Australian labour relations are governed primarily by the Fair Work Act 2009 (Cth) (the FW Act). This legislation establishes the Fair Work Commission (FWC),2 Australia's national workplace relations tribunal. The FWC is an independent body with power to carry out various functions under the FW Act, including the resolution of a wide range of collective and individual employment disputes.
The federal system of workplace regulation under the FW Act covers most Australian private sector employers and employees; the public sector at the federal level and in the state of Victoria; and all businesses in the Australian Capital Territory and Northern Territory. Public sector employment in the other five states is covered by separate industrial legislation in each jurisdiction.
Australian labour laws have been constantly amended since the early 1990s, although the FW Act has been subject to only minor amendments since it came into effect on 1 July 2009. This legislative scheme provides significant support for collective bargaining as the basis for determining wages and employment conditions. Many Australian workers are covered by enterprise agreements made through this process, while others are covered by 'modern awards' that set wage rates and other terms of employment for each industry. The employment of award-free or agreement-free workers is regulated by a combination of common law contracts of employment and 10 statutory minimum employment conditions set out in the FW Act (the National Employment Standards).
As well as enabling the FWC to assist parties to engage in collective bargaining, the FW Act empowers the FWC (and, in some instances, the federal courts) to resolve individual claims relating to unfair dismissal, discrimination and other forms of adverse treatment (the general protections), workplace bullying and disputes arising under the terms of an applicable award or enterprise agreement. These individual claims make up around two-thirds of the FWC's workload, a reversal of the position in 2002 when collective disputes between employers and unions predominated.3
Cases involving enforcement of minimum employment standards (e.g., underpayment claims), whether arising under an employment contract, award, agreement or legislation, must be brought in the relevant federal, state or territory court. A federal agency, the Fair Work Ombudsman,4 investigates non-compliance with workplace laws and assists employees with enforcement issues.
A combination of federal, state and territory laws offer employees protection against employment discrimination and sexual harassment, while different statutes in each jurisdiction regulate occupational health and safety, and workers' compensation.
This chapter focuses on the most common types of individual employment claims in the Australian context: unfair dismissal, general protections, discrimination or harassment, and workplace bullying.
i Unfair dismissal
An unfair dismissal claim is commenced by the dismissed worker lodging an application with the FWC under Section 394(1) of the FW Act. A filing fee (currently A$71.90) must be paid by the applicant unless the FWC is satisfied that this would cause serious hardship (Section 395). An application must be made within 21 days of the dismissal taking effect (Section 394(2)), unless the FWC grants an extension.
Most unfair dismissal claims are first dealt with through a telephone conciliation conference conducted by specialist conciliators. If a claim is not resolved at conciliation, it will be referred to a member of the FWC for an arbitration hearing, at which oral submissions and evidence are presented by each party. Legal representation is subject to the granting of leave by the FWC (e.g., based on the complexity of the matter) and in many cases applicants are self-represented. Any FWC award of compensation or reinstatement that is not observed by the employer or respondent must be enforced in a federal court.
ii General protections
An employee must initiate a dismissal-based general protections claim with the FWC, which will attempt to settle the matter through informal processes (FW Act, Sections 365 and 370). If the claim is not resolved at this stage, it may proceed to an arbitration hearing in the FWC if both parties agree; alternatively, the employee may pursue the claim in a federal court (the Federal Circuit Court of Australia or the Federal Court of Australia).5 General protections claims not involving dismissal may be initiated either in the FWC or in a federal court (FW Act, Sections 372 and 539(2), Item 11).
iii Discrimination and harassment
The Australian Human Rights Commission (AHRC)6 investigates and conciliates complaints about alleged discrimination under federal anti-discrimination statutes. Unresolved complaints must be pursued in a federal court. In addition, each state and territory has its own anti-discrimination agency or tribunal, or both.7
If an employee considers he or she has been discriminated against or harassed on a ground that is covered by both federal and state or territory legislation, the employee may choose to bring a claim before the AHRC under the applicable federal law, or to the relevant state or territory tribunal. However, employees may not seek a remedy in more than one jurisdiction for the same claim.
iv Workplace bullying
An application for an order to stop bullying must be lodged with the FWC. The FWC has an online eligibility quiz to assist individuals to determine whether they are eligible to apply.8 On receipt of an application, the FWC will inform the employer and the persons alleged to have engaged in the bullying behaviour.
