Fair Work Commission Rules 2024

Several key concepts underpin the operation of the Rules. Approved form means a form approved by the President under rule 9. Approved forms are publicly available on the FWC website and must be used for the purpose for which they are approved; if no form is approved for a particular application, the default form F1 (Application (no specific form provided)) must be used. Substantial compliance with an approved form is sufficient. A business day means any day other than a Saturday, Sunday, or public or bank holiday in the place concerned. The Rules treat Saturdays, Sundays, public holidays and bank holidays as countable days for the purposes of calculating time (rule 6(1)), but the Acts Interpretation Act 1901 section 36 extends periods so that the last day to do a thing does not fall on a non-business day. The general protections application is specifically defined as an application under section 365 or 372 of the Act for the FWC to deal with a dispute. The concept of a nominated representative (rule 11) allows a person to nominate a guardian, parent, lawyer, paid agent, an organisation, or a not-for-profit body that provides support, as their representative for an application or matter. Lodgment means filing a document with the FWC physically, by post, by email (rule 16), or using the FWC’s online lodgment facilities (rule 17). A document lodged by email or online is not taken to have been lodged until the General Manager sends an acknowledgment of lodgment; once sent, the application is taken to have been lodged at the time it was received electronically. Service refers to the provision of a copy of a lodged document to other persons, and the Rules specify detailed methods including personal delivery, leaving at an address, express or registered post, email, or through the FWC’s online facilities (rule 22). The FWC may also serve documents itself (rule 23). The FWC may order substituted service by letter, email, public advertisement, or other method (rule 24). A critical mechanism is the FWC’s power to dispense with compliance with any provision of the Rules, either before or after the occasion for compliance arises, and to make an order inconsistent with the Rules (rule 7). Any such order prevails over the Rules to the extent of inconsistency.

The Rules affect a broad range of participants in Australian workplace relations. Applicants include employees seeking to resolve disputes about flexible working arrangements (rule 27), extensions of unpaid parental leave (rule 30), or fixed term contracts (rule 64); employees making general protections applications (rule 65), unfair dismissal applications (rule 66), or unlawful termination applications (rule 68); bargaining representatives applying for bargaining orders (rule 47), scope orders (rule 48), supported bargaining authorisations (rule 50), or single interest employer authorisations (rule 52); persons alleging sexual harassment (rule 83) or bullying at work (rule 86); and any person initiating a matter for which no specific form exists (rule 9). Employers are directly affected: they must respond to unfair dismissal applications within 7 days (rule 66), respond to general protections applications within 7 days (rule 65), notify employees of applications for approval of enterprise agreements (rule 35), lodge declarations in support of enterprise agreement approvals (rules 32-34), and serve draft orders and applications in industrial action matters (rule 76). Employers covered by a transfer of business must respond to applications for orders under sections 318, 319, 320, 768AX, 768BA, 768BD and 768BG (rule 63). Employee organisations (unions) are affected when they are bargaining representatives, when they seek to be covered by an enterprise agreement under section 183, when they apply for entry permits (rule 81) or affected member certificates (rule 82), and when they respond to applications in right of entry disputes (rule 80). Paid agents and lawyers are affected by the representation rules: they must obtain permission to participate in conferences or hearings (rule 13), unless the matter falls within specific exceptions such as matters under Part 2-3 (modern awards), Part 2-5 (workplace determinations), Part 2-6 (minimum wages), Part 2-7 (equal remuneration), or sections 510 or 512 (entry permits), or unless participating in a staff‑member conference concerning unfair dismissal, sexual harassment, or bullying. Respondents to general protections, unfair dismissal, unlawful termination, sexual harassment and bullying applications are required to lodge responses within 7 days (rules 65, 66, 68, 84, 86, 87). The FWC itself is affected as the body that must serve certain applications (e.g., unfair dismissal applications under rule 71, sexual harassment applications under rule 88) and as the decision‑maker on procedural directions and dispensations. The Australian Electoral Commission is affected in protected action ballot matters (rule 76(4)). The Rules also affect persons applying for orders for attendance (rule 25) or production of documents (rule 26), and those subject to such orders.

