Australia: Fair Work Australia

Last Updated: 17 August 2009
Article by Martin Dunne

On 1 July 2009 Fair Work Australia ("FWA") commenced operations administering the Fair Work Act ("the Act") workplace reforms. Together with the Fair Work Ombudsman ("FWO") FWA replaces the Australian Fair Pay Commission, Workplace Authority and Workplace Ombudsman and assumes most of the responsibilities performed by the Australian Industrial Relations Commission ("AIRC").

The AIRC, which remains in operation until the end of this year, will continue the award modernisation process and hear claims regarding unfair dismissals which occurred before 30 June 2009.

Members of the AIRC have been transferred to roles within FWA. Workplace Authority and Workplace Ombudsman staff have been transferred to roles within FWA and FWO.

Fair Work Australia in action

FWA has been quick to leave its mark since commencing operations with some of its most recent decisions dealing with issues including:

Access to records

  • Ordering MHB Building Services to allow the CFMEU to inspect and make copies of documents including records for payments made to workers, invoices, bills or accounts and documents, including contracts of engagement, recording amounts payable for work performed.

Good faith bargaining

  • Making a good faith bargaining recommendation between Flight Attendants Assn and Virgin Blue Airlines after the union applied for FWA to deal with a dispute about a proposed enterprise agreement.
  • Restraining Defries Industries Pty Ltd from conducting an industrial agreement ballot or take further action until it had complied with an order to attend meetings with the National Union of Workers ("NUW').

Industrial Action

  • Ordering Victorian paramedics to call off all industrial action "on the basis of probabilities rather than possibilities" that the public would be endangered if the action went ahead.
  • Upholding an application by CFMEU that a lockout of 12 striking workers by Diamond Protection was illegal and should cease.

Secret ballot orders

  • Extending a pre-July 1 secret ballot after the Australian Services Union applied under the transitional provisions giving FWA power to authorise industrial action as long as pre-July 1 laws on industrial action have been complied.
  • Ordering an Australian Electoral Commission secret ballot to determine majority support for good faith bargaining between Cochlear and Australian Manufacturing Workers Union.

Registration of organisations

  • Approving an application by NUW for rule changes that disband state branches and transfer responsibilities to a new federal branch.

Collective workplace agreement

  • Making an interim order preventing Australian Precast Solutions and Abigroup from proceeding with a ballot for a workplace agreement until an application by the CFMEU for a bargaining order is heard.
  • Inserting model flexibility and consultation terms into a workplace agreement covering ISS Facility Services workers.

Transfer of business

  • Applying new expanded transfer of business provisions in finding 5 transferring employees were covered by their new employers certified agreement rather than their old industrial instrument.

Functions of Fair Work Australia

FWA deals with matters traditionally handled by federal workplace tribunals including:

  • minimum wages and equal remuneration;
  • unfair dismissal and unlawful termination protections;
  • industrial action, right of entry and stand down;
  • National Employment Standards ("NES"), modern awards, enterprise agreements and workplace determinations;
  • transfer of business; and
  • enterprise bargaining disputes – FWA's role will now be greater owing to the introduction of good faith bargaining.

The new discrimination jurisdiction

The FWO has established a small unit to handle workplace discrimination matters under Section 351 of the Act which prohibits an employer from taking adverse action against an employee on the grounds of race, colour, sex, sexual preference, age, physical and mental disability, marital status, family or carer's responsibility, pregnancy, religion, political opinion, national extraction or social origin. The Act enables inspectors to investigate and seek a penalty.


FWA may only deal with disputes expressly authorised by the Act.

Unless expressly authorised by the Act, FWA cannot arbitrate a dispute, and is restricted to mediation, conciliation, recommendation or expressing an opinion.

FWA decisions may be appealed to the Full Bench of FWA (with permission or leave), if in the public interest and questions of law may be referred to the Federal Court.

The Federal Magistrate's Court and Federal Court will have Fair Work Divisions to exercise judicial functions arising from the Act.

Fair Work Ombudsman and Fair Work Inspectors

The FWO investigates and prosecutes breaches under the Act. Recent examples of successful prosecutions involving employers who failed to comply with workplace obligations include circumstances where:

  • nine teenagers were pressured to sign AWAs with reduced penalty rates;
  • a bakery failed to keep proper time and wages records with sufficient details to allow inspectors to determine whether former workers had been underpaid; and
  • migrants sponsored under 457 visas were underpaid.

Fair Work inspectors ("FWI") monitor compliance with the Act and instruments, enquire and investigate, commence court proceedings, represent employees in certain circumstances and have the following powers to:

  1. enter premises, without force, on the reasonable belief that the Act or instrument applies to work performed on the premises or there are records or documents relevant to compliance purposes on, or accessible from the premises;
  2. inspect any work, process or object and interview any person;
  3. require production of a record or document;
  4. inspect and copy any record or document kept on, or which is accessible from the premises;
  5. take samples of any goods or substances; and
  6. be accompanied by an assistant who cannot do anything that the FWI does not have power to do.

Although a person is not excused from producing a record or document on the ground of self incrimination, any evidence obtained is not admissible against the individual in criminal proceedings.

Enforceable undertakings and compliance notices

The FWO may accept a written undertaking given by a person who has contravened a civil remedy provision (unless the person has been given a compliance notice).

The FWI may give a notice requiring specified action to remedy the direct effects of a contravention of a NES, modern award, enterprise agreement, workplace determination, national minimum wage order or equal remuneration order and/or to produce reasonable evidence of compliance with the notice (unless the person has given an undertaking which has not been withdrawn).

The Federal Court, the Federal Magistrates Court or eligible State or Territory Court may enforce a written undertaking or review a compliance notice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Martin Dunne
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.