The FWC adopts a case management model aimed at early resolution of workplace bullying claims with a view to repairing the relationship between all parties involved. Thus, the emphasis is on conciliation, mediation and other informal approaches to dispute resolution (although bullying claims may be arbitrated where necessary).
III TYPES OF EMPLOYMENT DISPUTES
i Unfair dismissal
Part 3-2 of the FW Act outlines when an individual is protected from unfair dismissal,9 what constitutes unfair dismissal, the remedies that may be awarded by the FWC and the processes for dealing with these claims. The FWC must be satisfied of four elements for an applicant to make out a claim of unfair dismissal (FW Act, Section 385):
- the person has been dismissed;
- the dismissal was harsh, unjust or unreasonable (i.e., the sacking was not based on a valid reason relating to the employee's misconduct, incapacity or poor performance, or the employee was not accorded procedural fairness);
- the dismissal was not consistent with the Small Business Fair Dismissal Code (where applicable); and
- the dismissal was not a case of genuine redundancy (where applicable).
Following a finding that an employee has been unfairly dismissed, the FWC may order reinstatement or compensation (which is capped at six months' pay or A$72,700, whichever is the lower).
ii General protections
Part 3-1 of the FW Act provides for a range of protections against discriminatory or adverse treatment of an employee. An employer must not take one or more forms of 'adverse action' against an employee (e.g., dismissal, disciplinary action, demotion, reduction in wages or conditions) (FW Act, Sections 340(1) and 342), because of one of a number of prohibited grounds. These include an employee's exercise of various types of workplace rights, such as an employee's rights under an award, agreement or workplace law (Section 341), an employee's involvement (or non-involvement) in a trade union or industrial activity (Sections 346 and 347), or a discriminatory reason (e.g., an employee's race, colour, gender, sexual orientation, age, disability) (Sections 351 and 352).
Complaints under these provisions are known as general protections or adverse action claims. If an employee succeeds in such a claim, the FWC may order uncapped compensation or reinstatement. If a federal court deals with a general protections claim, it can order reinstatement, compensation or the imposition of a civil penalty upon the employer (currently, the maximum penalties are A$12,600 for an individual and A$63,000 for a corporation) (FW Act, Section 546).
iii Discrimination and harassment
In addition to the protections against discrimination under the FW Act discussed in subsection ii, above:
- the Racial Discrimination Act 1975 (Cth) proscribes discrimination on the grounds of race, colour or national or ethnic origin, and racial vilification;
- the Sex Discrimination Act 1984 (Cth) proscribes discrimination on the grounds of gender, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities. It also prohibits sexual harassment;
- the Disability Discrimination Act 1992 (Cth) precludes discrimination on the basis of a range of physical, intellectual and psychiatric disabilities, and proscribes the harassment of people with disabilities; and
- the Age Discrimination Act 2004 (Cth) prohibits discrimination for reason of age or age-related characteristics.
Each state and territory has its own anti-discrimination statute, prohibiting discrimination on the basis of a broader range of attributes than the above federal laws.10 It is generally a defence if the discrimination is based on a person's inability to fulfil the inherent requirements of a particular position.
Most workplace harassment claims relate to sexual harassment, which is typically defined to mean conduct of a sexual nature that could reasonably be expected to offend, humiliate or intimidate a person.11
iv Workplace bullying
Bullying behaviour in the workplace may be addressed through workplace health and safety, workers' compensation or anti-discrimination legislation, criminal law or the tort of negligence. Primarily, however, an employee may bring a claim before the FWC seeking an order to stop bullying under Part 6-4B of the FW Act.
