wage?

We are thrilled to host Irene Pnevmatikos MLC, Edward Cavanough from the McKell Institute and Angas Story from SA Unions to tackle those issues and more.

We acknowledge that this event will streamed from Kaurna land and we pay our respect to the traditional custodians of the land past, present, and emerging. Sovereignty was never ceded

Young Women & COVID19

The impact of COVID19 on young women has been devastating.

  • The pandemic has hit every aspect of our lives:
  • Financially, through job losses or reduced hours
  • Insecurity in current employment & long term career trajectory
  • Safety risks of exposure to COVID and risk of DV & sexual violence
  • An increased risk of homelessness
  • The toll on our Mental Health

 

When it comes to getting work, young women are in a worse position than any other age and gender demographic. So it’s important to question: are our needs reflected in COVID recovery policies? In this seminar, we will discuss the impacts of COVID19 on young women, what needs to happen to stop us from being left behind, and how to turn our anger into action. Several powerful young women will join us to share their thoughts and experiences.

 

Speakers:

  • Alison Pennington, Senior Economist at the Centre for Future Work
  • Siew Tang Woon, 485 working visa worker at the Adelaide Casino
  • Claudia Ienco, casual worker and part of Anti-Poverty Network SA
  • Jamila Ahmadi of the Australian Migrant Resource Centre
  • Kate McAuley, primary school teacher

 

There will be an Q&A session and opportunities to provide your input into the discussion. We acknowledge that this event will stream from Kaurna land and we pay our respect to the traditional custodians of the land, past, present and emerging. Sovereignty was never ceded.

 

This webinar is part of the Working Women’s Centre youth project that is funded by the Government of South Australia – Department of Human Resources.

Reclaim the workplace

October is sexual violence awareness month, and Reclaim the Night is a march that is traditionally held on the last Friday of October, to reclaim the streets so that women can walk at night without fear. This October, we gathered online to talk about reclaiming the workplace by ending sexual violence and harassment. We were joined by a panel of expert speakers to discuss what sexual harassment looks like, the extent of the problem in Australia, and what we can do to end sexual violence and harassment in our places of work and study.

 

Speakers:

  • Kate Jenkins, Sex Discrimination Commissioner
  • The Hon Connie Bonaros MLC, SA Best
  • Rebecca Etienne, Adelaide University SRC Women’s Officer
  • Erin Hennessy, CEPU Organiser

 

Artwork by Cath Story. Find her art on Instagram @cathstorydraws

 

This webinar was streamed on Kaurna land. We pay our respect to the traditional custodians of the land, past, present and emerging. Sovereignty was never ceded.

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