Fair Work Australia Rules 2010

Part 1 General

1 Name of Rules

These Rules are the Fair Work Australia Rules 2010.

2 Commencement

These Rules commence on 1 January 2011.

3 Definitions

In these Rules:

Act means the Fair Work Act 2009.

FWA means:

(a) Fair Work Australia; or

(b) an FWA Member; or

(c) a Full Bench of FWA; or

(d) a person holding a delegation from the President or the General Manager to perform the act or function concerned;

as the context requires.

FWA Bulletin means the publication, prepared and published by the General Manager of FWA, that sets out:

(a) notices required by these Rules to be published in that Bulletin; and

(b) other information concerning notice of matters before FWA or the practice and procedure of FWA.

Regulations means the Fair Work Regulations 2009.

RO Act means the Fair Work (Registered Organisations) Act 2009.

RO Regulations means the Fair Work (Registered Organisations) Regulations 2009.

Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

WR Act means the Workplace Relations Act 1996.

Note The Fair Work Act 2009 defines other words and phrases that apply to these Rules, including:

Note: General Manager.

4 Relief from Rules

FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.

5 Directions on procedure

5.1 If a person seeks to commence a proceeding or take any step in a proceeding, and:

(a) the procedure to be followed is not prescribed by the Act, the Regulations, these Rules or by or under any other Act or Regulations; or

(b) the person is in doubt as to the correct procedure to be followed;

the person may apply to FWA for directions regarding the correct procedure to be followed.

5.2 Any act taken in accordance with a direction of FWA given in response to an application under subrule 5.1 is regular and sufficient.

6 Forms

6.1 Schedule 1 is a table of the forms contained in Schedule 2.

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

6.3 Subject to rule 24, an application to FWA for which no specific form is provided must be made using Form F1.

6.4 If these Rules require that a form be used, it is sufficient compliance if the document:

(a) is substantially in accordance with the required form; or

(b) has only such variations as the nature of the case requires.

6.5 Forms F55 to F70 are approved forms for the purposes of the RO Regulations.

7 Lodging documents with FWA

7.1 A document lodged for use by FWA must:

(a) either:

(i) be on white international A4 size paper; or

(ii) if the document is being lodged by email — have an A4 page layout; and

(b) be typewritten, clearly written or reproduced.

7.2 A document may be lodged with FWA:

(a) by physically delivering the document to a FWA office between the hours of 9am and 5pm; or

(b) by email (see rule 20); or

(c) by fax (see rule 21); or

(d) if FWA has made provision on its website for lodging a document by completing and submitting a web-based form — by completing and submitting that form in accordance with the instructions accompanying the form on the website.

Note 1 FWA’s website is http://www.fwa.gov.au. The addresses of FWA offices can be found at http://www.fwa.gov.au/index/cfm?pagename=headercontact.

Note 2 An application for an unfair dismissal remedy may also be made by phone (see rule 14).

7.3 The first page of a witness statement, statutory declaration or submission that is lodged with FWA must be headed in the following form:

Matter No.: [insert matter number]

Applicant: [insert name of applicant]

Respondent: [insert name(s) of respondent(s)]

or, if there is no respondent:

Matter No.: [insert matter number]

Re Application by: [insert name of applicant]

7.4 The first page of a witness statement, statutory declaration or submission lodged with FWA must also have an information block at the foot of the first page in the following form:

8 Requirement to serve documents lodged with FWA

8.1 A person who makes an application or gives a notice to FWA must serve a copy of the application or notice in accordance with the instructions as to service on the form for the application or notice.

8.2 If an application is made using Form F1, the applicant may seek directions from FWA as to the service that is required.

9 How service is effected

9.1 Subject to these Rules, and any directions of FWA, a party that is required to serve a document on another party, or other parties, to a proceeding must serve the document as soon as practicable.

9.2 Service of a document on an individual, a body corporate or an organisation or branch of an organisation must be effected:

(a) by leaving the document with:

(i) the individual to whom it is addressed; or

(ii) the secretary of the body corporate; or

(iii) the secretary of the organisation or branch; or

(b) by tendering the document to:

(i) the individual to whom it is addressed; or

(ii) the secretary of the body corporate; or

(iii) the secretary of the organisation or branch; or

(c) by leaving the document:

(i) with an individual, apparently above the age of 15 years, at the residence, or usual place of business, of the individual who is intended to be served; or

(ii) at the registered office of the body corporate; or

(iii) at the office of the organisation or branch; or

(iv) in a proceeding in which the individual, body corporate or organisation or branch has notified an address for service — at that address; or

(d) by posting the document in a prepaid envelope sent by Express Post or registered post to:

(i) the residence, or usual place of business, of the individual intended to be served; or

