The Industrial Relations Commission (Commission) and Fair Work Commission (FWC) have similar powers but operate under different legislation and cover different workers. Before filing an application, you should identify which body has authority to grant the relief you seek.
In many cases, there is only one body that can hear your application. If you lodge it elsewhere, it will likely be dismissed. This is important because time limits apply for claims in the Commission and the FWC.
Most of the matters the Commission deals with are related to workers and employees in state government and local government organisations, such as NSW Government agencies and local councils.
You must apply to the Commission if you are a public sector or local government worker and your matter involves:
Most private sector and federal government workers in NSW are covered by the national workplace relations system established under the Fair Work Act 2009 (Cth) (FW Act). If you work for a business, company, not-for-profit or partnership, or the federal government, you should generally apply to the FWC.
You must apply to the FWC if you are a national system worker and your matter involves:
A national system employee (or, where permitted under the FW Act, an industrial association, employee organisation or inspector) may apply to the Industrial Court1 for orders in relation to contraventions of civil remedy provisions under Chapter 4 of the FW Act.2
These include civil remedies relating to:
Non-compliance with one or more of the National Employment Standards;
Breach of a term of a modern award;
Breach of a term of an enterprise agreement;
Failure to pay an employee’s wages in full and at least monthly;
Non-compliance with a workplace determination;
Non-compliance with a term of a national minimum wage order or equal remuneration order;
Fixed-term contracts exceeding 2 years in duration;
Contractual terms inconsistent with an employee’s rights in relation to pay secrecy;
Contravention of minimum ‘safety net’ terms of employment provided under Part 6-3 of the FW Act, such as unpaid parental leave and notice of termination entitlements;
Non-compliance with certain orders made by the FWC, including orders relating to stand-down, workplace sexual harassment, unfair terms of service contracts, workplace bullying and alternative protected rates of pay;
Failure to make and keep employee records; and
Failure to provide payslips.
A national system employee covered by a federal enterprise agreement may apply to the Commission to have a dispute resolution process conducted by the Commission if the Commission is authorised under either the FW Act or enterprise agreement to conduct the dispute resolution process.
Underpayment claims under the FW Act can be heard in the Federal Circuit and Family Court of Australia, the Federal Court of Australia or the Industrial Court. The Industrial Court has an uncapped monetary jurisdiction in respect of underpayment claims. In addition to ordering the payment of any unpaid remuneration, the Industrial Court can impose a civil penalty.
To make a claim for unpaid remuneration under the FW Act, you must be a national system worker claiming an entitlement under the FW Act or a federal award, enterprise agreement or other industrial instrument.
Importantly, the Industrial Court does not have authority to hear underpayment claims where the obligation to pay arises solely under a contract, rather than a statute or an industrial instrument such as an award, enterprise agreement or workplace determination.
An underpayment claim can only be made within 6 years of the date on which the entitlement to payment became due.
People employed under national awards and agreements with other workplace issues must contact:
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