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.