(ii) the secretary, at the registered office of the body corporate; or

(iii) the secretary, at the office of the organisation or branch; or

(iv) in a proceeding in which the individual, body corporate or organisation or branch has lodged an address for service — at that address;

provided that if service is by Express Post, the party serving the document must retain the barcode of the pre-paid envelope and produce it if required by FWA; or

(e) by fax to a fax number:

(i) currently published by the party who is being served as his, her or its fax number; or

(ii) advised by the party who is being served as his, her or its fax number in response to a request for a fax number that was made immediately before the transmission of the document; or

(iii) appearing as the fax number of the party who is being served on a document lodged with FWA by that party in the same matter;

provided that a transmission record showing the successful transmission is retained and produced if required by FWA; or

(f) by emailing the document to an email address:

(i) currently published by the party who is being served as his, her or its email address; or

(ii) advised by the party who is being served as his, her or its email address in response to a request for an email address that was made immediately before the transmission of the document; or

(iii) appearing as the email address of the party who is being served on a document lodged with Fair Work Australia by that party in the same matter;

provided that the party who is serving the document:

(iv) prints the email as a “sent item”, showing the transmission address and the date and time of transmission; or

(v) prints a “delivered” statement or a “read receipt” showing the transmission address and the date and time of transmission;

and that the document so printed is retained and produced if required by FWA; or

(g) if:

(i) the person to be served is an employee of the party who is serving the document; and

(ii) a common form of communication between the employer and the employee is by email to a particular email address; and

(iii) it is reasonable for the employer to expect that an email to that email address will be received by the employee;

by emailing the document to that email address, provided that the employer:

(iv) prints the email as a “sent item”, showing the transmission address and the date and time of transmission; or

(v) prints a “delivered” statement or a “read receipt” showing the transmission address and the date and time of transmission;

and that the document so printed is retained and produced if required by FWA.

9.3 For subrule 9.2:

registered office, in relation to a body corporate, means the principal office or the principal place of business of the body corporate.

secretary, in the case of a body corporate that is established under a law of the Commonwealth or of a State or Territory of the Commonwealth, means the secretary, clerk or other proper officer of the body corporate.

9.4 For section 29 of the Acts Interpretation Act 1901, if service of a document is effected by posting it in accordance with paragraph 9.2 (d), a certificate:

(a) signed by:

(i) a person occupying, or performing the duties of, the office of a General Manager, Australian Postal Corporation; or

(ii) a person authorised in writing by that person to give a certificate under this subrule; and

(b) stating that a letter that was posted (with prepaid postage) at a specified time, on a specified day and at a specified place, and addressed to a specified address, would, in the ordinary course of the post, have been delivered at that address on a specified day;

is evidence of the facts stated.

10 Substituted service

If provision is made for personal, or other, service of a document in a proceeding before FWA, FWA may, on the application of a party, make an order for substituted, or other, service by letter, fax, email, public advertisement or another method, for the purpose of bringing the document to the notice of the person to be served.

Note The form of an application for substituted service is Form F49 in Schedule 2.

11 Electronic signatures

If a document, other than a statutory declaration, is required by these Rules to be signed, the requirement is satisfied if a facsimile of the signature is affixed on the document by electronic means by, or at the direction of, the signatory.

Part 2 Appeals and reviews

12 Appeals

12.1 A party seeking to institute an appeal against a decision of a single FWA Member (or a person exercising a delegation from the President or the General Manager) must do so by lodging a notice of appeal in accordance with Form F7.

12.2 If an appeal is instituted against a decision of a single FWA Member, the appellant, at the time of lodging the notice of appeal, must also lodge 3 copies of the notice, together with 3 copies of a paginated appeal book containing:

(a) any order made by FWA; and

(b) the statement of the reasons for the decision; and

(c) the transcript of the evidence and argument in the proceedings from which the appeal is brought, or the relevant extract from the transcript; and

(d) each document that:

(i) was an exhibit or written submission in the proceedings; and

(ii) relates to the grounds of appeal set out in the notice.

12.3 An appeal must be instituted:

(a) within 21 days after the date of the award, order or decision appealed against; or

(b) on application to FWA — within such further time as is allowed.

12.4 On lodging a notice of appeal, the appellant must, as soon as practicable, serve a copy of the notice of appeal and the appeal book lodged in accordance with subrule 12.2 on the other parties to the proceedings from which the appeal is brought.

13 Review on application by Minister

The procedure to be followed in an application under section 605 of the Act must be generally in accordance with the procedure prescribed by rule 12.

13A Other reviews

If legislation confers on FWA a jurisdiction to review a decision made by a decision maker other than FWA (or a person exercising a delegation from the President or the General Manager), and the legislation does not specify a time within which the review must be instituted, a person aggrieved who seeks a review of the decision must file an application for review, using Form F1:

(a) within 21 days after the date of the decision; or

(b) on application to FWA — within such further time as is allowed.

