MEMBER
CODE OF
www.fwc.gov.au
CODE OF CONDUCT
CONDUCT
CODE
1 MARCH 2013

MEMBER CONDUCT GUIDE / 04
CONTENTS
1  INTRODUCTION ............................................. Page 1
2  ABOUT THE COMMISSION ............................. Page 2
3  GUIDING PRINCIPLES ..................................... Page 3
4  APPLYING THE GUIDING PRINCIPLES .............. Page 4
5  COMPLAINTS ABOUT MEMBERS
  RELATING TO THE PERFORMANCE
  OF THEIR DUTIES ........................................... Page 9
FAIR WORK AUSTRALIA
AUSTRALIA’S NATIONAL WORKPLACE RELATIONS TRIBUNAL

MEMBER CONDUCT GUIDE / 1
1 INTRODUCTION
This document is published pursuant to s.581B of the Fair Work Act
2009 (the Act). Subsection 581B(1) provides that after consulting the
other Fair Work Commission Members (Members), the President may
determine a Code of Conduct (the Code) for Members.
The Code provides a guide to Members appointed to the Fair Work
Commission (the Commission). The Act deals with a number of specific
matters relating to Member conduct and these have been incorporated
into the Code. To a significant extent the Code is based on the Australian
Institute of Judicial Administration’s Guide to Judicial Conduct (second
edition).
The Code does not purport to lay down a prescriptive set of rules to govern
Member behaviour. The primary responsibility for deciding whether or not a
particular activity or course of conduct is or is not appropriate rests with the
individual Member.
In exercising that responsibility Members should bear in mind that tribunals,
like other justice institutions, ultimately rely on public confidence for their
legitimacy. Accountability and standards of conduct that are consistent
with the general principles set out in this Code are fundamental to the
maintenance of public confidence in the Commission.
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2  ABOUT THE COMMISSION
The President is responsible for
decisions they make in matters allocated
ensuring that the Commission performs  to them.5 In performing their functions or
its functions and exercises its powers
exercising their powers as a Member of
in a manner that:
the Commission, a Member has the same

> is efficient, and
protection and immunity as a Justice of the
High Court.6

> adequately serves the needs
of employers and employees
Members generally hold office until they
throughout Australia.1
resign, attain the age of 65 or have their
The President is not subject to direction
appointment terminated.7 Section 641
by or on behalf of the Commonwealth.
of the Act provides that Members may
2
have their appointment terminated if
All Members of the Commission take an
an ‘address praying for the termination
oath or affirmation that they will faithfully
[is] presented to the Governor General
and impartially perform the duties of their
by each House of the Parliament in the
office.3 Members are also bound to act in
same session’ on the grounds of either
a judicial manner and must perform their
‘proved misbehaviour’ or an inability to
functions and exercise their powers in a
perform their duties because of physical
manner that:
or mental incapacity.8
>  is fair and just
Tenure of appointment is an important
>  is quick, informal and avoids
means of preserving the independence
unnecessary technicalities
of the Commission. It is appropriate that
>  is open and transparent, and
the power to remove a Member from
>  promotes harmonious and cooperative
office for misbehaviour or incapacity is
workplace relations.4
reserved for the Parliament and that it is
Members have adjudicative independence
only exercisable in limited circumstances.
and are not subject to direction from
the President or anyone else about
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3  GUIDING PRINCIPLES
The principles applicable to Member
These objectives and principles provide
conduct have three main objectives:
a guide to conduct by a Member in the

> to uphold public confidence
discharge of their official functions and in
in the Commission and in the
private life. If a Member’s conduct is likely
administration of justice
to adversely affect the Member’s ability to

> to enhance public respect for
comply with these principles, that conduct
the Commission, and
is likely to be inappropriate.

