“I’ll just go to the Fair Work Commission and tell my story”. It is a familiar refrain, but it’s not that simple, and it’s about to get harder. The Fair Work Commission is struggling with an increased workload. This means that claimants and respondents alike need to be practical and keep in mind the limitations of the system. There are several reasons for this increased workload including:
- A growing number of legal avenues for workers eg, applications for anti bullying orders, workplace flexibility applications, award disputes as well as unfair dismissal and breach of general protections claims and new jurisdictions in the gig and contractor areas;
- Workers are more aware of their rights and prepared to pursue those rights;
- Legal claims are often made in the anger stage when employees are wanting to lash out at the injustice that has occurred. Whilst this is understandable, it is usually not conducive to practical outcomes at an early stage;
- Many claimants have an unrealistic view of what they can achieve through legal processes, particularly if they are self represented. Recent statistics show that more than half of general protections right dismissal claims were settled by a member or staff conciliator, with 33% of applicants winning a payout of less than $4,000 in 2024-25 and 61% less than $10,000, with a median settlement of $4,000 to $5,999.
This is all contributing to a continuing increase in the workload of our core industrial tribunal, the Fair Work Commission. The latest report from the Fair Work Commission has highlighted that the total number of applications lodged with the Fair Work Commission in 2024-25 jumped to a record 44,075 claims – an almost 50 per cent increase compared to 2020-21 and 24 per cent higher than the five-year average. With increasing pressure on government services across the board in a time of increasing demand, there will be no significant increase in resources provided to the Fair Work Commission to deal with this workload. The Fair Work Commission is taking steps to manage this workload which may result in greater efficiency but perhaps less justice. The Fair Work Commission President recently said that reforms for general protections rights dismissal cases would involve:
- Requiring applicants to fill out new claim and response forms that will need “a more rigorous articulation of the applicant’s case that the GP provisions have been contravened” and any jurisdictional objections by the respondent;
- Shifting to deciding “on the papers” whether to throw out extension of time cases with no reasonable prospect of success, without requiring employers to respond;
- Limiting legal representation in breach of general protections rights conciliation conferences, due to their “straightforward” nature;
- Putting parties on notice that conferences are to settle cases and are not a substitute for a hearing; and
- Terminating conferences if one or both parties do not wish to settle.
AI will also play a greater role in the Fair Work Commission’s work. On the one hand, AI is being used by parties with varying degrees of success. The Fair Work Commission has made it clear that documents prepared with AI assistance need to be carefully checked for accuracy. But AI will also have a greater role in the work of the Fair Work Commission, including the advent of the ubiquitous “chatbot” in its customer services platform. This could involve chatbots for common inquiries, triaging of questions before they are dealt with by human staff, and digital assistance for the Fair Work Commission helpline.
One of the emerging effects is a change in the role of conferencing. Conferencing has long been a fundamental part of our workplace relations system. The original proposal in the late 2000s was that the Fair Work Commission could call the parties together at the workplace or its local offices for a conference and reach a conclusion about whether the dismissal was unfair. Whilst direct resolution in the workplace didn’t eventuate, one of the great features of our workplace relations system has been the availability of early assistance from an experienced industrial umpire to help employees and employers resolve their issues without protracted litigation.
There has been a gradual chipping away of the role of conferences since then, in the name of efficiency. Firstly, most conferences were delegated to conciliators rather than commissioners. Now, conferences increasingly take place electronically by audio or video. In our view, the old system of requiring parties to attend an in person conference had many benefits as it is much harder to say “no” when sitting across a table from another party or a commissioner. The steps that are being taken are understandable given the increase in claims and lack of proportional increase in funding for the Fair Work Commission to carry out its functions. We are concerned however that conferences are becoming more and more superficial in nature (and more legalistic). It is a sad day when a tribunal considers that legal representation is counter productive and such restrictions fail to comprehend the valuable role played by many lawyers in resolving claims at an early stage. Whilst the changes outlined above apply only to general protections matters at this stage, it is intended that similar changes may take place in unfair dismissal claims and other areas. The message is clear for both employees and employers:
- It’s not the vibe. Know the legal grounds you are relying on;
- Have a response to your weak points prepared;
- Have a realistic conference outcome in mind OR be prepared to follow through to a hearing;
- Be prepared to make decisions in a pressured environment;
- Get advice BEFORE proceedings are commenced, whether it is from the Fair Work Commission Workplace Advice Service, a community legal centre, private lawyers or your union.
You can find many helpful tips in the factsheets and bulletins on our website including unfair dismissal conference tips, settlement agreements and conciliation. The benchbooks published by the Fair Work Commission on unfair dismissal, general protections and workplace bullying are also a valuable resource. Please contact us if you would like any further information or help.
Christmas hours
Our office will be closed from midday on Thursday 18 December 2025 and will re open on Tuesday 6 January 2026.
Merry Christmas and Best Wishes for the New Year