The Rules impose numerous duties and confer corresponding rights. Key duties include the duty to lodge responses within prescribed timeframes: a respondent to a general protections application must lodge a response within 7 days after service (rule 65(1)); an employer must lodge a response to an unfair dismissal application within 7 days (rule 66(1)); a respondent to an unlawful termination FWC application must lodge a response within 7 days (rule 68); a person named as an employer or principal in a sexual harassment application must lodge a response within 7 days (rule 84(1)); and an employer or principal in a bullying application must lodge a response within 7 days (rule 86(1)). The Rules also require that responses include details of any jurisdictional objection (rules 65(2), 66(2)). Employers covered by an enterprise agreement must notify employees of an application for approval as soon as practicable after lodgment, through usual means of communication (rule 35). A person required to serve a document must do so as soon as practicable (rule 22(1)) and in compliance with Schedule 1, which specifies the form, service by whom, on whom, and the period. For example, an applicant for a protected action ballot order must serve the application and draft order within 24 hours on the employer, the proposed ballot agent, and any independent advisor (Schedule 1, item F34). The duty to accompany applications with specified documents is extensive: applications for a change in working arrangements must include a copy of the written request and any written response (rule 27); applications for an extension of unpaid parental leave require the same (rule 30); applications for approval of enterprise agreements require declarations and supporting documents (rules 32-34); applications for bargaining orders require a copy of the written notice of concerns (rule 47); applications for entry permits require evidence of training completion (rule 81); and appeals require lodgment of an appeal book within 7 days after the notice of appeal (rule 128(3)). Key rights include the right of an applicant to discontinue an application at any time by lodging a notice of discontinuance or by advising the FWC that they wish to withdraw (rule 10). A person may apply to the FWC for directions on procedure if the procedure is not prescribed or if they are in doubt (rule 8). A person may nominate a representative (rule 11), and may seek permission for legal representation in conferences or hearings (rule 14). A party may apply for an order requiring a person to attend (rule 25) or produce documents (rule 26). A party may also apply for substituted service (rule 24). In unfair dismissal matters, a respondent or applicant may apply for security for costs (rule 67). The FWC may, on its own initiative, dismiss an application (rule 10(3)). The Rules also provide a right to apply for access to certain applications and declarations concerning enterprise agreements (rule 130).

The Rules themselves are procedural; they do not create penalties or offences. However, non-compliance with the Rules can have significant practical consequences. The FWC has a broad power to dispense with compliance with any provision of the Rules, either before or after the occasion for compliance arises (rule 7(1)). The FWC may also make an order inconsistent with the Rules, and that order prevails over the Rules to the extent of any inconsistency (rule 7(2)). This means that a failure to comply with a rule is not necessarily fatal if the FWC exercises its dispensing power or makes a contrary order. Nonetheless, the Act provides at section 585 that an application to the FWC must be in accordance with the Rules, so non-compliance may render an application invalid unless the FWC dispenses with the requirement. The Rules themselves refer to the power to order security for payment of costs in unfair dismissal matters (rule 67). If a person fails to provide security as ordered, the FWC may adjourn the matter or adjourn it indefinitely (rule 67(4)). That is a form of enforcement by procedural sanction. The Rules also require that a person produce retained evidence of service (e.g., a ‘sent item’ email or a barcode for express post) if required by the FWC (rules 16(2)(d), 22(3), 22(4)(b)). Failure to do so could prejudice a party’s ability to prove service. In the case of orders for attendance (rule 25) or production of documents (rule 26), non-compliance with an order could attract the contempt powers of the FWC or lead to adverse inferences. The Rules themselves do not specify monetary penalties; those are found in the Act and regulations. The Rules also provide for the FWC to publish certain information on its website, such as entry permit applications (rule 81(3)). The Rules do not create a separate enforcement mechanism but operate within the enforcement framework of the Act.

The Rules are procedural rules made under section 609 of the Fair Work Act 2009. They operate in conjunction with the Act, the Fair Work Regulations 2009, and the Acts Interpretation Act 1901 (which applies to these Rules by virtue of section 40A of the Act). Where the Act or Regulations directly prescribe a procedure, that procedure takes precedence unless the Rules are made pursuant to a power under the Act. For example, section 585 of the Act requires applications to be in accordance with the Rules, giving the Rules binding force. The Rules also interact with the Transitional Act (the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). Chapter 3, Part 1 of the Rules deals with matters under the Transitional Act, including termination of collective agreement‑based transitional instruments (rules 120‑121) and individual agreement‑based transitional instruments (rule 122). Those rules extend provisions of the Act (such as sections 222 and 225) to transitional instruments through items in Schedule 3 to the Transitional Act. The Rules also interact with the Registered Organisations Act (Fair Work (Registered Organisations) Act 2009). Rules 124‑126 cover applications for registration, representation orders, and conscientious objection certificates under that Act. The Rules refer to the Fair Work (Registered Organisations) Regulations 2009 for signing requirements. The Work Health and Safety Act 2011 is referenced in rule 127, which prescribes that an application for a WHS entry permit must be accompanied by evidence of completion of prescribed training. The Rules also interact with the Acts Interpretation Act 1901 in two specific ways: section 36 of that Act (calculation of time) is preserved by rule 6(2), and section 29 (service by post) is applied in rule 22(5) which provides that a certificate from Australia Post is evidence of delivery. The Rules are also subject to the Australian Privacy Principles, with rule 17(3) authorising the collection of personal information for online lodgment. The Rules do not create rights of review or appeal; those are found in the Act. Chapter 4 of the Rules (appeals and reviews) sets out the procedure for instituting an appeal under section 604 of the Act (rule 128) and for a Ministerial review under section 605 (rule 129).