Part 3 Unfair dismissal

14 Applications may be made by telephone

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signs and returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

Note 1 The telephone number approved for making an application for an unfair dismissal remedy by telephone can be found on FWA’s website at:

Note 2 The written application generated by FWA, and any application for waiver of the fee, will be sent by FWA to the person who makes a telephone application under this rule.

Note 3 A telephone application will not be accepted unless the requirement in (a) is complied with. An application made under this rule will not be further processed by FWA until the requirement in (b) has been complied with.

14A Employer response to an application for an unfair dismissal remedy

A respondent to an application for an unfair dismissal remedy (Form F2) must lodge with FWA and serve on the applicant a response to the application in accordance with Form F3 within the time specified by, or directed in correspondence from, FWA.

15 Objection to an application for unfair dismissal remedy

A respondent to an application for an unfair dismissal remedy who wishes to take a jurisdictional or other objection to the application must:

(a) indicate the objection or objections in the Employer’s Response to Application for Unfair Dismissal Remedy (Form F3) that was lodged by the respondent; or

(b) if the objection is, or the objections are, taken at a later time — lodge an Objection to Application for Unfair Dismissal Remedy using Form F4.

Note 1 Information about the grounds upon which a respondent can object to an application for unfair dismissal remedy can be found on FWA’s website at:

Note: http://www.fwa.gov.au/index.cfm?pagename=dismissalprocess.

Note 2 This rule is not concerned with an objection that the dismissal was fair but, rather, with objections that may need to be considered and determined separately before a conference or hearing on the merits of the application.

16 Security for the payment of costs

16.1 FWA may, on application, make an order directing a person to furnish security for the payment of costs in respect of a matter or part of a matter arising under Part 3-2 of the Act.

Note FWA will not ordinarily make such an order before the conclusion of conciliation.

16.2 The security must be of such amount, and furnished at such time and in such manner and form, as FWA directs.

16.3 FWA may, on further application:

(a) reduce or increase the amount of security directed to be given; and

(b) vary the time at which, or manner or form in which, the security is to be furnished.

16.4 Without limiting any other power which FWA may exercise, if FWA directs a person to furnish security for costs in respect of a matter or part of a matter arising under Part 3-2 of the Act, it may order that the matter be:

(a) adjourned until security is furnished; or

(b) adjourned indefinitely.

Part 4 General protections applications

16A Employer response to a general protections application

A respondent to an Application for FWA to Deal with a General Protections Dispute (see Form F8) must, within 7 days of being served with the application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F8A.

Part 4A Unlawful termination applications

16AA Employer response to an unlawful termination application

A respondent to an Application for FWA to Deal with an Unlawful Termination Dispute (see Form F9) must, within 7 days of being served with the application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F9A.

Part 5 Take-home pay order applications

16B Employer response to a take-home pay order application

16B.1 A respondent to an Application for a Take-home Pay Order (Individual Employee/Outworker) (see Form F47A) must, within 14 days of being served with the application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F47B.

16B2 A respondent to an Application for a Take-home Pay Order (Multiple Employees/Outworkers) (see Form 47C) must, within 14 days of being served with the application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F47D.

Part 6 Practice

17 Notice of representative commencing or ceasing to act

17.1 A person who commences to act as a solicitor, paid agent or other representative of a party to a matter already before FWA must lodge a notice in accordance with Form F53.

17.2 Subject to section 596 of the Act, FWA may permit a person to represent a party in a matter before FWA despite the person’s failure to lodge a notice in accordance with subrule 17.1.

17.3 A person who ceases to act as a solicitor, paid agent or other representative of a party to a matter before FWA must lodge a notice in accordance with Form F54.

17A Representation other than at conference or hearing

17A.1 For section 596 of the Act, and subject to a direction by FWA to the contrary, a party to a proceeding before FWA may be represented by a lawyer or paid agent for the purpose of preparing and/or lodging any written application (including an originating application) or written submission, corresponding with FWA or lodging any document with FWA.

17A.2 To remove doubt, nothing in this rule is to be taken as permitting a lawyer or paid agent to represent a party in a conference or hearing before FWA.

Note See section 596 of the Act for when FWA may permit a lawyer or paid agent to represent a party at a conference or hearing.

18 Order to witness to attend

18.1 A party may seek an order under paragraph 590(2)(a) of the Act requiring a person to attend by submitting a draft order in accordance with Form F51 to FWA.

18.2 If the order is made, service of the order must be effected by serving a copy of the signed order in accordance with rule 9.

19 Order for production of documents

19.1 A party may seek an order under paragraph 590(2)(c) of the Act for the production of documents or records or any other information by submitting a draft order in accordance with Form F52 to FWA.