For the purposes of these provisions, a worker is bullied if, while at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker (or towards a group of workers of which the worker is a member) and that behaviour creates a risk to health and safety. However, reasonable management action (e.g., legitimate performance management) does not constitute bullying (FW Act, Section 789FD).
FWC orders in bullying cases (whether made as a result of conciliation, mediation or arbitration) are generally focused on preventing further bullying. Orders may therefore include:
- requiring the individual or group of individuals to stop the specified behaviour;
- regular monitoring of behaviour by an employer or principal;
- compliance with an employer's or principal's bullying policy;
- the provision of information, additional support and training to workers about acceptable workplace conduct; and
- review of the employer's or principal's anti-bullying policy (or implementation of such a policy where none exists).
The FWC has no power to award monetary compensation in bullying cases.
IV YEAR IN REVIEW
i Significant cases: unfair dismissal
- Klooger v. Foodora Australia Pty Ltd  FWC 6836
The FWC determined that a delivery rider engaged by Foodora was an employee, in the first definitive Australian ruling confirming the employment status of a platform worker. Key factors supporting this conclusion included the level of control exercised by Foodora over the rider's work (e.g., the manner of performing work, the place of work, and start and finish times); the use of a 'batching system' for allocating work based on performance metrics; the rider's lack of substantial investment in capital equipment used to perform the work (i.e., a bicycle); and the presentation of the rider to the world as an emanation of the business (e.g., use of Foodora-branded attire and equipment). In the tribunal's view, the rider was not carrying on a trade or business on his own behalf and (despite the company's attempt to portray an independent contractor arrangement) he was an employee of Foodora and therefore eligible to pursue an unfair dismissal claim. On the merits of that claim, the FWC decided that there was no proper basis for Foodora's claim that the rider had been sacked for breaching the company's intellectual property rules. Rather, he was dismissed for being involved in a public complaint about the terms and conditions imposed on Foodora riders. As the dismissal was harsh, unjust and unreasonable, he was awarded A$15,559 compensation. In August 2018, Foodora announced it was entering into voluntary administration as it was ceasing operations in Australia.
b Spinifex Australia Pty Ltd t/a Spinifex Recruiting v. Tait  FWCFB 6267
A Full Bench of the FWC upheld an earlier finding that an employee placed by a labour hire firm with a New South Wales government department had been unfairly dismissed when informed of her immediate dismissal at the department's request. The labour hire employer argued that the terms of its employment agreement with the employee provided for her engagement on an assignment-by-assignment basis. Further, it maintained that it had alternative assignments available for the employee and that she had left her employment. The Full Bench found that the employer 'hid behind the terms' of the employment agreement, which erroneously described the employment as 'temporary'. The employment had been ended through no fault of the employee. This constituted a termination initiated by the employer, which could be the subject of an unfair dismissal claim. As there was no valid reason for the dismissal and procedural fairness requirements were not followed, the Full Bench upheld the finding of unfair dismissal and the award of A$15,000 compensation to the employee.
c Kennedy v. Qantas Ground Services Pty Ltd  FWCFB 4319
A Full Bench of the FWC considered the issues raised in the important ruling in Fitzgerald v. Woolworths Limited,12 which had limited the opportunity for parties to use 'shadow lawyers' in the pre-hearing stages of various FWC proceedings (see the Australia chapter in the first edition of The Labour and Employment Disputes Law Review). In contrast to the approach in Fitzgerald v. Woolworths, the Full Bench in Kennedy v. Qantas allowed the company to have legal assistance in the preparation of its written submissions for the purposes of defending the applicant's unfair dismissal claim. The Full Bench determined that even a company that is part of a large corporate group (such as the respondent in this case) might reasonably require legal assistance to prepare its written submissions and supporting materials. See also Blandford v. Burswood Nominees T/A Crown Perth  FWC 6466, in which a single member of the FWC raised concerns that a lawyer who had been denied leave to represent his client in an unfair dismissal case continued to play a role in the proceedings by having conversations during the hearing with employees of his client (the employer).
