Employment and Industrial Relations Practice Note (E&IR-1)

J L B Allsop, Chief Justice 25 October 2016

1. Introduction

1.1 This practice note sets out arrangements for the management of employment and industrial relations cases within the National Court Framework ("NCF"). It:

(a) is to be read together with the:

Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure. The Central Practice Note is an essential guide to practice in this Court in all proceedings; and

Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules");

(b) takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing;

(c) sets out the arrangements for the management of employment and industrial relations proceedings. It is intended to set out guiding principles for the conduct of these proceedings and is not intended to be inflexibly applied.

1.2 Nothing in the Central Practice Note  or this practice note is to be taken as preventing parties from making applications under the Federal Court Act or Federal Court Rules or otherwise as the parties consider appropriate. What is essential, however, is that parties consider carefully the necessity for, and cost of, every step in proceedings in order to ensure the achievement of the overarching purpose of civil practice and procedure in Part VB of the Federal Court Act - to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

2. Overview and Definition

2.1 The Employment and Industrial Relations National Practice Area ("NPA") incorporates proceedings that are substantially of a character of employment and/or industrial relations. As indicated in paragraph 4.2 of the Central Practice Note, the identification of the appropriate NPA for a proceeding may involve a question of judgment. Examples of such questions of judgment that are of particular relevance to the operation of the Employment and Industrial Relations NPA are: whether a proceeding involving alleged discrimination in connection with employment is a human rights matter or an employment matter; whether a proceeding involving provisions such as ss 45D, 45DA, 45DC, 45DD, 45E, 45EA and 45EB, and s 31 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("Competition and Consumer Act") is an employment and industrial relations matter or a competition matter in the Commercial and Corporations NPA; whether an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") concerning the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act") is an administrative matter or an employment (workers compensation) matter. Subject to such questions, the following matters will fall within this NPA:

(a) matters involving the exercise of jurisdiction under the Fair Work Act 2009 (Cth) ("Fair Work Act"), the Fair Work (Registered Organisations) Act 2009 (Cth) ("Registered Organisations Act") and the Fair Work (Building Industry) Act 2012 (Cth) ("Building Industry Act") and related regulations;

(b) matters arising under the Competition and Consumer Act relevant to boycotts, conduct of employee organisations, prohibited arrangements for goods and services or misleading conduct, where the issues relate to:

the conduct of any employer or employee; or

the conduct of any association of employers or employees or their officers or members in that capacity;

(See ss 45D, 45DA, 45DC, 45DD, 45E, 45EA and 45EB, and s 31 of Schedule 2 of the Competition and Consumer Act.)

(c) matters arising under any anti-discrimination legislation or regulation of the Commonwealth or State, where the issues relate to:

the conduct of any employer or employee; or

the conduct of any association of employers or employees or their officers or members;

(d) matters arising under the Public Service Act 1999 (Cth) or regulation;

(e) matters arising under the Independent Contractors Act 2006 (Cth);

(f) matters arising under the SRC Act, including appeals under s 44 of the AAT Act;

(g) matters within the Court's jurisdiction under s 273A of the Work Health and Safety Act 2011 (Cth), whether or not the matter is brought in the Fair Work Division;

(h) employment-related matters involving an administrative decision of a person holding office under a Commonwealth Act;

(i) matters where relief is claimed in the nature of a constitutional writ under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") against the Fair Work Commission;

(j) matters remitted from the High Court of Australia in which relief is sought against, or in relation to any act or omission of, the Fair Work Commission or any member thereof;

(k) employment related matters involving appeals or referrals from the Administrative Appeals Tribunal;

(l) matters arising under a contract of employment or involving rights, entitlements or obligations of any employer or employee;

(m) any other proceeding the character of which is substantially employment or industrial relations.

2.2 For the purposes of s 13(5) of the Federal Court Act (see also r 2.13(1)(b) of the Federal Court Rules), a proceeding commenced in this NPA that is in relation to a matter or matters arising solely under any of the following Acts:

is to be instituted, heard and determined in the Fair Work Division of the Court. Otherwise the proceeding is to be instituted, heard and determined in the General Division of the Court.

3. Urgent Matters

3.1 Parties and their representatives should familiarise themselves with the information dealing with urgent originating and interlocutory applications in Part 5 of the Central Practice Note.

4. Commencing Proceedings

4.1 Subject to the matters clarified below, the Federal Court Rules and forms  apply to the commencement of proceedings in this NPA. 

4.2 Subject to the arrangements permitted under the Central Practice Note, an originating application must be accompanied by a statement of claim or affidavit. Where the proceedings have been commenced on a statement of claim, the defence must be filed within 28 days (see r 16.32 of the Federal Court Rules) and any reply is to be filed within a further 14 days (see r 16.33).

4.3 It is important that the nature of the proceeding and the likely issues for resolution are made clear as early as possible. This will be aided by the applicant making clear in the originating application and accompanying material what the case is about.

4.4 Where the proceeding has been commenced on affidavit, the affidavit accompanying the originating application will be treated as a statement of the party's factual case in the proceeding, whether or not it contains evidence that would be admissible at trial. The Court will assume that the applicant is content to have the strength of the case at trial measured against the facts set out in the applicant's affidavit.