> to protect the reputation of
individual Members and of the
Commission as a whole.
Any course of conduct that has the
potential to put these objectives at
risk must be carefully considered
and, as far as possible, avoided.
There are three basic principles against
which Member conduct should be tested
to ensure compliance with the stated
objectives. These are:
>  impartiality
>  independence, and
>  integrity and personal behaviour.
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4  APPLYING THE GUIDING PRINCIPLES
4.1 Impartiality
Paid work is defined in s.12 of the Act to
A Member should try to ensure that his
mean ‘work for financial gain or reward
(whether as an employee, a self-employed
or her conduct, in and out of hearings,
person or otherwise)’.
in public and in private, maintains
and enhances public confidence in the
(ii) Potential conflict
Member’s impartiality and in that of
Section 640 of the Act sets out the
the Commission.
circumstances in which a Member must
The fundamental principle is that a
disclose potential conflicts:
Member should not engage in an activity
(1) This section applies if:
that raises a real risk that the Member
will be disqualified from performing their
(a)  an FWC Member (other than
official duties because of a disqualifying
the President) is dealing, or will
factor, or engage in an activity that would
deal, with a matter; and
compromise the objectives or infringe
(b)  the FWC Member has or
the guiding principles identified above. In
acquires any interest (the
addition to these general principles, the
potential conflict), pecuniary
following specific observations are relevant.
or otherwise, that conflicts or
could conflict with the proper
(i) Paid work
performance of the FWC
Section 633(1) of the Act provides that a
Member’s functions in relation
Member must not engage in paid work
to the matter.
outside the duties of his or her office
(2)  The FWC Member must disclose the
without the President’s approval. Further,
potential conflict:
s.644(1) of the Act provides that if a
Member engages in paid work outside
(a)  a person who has made, or
the duties of his or her office without the
will make, a submission for
President’s approval then the Governor
consideration in the matter; and
General must terminate their appointment.
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MEMBER CONDUCT GUIDE / 5
(b) a person who the FWC member  company which is a party in proceedings
considers is likely to make a
before the Commission as a sufficient
submission for consideration in the
reason for disqualification see Ebner v
matter; and
Official Trustee in Bankruptcy (2000) 176
ALR 644.
(c) the President.
(3) [Repealed]
(iii) Political ties
Although active participation in or
(4)  The President must give a direction
membership of a political party before
to the FWC Member not to deal, or
appointment would not of itself justify
to no longer deal, with the matter if: an allegation of bias or an appearance of
(a)  the President becomes aware
bias, it is expected that, on appointment,
that an FWC Member has a
a Member will not continue such
potential conflict in relation
involvement with political parties. An
to a matter (whether or not
appearance of continuing ties, such as
because of a disclosure under
might occur by attendance at political
subsection (2)); and
fundraising events, should be avoided.
(b)  the President considers that the
FWC Member should not deal,
4.2 Independence
or should no longer deal, with
the matter.
Members should always take care that
Ultimately the issue is whether a fair-
their conduct, official or private, does
minded lay observer might reasonably
not undermine their institutional or
apprehend that the Member might not
individual independence, or the public
bring an impartial mind to the resolution
appearance of independence.
of  the case.
The independence of the Commission and
For a comprehensive examination of
of individual Members will be best served
the relevant principles with respect to
by reliance on personal integrity and the
a Member holding shares in a public
dictates of conscience.
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4.3 Integrity and
>  diligence and care in the discharge
personal behaviour
of their Commission duties, and
>  discretion in personal relationships,
(i) General
social contacts and activities.
Members are entitled to exercise the
It is the last of these precepts that is likely
rights and freedoms available to all
citizens. It is in the public interest that
to cause the most difficulty in practice.
Members participate in the life and
As a general rule, it permits a Member
affairs of the community, so that they
to discharge family responsibilities, to
remain in touch with the community.
maintain friendships and to engage in social
activities. But it requires a Member to strike
On the other hand, appointment as a
a balance between the requirements of
Member brings with it some limitations
their office and the legitimate demands of
on private and public conduct. By
the Member’s personal life, development
accepting an appointment, a Member
and family. Members have to accept that
agrees to accept those limitations.
the nature of their office exposes them to
These two general considerations have to
considerable scrutiny and to constraints
be borne in mind in considering the duty
on their behaviour that other people may
of a Member to uphold the status and
not experience. Members should avoid
reputation of the Commission, and to avoid  situations that might reasonably lower
conduct that diminishes public confidence
respect for their office or might cast
in, and respect for, the Member’s office.
doubt upon their impartiality as Members.
There are some precepts which,
(ii) Conduct in hearings
as a guide to Member behaviour,
It is important for Members to maintain a
are not controversial:
standard of behaviour in hearings that is
>  intellectual honesty
consistent with the status of their office
>  respect for the law and observance
and does not diminish the confidence
of the law (although a Member like
of parties in particular, and the public in
any other citizen, through ignorance
general, in the ability, integrity, impartiality
or error, may well commit a breach of
and independence of the Member. It is
a statutory regulation which will not
therefore desirable to display such personal
necessarily reflect adversely on their
attributes as punctuality, courtesy, patience
integrity or competence)
and tolerance.
>  prudent management of financial
The entitlement of everyone who comes
affairs
to the Commission—parties and witnesses
alike—to be treated with courtesy and in
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MEMBER CONDUCT GUIDE / 7
a way that respects their dignity should be
cases may be added, as may be citations
constantly borne in mind.
for cases referred to in the transcript.
Members must be firm but fair in the