ii Significant cases: general protections
a Construction, Forestry, Mining and Energy Union v. BM Alliance Coal Operations Pty Ltd  FCA 1590
The Federal Court of Australia issued an interlocutory injunction restraining a mine operator (BMA) from preventing a labour hire employee from being reinstated to her position at the mine. The employee, a dump truck operator, had won an unfair dismissal claim following her termination by the labour hire company (WorkPac) over an alleged safety incident. However, WorkPac Pty Ltd would not reinstate her, claiming that BMA would not have her back on site. The employee then brought a general protections claim, arguing that BMA had encouraged or incited WorkPac to take adverse action against her in breach of Section 340 of the FW Act. Justice Collier of the Federal Court held that there was a serious question to be tried that the employee had been demobilised from the mine site because she had exercised certain workplace rights, and that the balance of convenience favoured the granting of an interlocutory injunction. The FWC then issued a fresh order requiring WorkPac to reinstate the employee to her position at the mine.
The case illustrates an unusual instance of the general protections and unfair dismissal provisions being used in tandem to protect an employee's interests (usually, only one of these types of proceedings can be pursued in respect of a particular dismissal).
b Green v. Bilco Group Pty Ltd  FWC 6818
Highlighting the scope for confusion among employees as to whether they should pursue an unfair dismissal or general protections claim, the FWC extended the 21-day limit for an employee to bring a general protections claim. The employee had initially filed an unfair dismissal application with the FWC but was informed that he did not meet the requirement of having served a six-month qualifying period with his former employer. As this requirement does not apply to general protections claims, he then filed a claim for unfair dismissal but was outside the time limit. In deciding that, despite this, the claim should be permitted to proceed, the FWC observed that amid the confusion regarding the right type of claim, the employee had acted promptly in seeking to challenge his dismissal (albeit incorrectly). He then took immediate steps to correct the error, and the delay arose essentially from making the wrong application in relation to substantially the same complaint.
c Fair Work Ombudsman v. Yenida Pty Ltd and Another  FCCA 1342
In the first edition of The Labour and Employment Disputes Law Review, we reported on a decision in which a hotel and its manager were found to be in breach of Section 351 of the FW Act by underpaying two kitchen workers for reasons relating to the employees' nationality and race. The underpayments totalled around A$26,000 over four years.13 In its 2018 decision on the penalties to be imposed for these breaches, the Federal Circuit Court ordered the employing entity to pay a penalty of A$176,005 and ordered the director/company secretary of that entity to pay a A$35,099 penalty (for his knowing involvement in the contraventions). In determining these penalties, the judge stated that the two employees had been taken advantage of in part because they were from Malaysia and of Chinese descent. The underpayments were deliberate, as the director/company secretary was aware of his obligations to pay the employees their minimum legal entitlements.
iii Significant cases: discrimination and sexual harassment
a BE v Suncorp Group Ltd  AusHRC 121
The AHRC found that a finance company unlawfully discriminated against a job applicant when it revoked a conditional offer of employment upon learning of the applicant's criminal record for possession of child pornography. The AHRC dismissed the employer's argument that the applicant was unable to fulfil the inherent requirements of the position as a 'work-at-home consultant' because his past record was inconsistent with the company's values of honesty, respect, trustworthiness and being of good character. Although the AHRC considered the applicant's prior convictions to be serious, the offences did not involve dishonesty and did not affect his capacity to perform the inherent requirements of the role.