The source text of the Fair Work Commission Rules 2024 does not contain any amendment history. The Rules were made by Justice Adam Hatcher, President of the Fair Work Commission, on 25 March 2024, and commenced on 27 March 2024 (the day after registration). The Rules are a single, original instrument. They repeal and replace the Fair Work Commission Rules 2013 in their entirety (Schedule 2). Chapter 6, Part 1 (rule 133) contains transitional provisions that govern how the new Rules apply to matters that started before commencement and to steps taken after commencement. No amendments to the Rules are reflected in the source. Any subsequent amendments to the Rules would be separately gazetted and are not part of this text.

The source text does not refer to any specific litigation or court decisions. The Rules are procedural and have been in force only since 27 March 2024. At the time of writing, no reported cases interpreting these 2024 Rules are identified in the source. The 2013 Rules, which were repealed, were the subject of various decisions of the Fair Work Commission and the Federal Court, but those interpretations are not binding on the 2024 Rules unless the provisions are identical and the reasoning remains persuasive. The source itself does not mention any case names.

Practitioners should be alert to several traps in the Rules. Time limits are strict but not absolute: responses to unfair dismissal, general protections, unlawful termination, sexual harassment, and bullying applications are due within 7 days after service, and the 7 days include weekends and public holidays (rule 6). However, the FWC may dispense with compliance (rule 7). Relying on that dispensation without applying for it is risky. Lodgment by email or online is not effective until acknowledgment is sent by the General Manager (rules 16(3), 17(2)). A party who emails an application before the deadline but does not receive an acknowledgment until after the deadline must rely on the FWC to treat the application as lodged at the time of electronic receipt once the acknowledgment is sent; this may be problematic in jurisdictions with strict limitation periods (e.g., 21 days for unfair dismissal). Service must be proved: a person serving by email must retain the sent item or a delivery receipt (rule 22(4)). A person serving by express or registered post must retain the barcode (rule 22(3)). Failure to produce these records on request by the FWC could undermine proof of service. The service table in Schedule 1 is mandatory unless varied by the FWC (rule 21). For example, an unfair dismissal application is served by the FWC on the respondent as soon as practicable (not by the applicant). The respondent then has 7 days from service to lodge a response. A respondent who does not receive the application from the FWC should not assume the period has not started; the FWC may have served by email to an address on file. Representation rules are nuanced: permission is needed for a lawyer or paid agent to participate in a conference or hearing (rule 13(1)), but permission is not needed for matters such as modern award variations, entry permit applications, and staff‑member conferences in unfair dismissal, sexual harassment, or bullying matters (rule 13(2)). However, even in those excepted matters, the FWC may direct that permission is required (rule 13(3)). A party who appears with a lawyer without permission at a conference with a FWC Member may be in breach. Notice of lawyer or paid agent acting should be lodged under rule 12; without it, the lawyer may not be copied into communications, and an adverse costs order may be harder to obtain. Applications for orders for attendance or production must include a draft order in Word format (rules 25, 26). Hard copy draft orders are only allowed if the applicant is unable to lodge electronically. Partnerships: if the employer is a partnership, each partner is individually obliged to lodge documents or notify employees under rule 35, but any one partner or authorised officer/employee may discharge the obligation (rule 19). Failure by one partner does not excuse the others. Transcript exemption: in an appeal, if the FWC has not given the appellant a transcript and the appellant has not purchased one, but the FWC has provided access to an audio recording, the appellant may apply for exemption from including the transcript in the appeal book (rule 128(7)). This must be applied for. Sexual harassment and bullying applications: the FWC must exclude contact details from the served copy if it considers it appropriate (rule 88(2)). Practitioners should ensure that any contact details they provide in the application are accurate and complete, as the FWC will serve a redacted version. Telephone applications: a person making a telephone application under rule 69 must follow up with a completed and signed written application within 14 days, and pay the fee or apply for a waiver. If they fail to comply, the application is not taken to have been made on the date of the telephone call. Transitional provisions: the old 2013 Rules continue to apply to matters started before 27 March 2024 unless a step is taken after that date (rule 133). Be certain whether the matter is governed by the old or new rules.

