Fair Work Act 2009

If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).

The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

To avoid doubt, in order to commence dealing with the dispute (other than by arbitration) under this section, the FWC is not required to determine whether or not the employer terminated the employee’s employment.

Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

For conferences, see section 592.

If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

the FWC must issue a certificate to that effect; and

if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

An unlawful termination court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of subsection 772(1).