19.2 If the order is made, service of the order must be effected by serving a copy of the signed order in accordance with rule 9.

20 Lodging documents by email

20.1 Subject to subrule 20.2, a document that is required or permitted to be lodged by these Rules may be lodged by emailing the document to FWA to any email address that is approved by the General Manager for the lodgment of documents electronically.

Note The email addresses approved for lodgment of documents electronically can be found on FWA’s website at:

20.2 If a matter has been allocated to an FWA Member, any document lodged by email must be sent to the email address of the FWA Member’s chambers.

Note The email addresses can be found on FWA’s website at:

20.3 If a document is to be lodged by email under this rule, the email must:

(a) include the document to be lodged:

(i) as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and

(ii) with all security restrictions removed; and

(b) state, in the body of the email:

(i) the name, address, telephone number and fax number (if any) of the natural person sending the email; and

(ii) an email address to which FWA can send notices or other documentation; and

(iii) if the document is an originating application — that fact, together with the State or Territory office in which the document is to be lodged; and

(iv) if the document relates to an existing matter — the FWA matter number.

20.4 A statutory declaration that is required by these Rules may be lodged by email only by sending a PDF or other image of the statutory declaration in accordance with subrule 20.3.

Note A statutory declaration must be signed and witnessed.

20.5 If a document lodged in accordance with rule 20 is an application commencing a proceeding, the General Manager must send an acknowledgment of lodgment to the lodging party by email.

20.6 If a document lodged electronically in accordance with rule 20 is an application commencing a proceeding, it is taken not to have been lodged until the acknowledgment of lodgment mentioned in subrule 20.5 has been sent. When the acknowledgment is dispatched, the document will be treated as lodged at the time it was received electronically.

20.7 A person who lodges a document by email must:

(a) retain a paper copy of the document; and

(b) retain a paper copy of either:

(i) the receipt that indicates the document was delivered; or

(ii) the email as a “sent item” showing the transmission address and the date and time of transmission; and

(c) produce the paper copy of the documents retained under paragraphs (a) and (b), as directed by FWA.

21 Lodging documents by fax

21.1 A document that is required or permitted to be lodged by these Rules may be lodged by fax sent to the fax number that is approved by the General Manager for lodgment of documents by fax.

Note The fax numbers approved for lodgment of documents by fax can be found on FWA’s website at:

21.2 A document sent to FWA by fax must be accompanied by a cover sheet stating clearly:

(a) the sender’s name, postal address, document exchange number (if any), telephone number and fax number; and

(b) the number of pages transmitted; and

(c) the processing of the document required.

21.3 A person who lodges a document by fax under this rule must:

(a) keep the original document and the transmission report evidencing successful transmission; and

(b) produce the original document or the transmission report as directed by FWA or the General Manager.

21.4 If FWA or the General Manager directs that the original document be produced, the first page of the document must be endorsed with:

(a) a statement that the document is the original of a document sent by fax; and

(b) the date that the document was sent by fax.

Part 7 Miscellaneous

22 Seal of FWA

22.1 The seal mentioned in subsection 651(1) of the Act is in the form represented below:

View image in the official source

22.2 If a document is required to have the seal affixed, the requirement is satisfied if a facsimile of the seal is affixed on the document by electronic means, by or at the direction of the person affixing the seal.

23 Recovery of cost of providing copies of documents

23.1 This rule applies if FWA proposes to provide a copy or copies of a document to a person (whether in the form of photocopies, fax transmission, electronic data, printed documents or otherwise).

23.2 The person must pay to FWA in advance an amount that FWA reasonably requires to be paid.

Part 8 Transitional

24 WR Act applications

Any application that could have been made under the WR Act, and that may be made to FWA by virtue of a provision of the Transitional Act or any other Act or regulation, may be made in accordance with the Australian Industrial Relations Commission Rules 2007 using the form specified in those rules. The form must be varied to identify that the application is made to FWA and identify the provision(s) that authorise the making of the application.

Note 1 An application for FWA to deal with a dispute in accordance with a dispute resolution procedure in an agreement made under the WR Act must be made using Form F10.

Note 2 An application for FWA to vary a pre-reform award must be made using Form F47.

Part 9 Repeal

25 Fair Work Australia Rules 2009

The Fair Work Australia Rules 2009 are repealed.

Schedule 1 Table of forms contained in Schedule 2

(subrule 6.1)

Note: * Notes:

Note: FW Act means Fair Work Act 2009;

Note: FW (RO) Act means Fair Work (Registered Organisations) Act 2009;

Note: FW (RO) Regs means Fair Work (Registered Organisations) Regulations 2009;

Note: Transitional Act means Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;

Note: WR Act means Workplace Relations Act 1996.