Compliance with the Fair Work Commission Rules 2024 requires attention to detail at every stage of a matter. The following practice points are drawn from the Rules.

Before commencing a matter: identify the correct approved form for the application. If no form exists for a specific application, use Form F1 (Application (no specific form provided)). Ensure that all documents required to accompany an application are prepared and ready. For example, an application for a flexible working arrangement dispute must include copies of the written request and any written response (rule 27); an application for a bargaining order must include a copy of the written notice of concerns (rule 47); and an application for a protected action ballot order must include a draft order, declarations, and a declaration from a proposed ballot agent if they are not an eligible agent (rule 76).

Lodgment: lodge the application by one of the permitted methods (physical delivery, post, email, or online facilities). If using email, attach the document in the required format: statutory declarations as PDF or approved image format; other documents as Word, RTF, or PDF. Include a covering email with the sender’s name, address, telephone number, and an email address for notices. Mark the subject line to indicate it is an application commencing a matter or include the matter number if it relates to an existing matter. Retain the sent email or delivery receipt. Be aware that the application is not taken to be lodged until the General Manager sends an acknowledgment of lodgment (rules 16(3), 17(2)). Plan to lodge well before any statutory time limit to allow for this.

Service: after lodgment, check Schedule 1 to determine who must serve the document and on whom. If the FWC is required to serve, no further action is needed by the applicant, but the applicant should confirm that the FWC has the correct contact details for the respondent. If the applicant must serve, do so as soon as practicable, using the methods in rule 22. Keep evidence of service: for email, retain the sent item or a delivered/read receipt; for express or registered post, retain the barcode. If service is difficult, apply for an order for substituted service (rule 24).

Responding to an application: if you receive an application (as respondent or other named person), note the time limit in the Rules and in Schedule 1. Most responses must be lodged within 7 days after service (e.g., unfair dismissal, general protections, sexual harassment, bullying). Lodge the response in the approved form and include details of any jurisdictional objection (rules 65(2), 66(2)). Serve a copy of the response on the applicant and other relevant parties as required by Schedule 1. If multiple applications are received concerning the same conduct, you may lodge a single response under rule 70.

Representation: if you intend to be represented by a lawyer or paid agent in a conference or hearing, lodge a notice under rule 14. Seek permission from the FWC unless the matter falls within the exceptions in rule 13(2). If you are a lawyer or paid agent acting for a person, lodge a notice under rule 12 to ensure you receive correspondence and to put other parties on notice of potential costs liability.

Making urgent applications: for stop‑industrial‑action orders (rules 73, 74), include a draft order and lodge electronically if possible. For protected action ballot orders, serve the application and draft order within 24 hours on the employer, the proposed ballot agent, and any independent advisor (Schedule 1, item F34). Use the email address secret.ballots@aec.gov.au for the Australian Electoral Commission and retain evidence of that email.

Enterprise agreement approvals: employers must lodge declarations within 14 days after the agreement is made (rule 32(3)). Notify employees of the application as soon as practicable after lodgment through usual means (rule 35). Serve declarations and accompanying documents on all relevant parties (rule 36).

Discontinuing a matter: lodge a notice of discontinuance (Form F50) to formally bring a matter to an end. This may entitle you to a refund of the application fee in certain circumstances under the Fair Work Regulations.

Appeals: lodge a notice of appeal within 21 days of the decision or order (rule 128(2)). Within 7 days after lodging the notice, lodge an appeal book electronically in PDF, or if unable, three hard copies. The appeal book must include the order, reasons, transcript (if available and not exempted), and relevant exhibits or submissions. Serve the appeal book on each other party as soon as practicable after lodgment (rule 128(6)).

General good practice: apply for directions under rule 8 if you are uncertain about the procedure. Keep copies of all documents lodged and served. Use the approved forms and fill them out completely. For any document lodged, ensure it is signed and dated (rule 18). The FWC may dispense with rules, but do not rely on this as a safety net; comply with the Rules from the outset. Where the Rules require a draft order to be lodged in Word format, provide it as such unless you cannot lodge electronically. Monitor the FWC website for approved forms and any guidance.