In these types of cases, the AHRC's powers do not extend to making orders in favour of a successful claimant. Instead, it was recommended that the employer pay the job applicant A$2,500 for hurt, humiliation and distress, change its recruitment policies and undertake anti-discrimination training for staff.
b XVC v Joanne Baronessa (Human Rights)  VCAT 1492
The Victorian Civil and Administrative Tribunal (VCAT) upheld a claim by a female employee, who had been placed on a construction project by a disability support organisation, that a senior manager had unlawfully discouraged her from making a complaint that she was being sexually harassed by a male co-worker. There was evidence that the co-worker had made derogatory remarks to the complainant based on her gender and disability, and other comments of a sexual nature. Further, the senior manager had sought to dissuade the employee from pursuing her allegations as it would 'put the whole project at risk' and told her: 'You are working in a man's working environment and you need to expect that kind of unwanted attention.' The VCAT found that the disability support organisation had subjected the employee to harassment on the basis of her gender and awarded her A$10,000 in damages for hurt, humiliation and distress.
iv Significant cases: workplace bullying
a Application of Jennifer Watts  FWC 1455
The FWC issued an order to prevent the further bullying of a catering assistant by a group of staff at a hospital that she claimed had been happening for six years. The FWC expressed concern about the employer's handling of the employee's grievance, in that relevant managers imposed their own requirements as to the nature and substance of the employee's complaint (in addition to those expressed in the company's discrimination, bullying and harassment policy). As a result, her complaint was ignored and there was no investigation into her allegations. The FWC found that some of the employee's colleagues had repeatedly behaved unreasonably towards her, creating a continuing risk to her health and safety. Therefore it was appropriate for an order to be issued to prevent any future bullying of the employee.
The decision reflects a slightly increased preparedness of the tribunal during the past year or so, to issue stop-bullying orders (almost all bullying claims are resolved by agreement between the parties without an order being required).14
b Miroslav Blagojevic v. AGL Macquarie Pty Ltd; Mitchell Sears  FWC 2906
A tribunal rejected an application for stop-bullying orders brought by an engineer who had been placed on a performance improvement plan, despite a previous track record of positive work performance. The FWC determined that the engineer's managers had not acted unreasonably in placing him on the performance plan, and that the areas of underperformance identified were within the scope of his role and position. The decision further clarifies the 'reasonable management action' exclusion from the definition of 'bullying' for the purposes of the FW Act's anti-bullying provisions.
v FWC caseload and access to justice programmes
During 2017–2018, the FWC dealt with 13,595 unfair dismissal claims, 4,117 general protections claims involving dismissal, 992 other general protections claims and 721 applications for orders to stop workplace bullying.15 With the exception of general protections dismissal claims, which increased by 26 per cent, and a lower number of unfair dismissal claims, overall the volume of claims in 2017–2018 was consistent with previous years.16
Since 2012, the FWC has implemented many initiatives to improve access to justice for users of its services, especially the approximately 40 per cent of applicants who are unrepresented when they lodge an unfair dismissal or general protections claim.17
During 2017–2018, the FWC continued the Workplace Advice Clinic programme, which facilitates the provision of free legal advice to unrepresented litigants, working in partnership with community legal centres. The programme is now being expanded across Australia.18 The FWC also operates a pro bono programme, through which law firms provide free legal assistance to unrepresented employees and employers in cases involving jurisdictional objections to an unfair dismissal claim.19 An Outside Sitting Hours pilot was run during 2017–2018, enabling greater flexibility for parties (especially small businesses) through the holding of unfair dismissal conferences and hearings outside normal business hours.20
V OUTLOOK AND CONCLUSIONS
The debate about workplace regulation in Australia intensified in the run-up to the federal election on 18 May 2019. The trade union movement has been campaigning for changes to the FW Act, mainly to improve what are perceived to be limitations in the legislation that have enabled employers to thwart union efforts to engage in collective bargaining, or to evade enterprise agreements through the creation of new employing entities. Unions had also wanted a Labor government (if elected) to provide the opportunity to bargain across franchise networks, supply chains and entire industries, rather than bargaining being restricted to single enterprises, as has been the case.