(iv) Private activities
maintenance of decorum and, above all,
Opinions about the private conduct
even-handed in the conduct of proceedings  or activities of a Member may vary but
before them. This involves not only
the cardinal concern for each Member
observance of the principles of procedural
should be to ensure conformity with the
fairness, but the need to protect a party or
objectives and principles set out in
witness from any display of racial, sexual or  section 3 of this guide. Considerable
religious bias or prejudice. Members should  care should be exercised to avoid
inform themselves on these matters so that  using the authority and status of a
they do not inadvertently give offence.
Member’s office for private purposes.
(iii) Decisions
In relation to the use of the Member’s
Members should aim to prepare and
title, care should be taken not to create an
deliver decisions as soon as possible and
impression that a Member’s name, title or
in accordance with the Commission’s
status is being used to suggest in some way
timeliness standards. In the event that
that preferential treatment might be desired
exceptional circumstances lead to an
or that the status of the office is being used
unacceptable accumulation of reserved
to seek some advantage, whether for the
decisions, a Member should speak to the
Member or for someone else.
President about the situation before the
Members should avoid the use of official
delay becomes a problem.
letterhead in correspondence unrelated to
In the subsequent publication of a decision  their official duties in circumstances where
the use of the letterhead might be taken
that was given orally at the conclusion
to suggest a request for, or expectation
of proceedings, a Member may not alter
of, some form of preferential treatment.
the substance of the reasons already
given for the decision. That is the basic
(v) Acceptance of gifts
principle. Subject to that, a Member may
It is necessary to draw a distinction
revise the oral reasons for the decision
between accepting gifts in a personal
where, because of a slip, the reasons as
capacity unrelated to a Member’s official
expressed do not reflect what the Member
capacity, for example from family or close
meant to say, or where there is some
friends, and gifts which in some way
infelicity of expression. Errors of grammar
relate, or might appear to relate, to the
or syntax may be corrected. References to
Member’s office. It is only in the latter
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category that acceptance of gifts or other
>  Expressions of views on public or
benefits needs careful consideration.
private occasions must also be
Some such gifts are unobjectionable,
considered carefully as they may lead
for example a small gift such as a bottle
to the perception of bias.
of wine or a book by way of thanks
>  Other Members may hold conflicting
for making a speech or otherwise
views and may wish to respond
participating in a public or private
accordingly, possibly giving rise to
function. However, Members should be
a public conflict between Members
wary about accepting any gift or benefit
which may bring the Commission
that might be interpreted by others as an
into disrepute or could diminish the
attempt to obtain goodwill or favours.
authority of the Commission.
(vi) Participation in public debate
In general, the President speaks on behalf
It is appropriate for Members to participate  of the Commission and its Members
in conferences and other events in order to  in relation to legislative and other
make presentations about aspects of the
matters which affect the independence
Commission’s operations and processes.
and standing of the Commission.
Such participation can contribute to the
public’s understanding of the work of the
Commission and to public confidence in
the Commission. Indeed, s576(2)(b) of
the Act states that one of the Tribunal’s
functions is to provide ‘assistance and
advice about its functions and activities’.
However, workplace relations can be
a contentious area and it is generally
advisable to avoid speaking or writing on
politically sensitive topics.
Points to bear in mind when considering
whether it is appropriate for Members to
contribute to public debate on any matter
include the following:
>  Members should avoid involvement
in political controversy.
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5
COMPLAINTS  ABOUT  MEMBERS  RELATING  TO
THE PERFORMANCE OF THEIR DUTIES
Section 581A(1) of the Act provides that
(iii) arrange for any other person to
the President may:
assist the President to handle
(a) deal with a complaint about
the complaint if the President
the performance by another
has a relevant belief in relation
FWC Member of his or her
to the complaint,
duties; and
(b)  arrange for any other complaint
(b) take any measures that
handlers to decide whether or not to
the President believes are
handle the complaint and then to do
reasonably necessary to
one of the following:
maintain public confidence
(i)  dismiss the complaint
in the FWC, including (but
(ii)  handle the complaint if each of
not limited to) temporarily
the complaint handlers has a
restricting the duties of the
relevant belief in relation to the
FWC Member.
complaint.
Section 581A(2) sets out how the President
Section 12 of the Act provides that a
may deal with a complaint about the
person has a relevant belief in relation to
performance of the duties of a Member
a complaint about the performance of the
and provides that the President may do
duties of a Member if:
either or both of the following:
(a)  the person believes that if one or
(a)  decide whether or not to handle the
more of the circumstances that
complaint and then do one of the
gave rise to the complaint were
following:
substantiated, the circumstances
(i)  dismiss the complaint
would justify considering:
(ii)  handle the complaint if the
(i)  terminating the appointment of
President has a relevant belief in
the FWC Member in accordance
relation to the complaint
with section 641; or
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(ii)  (other than if the FWC Member
is the President) suspending the
FWC Member from office in
accordance with section 642; or
(b)  the person believes that if one or
more of the circumstances that
gave rise to the complaint were
substantiated, the circumstances
may:
(i)  adversely affect, or have
adversely affected, the
performance of duties by the
FWC Member; or
(ii)  have the capacity to adversely
affect, or have adversely
affected, the reputation of the
FWC.
1
Fair Work Act 2009 s.581
2 s.583
3 s.634
Fair Work Regulations 2009 reg 5.03 and
Schedule 5.1
4 s.577
5 s.582(3)
6 s.580
7
There are exceptions in relation to dual appointees
from a prescribed State authority Fair Work
Regulations 2009 reg 1.06
8
Section 642 provides for the suspension of Members
on similar grounds.
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