4.5 If, in such a case, the respondent files an affidavit in reply to the applicant's affidavit, the respondent's affidavit will be treated as a statement of the respondent's factual case in the proceeding, whether or not it contains evidence that will be admissible at trial. The Court will assume that the respondent is content to have the strength of the respondent's defence at trial measured against the responses and facts set out in the respondent's affidavit. Where a respondent does not file an affidavit, the Court will assume that the respondent is content to have the strength of the respondent's defence at trial measured against the facts set out in the applicant's affidavit.

4.6 In the normal course, the parties may expect that the Court will facilitate the filing of an affidavit by the respondent within 28 days after the date of service of the originating application.

4.7 Where relief is claimed in the nature of a constitutional writ under s 39B of the Judiciary Act against the Fair Work Commission, each party bringing the application shall be named as the First Applicant, Second Applicant and so on. Each of the other parties to the proceeding before the Fair Work Commission shall be named as the First Respondent, Second Respondent and so on. The Fair Work Commission shall be named as the last respondent. The names of the President, Vice Presidents, Deputy Presidents, Commissioners, Members or persons holding delegations should not appear in the title of the proceeding.

4.8 Where relief under s 39B of the Judiciary Act or s 563(b) of the Fair Work Act is claimed against the Fair Work Commission, the application will, as a matter of course, be reviewed by the National Appeals Coordinating Judge, National Operations Registrar and Chief Justice in order to decide whether a single judge or a Full Court should hear the matter. To facilitate that process, when such an application is filed, the applicant should file, in addition to an affidavit or affidavits in support, a statement as to what the error is that is said to give rise to relief under s 39B or s 563(b) and whether, and if so why, the application should or should not be heard by a Full Court. If a degree of expedition is required in relation to such an application, that fact and the reasons for expedition should be clearly stated in the supporting material.

5. Case Management

Approach to Case Management

5.1 Parties and their representatives should familiarise themselves with the guiding case management information set out in Part 8 of the Central Practice Note. This practice note should always be read with the Central Practice Note.

Case Management Hearing

5.2 After the close of pleadings, or the expiration of the time within which the respondent's affidavit was to be filed, the Court will list the proceeding for the conduct of a case management hearing.

5.3 The parties will be expected to give particular attention to the following matters at the case management hearing:

(a) the nature of the case and the areas of factual and legal dispute;

(b) whether the proceeding is more appropriately heard in the Federal Circuit Court or whether the matter should, or is required, to be heard by a Full Court;

(c) any need for discovery;

(d) whether the proceeding should be sent for mediation, and if so when, and by whom the mediation should be conducted;

(e) the means by which evidence is to be adduced at the trial of the proceeding;

(f) the exchange of outlines of evidence and lists of documents to be tendered at trial;

(g) in an appropriate case, the filing of affidavits for use at the trial;

(h) the preparation of a court book, whether electronic or otherwise;

(i) the anticipated length of the trial;

(j) in a proceeding in which the imposition of a penalty on an individual is claimed:

(i) such modifications of normal procedures as will accommodate the making of an election by him or her to file a defence and/or to lead evidence; and

(ii) the appropriateness of separating the trial as between issues of liability and penalty;

(k) the timing of the trial and of the interlocutory steps required before the trial. Parties should come prepared with appropriate trial dates and an estimate of the length of the trial.

5.4 In the normal case, the Court will assume that apart from any necessary pre-trial hearing, after the first case management hearing, further directions hearings and case management hearings will not be required.

6. Alternative Dispute Resolution

6.1 Parties and their representatives should familiarise themselves with the guiding alternative dispute resolution ("ADR") information set out in Part 9 of the Central Practice Note.

7. Discovery

7.1 Parties and their representatives should familiarise themselves with the information in Part 10 of the Central Practice Note.

8. Pre-trial Case Management Hearing

8.1 Parties and their representatives should familiarise themselves with the information in Part 13 of the Central Practice Note  and Part 9 of this practice note below.

9. The Trial

9.1 To the extent that the proceeding involves questions of fact that are in controversy or are not admitted (under Part 22 of the Federal Court Rules or otherwise), the Court will usually expect evidence-in-chief at trial to be led orally. The parties should not assume that the Court will necessarily accept an agreement reached by the parties to the contrary (under s 47(5) of the Federal Court Act). The parties should raise with the Court any agreement (under s 47(5) of the Federal Court Act) for the giving of evidence by affidavit in a timely way before the trial.

9.2 To the extent that evidence is to be given orally at the final hearing, the parties will be expected to exchange (but not to file) an outline of the evidence proposed to be given in chief by each witness. This should be done, wherever possible, prior to the pre-trial case management hearing. However, where that is not possible, this should be done no later than 14 days before the commencement of the final hearing. Such outlines of evidence are by way of disclosure of the case of the party and will not, subject to the leave of the Court, be the subject of cross-examination or be tendered as a prior statement of the witness.

10. Costs

10.1 Costs in Fair Work-related matters may only be ordered in certain circumstances (see s 570 of the Fair Work Act). The Court will entertain an application for costs in the event of non-compliance with the Court's directions or orders, or this practice note.

11. Further Practice Information and Resources

11.1 Further information about practice and procedure in this NPA can be found on the Employment and Industrial Relations NPA "homepage" of the Court's website.

11.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

Enquiries and Contact Information

11.3 General queries concerning the practice arrangements in the Employment and Industrial Relations NPA should be raised, at first instance, with your local registry. If a registry officer is unable to answer your query, please ask to speak to the NCF Coordinator in the local registry. Contact details for your local registry  are available on the Court's website.

 

J L B ALLSOP
Chief Justice
25 October 2016