Fair Work Commission (Cth) 

20-30 minutes

A dedicated factsheet on the Fair Work Commission: its establishing Act, its unfair dismissal jurisdiction under the Selvachandran test, and its award/enterprise-agreement functions.

Learning level
Orientation
Jurisdictions
au-commonwealth
Subjects
employment-and-industrial-law
Topics
statutory-bodies-and-regulators, unfair-dismissal

Learning outcomes

  • State the Fair Work Commission's establishing Act and its tribunal (not enforcement) function.
  • Explain the 'harsh, unjust or unreasonable' test from Selvachandran v Peteron Plastics for unfair dismissal.
  • Distinguish the FWC's adjudicative role from the Fair Work Ombudsman's enforcement role.

Act: Fair Work Act 2009 (Cth).1

Established: 2009 (as Fair Work Australia; renamed the Fair Work Commission in 2013).

Purpose: The FWC is Australia's national workplace relations tribunal. It decides unfair dismissal and general protections claims, makes and varies modern awards, approves enterprise agreements, and deals with industrial disputes — an adjudicative and standard-setting body, not an investigator or prosecutor.

The "harsh, unjust or unreasonable" test

Unfair dismissal turns on whether a dismissal was harsh, unjust or unreasonable. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410,3 McHugh and Gummow JJ explained that these are distinct though often overlapping grounds: a dismissal may be unjust because the employee was not guilty of the misconduct relied on, unreasonable because it rested on inferences that could not reasonably be drawn from the material, or harsh in its consequences even where a valid reason existed. Treating the phrase as one composite test misses the point. On that valid reason limb, Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 3712 holds that "valid" means sound, defensible or well founded — never capricious, fanciful, spiteful or prejudiced.

Powers conferred under the Act

The FWC can order reinstatement or compensation for an unfair dismissal, arbitrate certain disputes, make and vary modern awards setting minimum pay and conditions by industry, and approve enterprise agreements. Its orders are directly enforceable, unlike the Fair Work Ombudsman's compliance notices, which depend on the FWO's own follow-up enforcement action if not complied with.

How it differs from the Fair Work Ombudsman

The FWC adjudicates individual claims and sets standards; the Fair Work Ombudsman investigates and enforces compliance more broadly. An unfair dismissal claim goes to the FWC; a suspected systemic underpayment is investigated by the FWO.

Self-check

  • Have I stated the "harsh, unjust or unreasonable" test as separate though overlapping grounds, citing Byrne, rather than treating it as one undifferentiated standard — and kept Selvachandran for the meaning of "valid reason"?
  • Have I distinguished the FWC's adjudicative function from the FWO's enforcement function?
  • Have I identified the FWC, not the FWO, as the body an employee applies to for unfair dismissal?

Pop quiz

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