Another major focus of the unions' campaign is to ensure that workers engaged via platforms or apps in the growing 'gig economy' have access to minimum employment standards and other protections. In May 2018, the FWC handed down the second Australian decision addressing these issues, confirming an earlier finding that an Uber driver was not an employee and therefore could not pursue an unfair dismissal claim.21 On the other hand, as noted in Section IV.i, we now also have a decision finding that a Foodora delivery rider was an employee.22 More litigation of this nature can be expected, as gig economy companies maintain that they are legitimately engaging staff through independent contractor relationships.
Employers more broadly continue to raise concerns about having to pay 'go-away money' to settle unmeritorious unfair dismissal claims, and about the imposition on businesses of defending general protections claims, which can take several years to work their way through the FWC and federal courts. The rise in general protections dismissal claims during 2017–2018 most likely reflects the fact that compensation in that category of claims is uncapped, whereas a statutory cap applies to compensation for unfair dismissal claims.
One other trend which started to develop during 2017–2018, and is likely to continue, is the launching of class actions for various types of employment law claims. Class actions have emerged in the wake of a Federal Court decision allowing a casual worker on a mine site to claim unpaid leave entitlements on the termination of his employment (entitlements normally accorded to permanent employees).23 While Australia does not generally have the same class action culture as the United States, class actions might also start to appear in the context of general protections, discrimination and sexual harassment claims.
Regardless of which party had triumphed in the May 2019 election, it was unlikely that there would be any major changes to the current framework for the resolution of individual employment disputes.
1 John Tuck is a partner and Anthony Forsyth is a consultant at Corrs Chambers Westgarth.
3 Justice Ross, FWC President, address to the International Perspectives on Dispute Resolution Conference, Melbourne, reported in Workplace Express, 3 November 2017.
7 For example, in the state of Victoria, the Victorian Equal Opportunity and Human Rights Commission (https://www.humanrightscommission.vic.gov.au) and Victorian Civil and Administrative Tribunal (https://www.vcat.vic.gov.au).
9 There are numerous exclusions from eligibility to bring an unfair dismissal claim (e.g., short-term casual employees and employees who have not completed the applicable qualifying period of six months' continuous service with the employer, or 12 months in a small business).
10 Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Discrimination Act 1991 (ACT); Anti-Discrimination Act (NT).
11 See, for example, Section 28A of the Sex Discrimination Act 1984 (Cth).
12  FWCFB 2797.
13 Fair Work Ombudsman v. Yenida Pty Ltd and Another  FCCA 2299.
14 See also, for example, the interim order issued by the Fair Work Commission [FWC] in Re Kusum Lal (PR70341), upheld by a Full Bench in South Eastern Sydney Local Health District v. Kusum Lal  FWCFB 1475.
15 FWC, Annual Report 2017–18: Access to Justice, 2018, pages 19, 21.
16 ibid., page 42.
17 Commissioner Johns, FWC, 'The virtual Commission – improving access to justice and efficiency in dispute resolution through technology', paper for the Australian Labour Law Association Conference, Melbourne, November 2016, page 3.
18 FWC, Annual Report 2016–17: Access to Justice, pages 24, 25; FWC, Annual Report 2017–18: Access to Justice, pages 44, 45.
19 FWC, Annual Report 2016–17: Access to Justice, pages 26 to 28.
20 FWC, Annual Report 2017–18: Access to Justice, page 44.
21 Pallage v. Raisier Pacific Pty Ltd  FWC 2579, following the decision in Kaseris v. Raisier Pacific VOF  FWC 6610.
22 Klooger v. Foodora Australia Pty Ltd  FWC 6836.
23 WorkPac Pty Ltd v. Skene  FCAFC 131 (see https://www.corrs.com.au/publications/corrs-in-brief/the-casual-conundrum-continues-double-dipping-and-class-actions/).