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About this NPA

The Employment and Industrial Relations National Practice Area (NPA) covers matters that are substantially of a character of employment and/or industrial relations, including:

  • 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)
  • matters arising under the Competition and Consumer Act 2010 (Cth) relevant to boycotts, the conduct of employee organisations, and 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, such as may arise under ss 45D, 45DA, 45DC, 45DD, 45E, 45EA and 45EB, and s 31 of Schedule 2, of that Act
  • matters arising under any anti-discrimination legislation or regulation of the Commonwealth or a 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
  • matters arising under the Public Service Act 1999 (Cth)
  • matters arising under the Independent Contractors Act 2006 (Cth)
  • matters arising under the Safety, Rehabilitation and Compensation Act 1988 (Cth), including appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)
  • 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 of the Court
  • employment-related matters involving an administrative decision by a person holding office under a Commonwealth Act
  • matters in which mandamus, prohibition or similar relief is claimed against the Fair Work Commission
  • matters remitted from the High Court of Australia in which the relief sought relates to an act or omission of the Fair Work Commission
  • employment-related matters involving appeals or referrals from the Administrative Appeals Tribunal
  • matters arising under a contract of employment or involving rights, entitlements or obligations of any employer or employee as such any other proceeding the character of which is substantially one of employment or industrial relations.

For a number of the matters listed above, the Federal Court is not the only court, and may not be the most appropriate court, in which to commence a proceeding. Section 539 of the Fair Work Act (contravention of civil remedy) is an example of a provision which identifies the courts in which proceedings may be commenced. In some cases, it may be necessary first to obtain the certificate of the Fair Work Commission: see, e.g. ss 370 and 778 of the Fair Work Act (unlawful termination applications). Intending applicants should give careful attention to these issues and requirements.

For further information, see also:

Practice Notes

All practice notes are to be read with the Central Practice Note.  It is the essential guide to practice in the Federal Court in all proceedings.

The practice note for this NPA sets out the arrangements for the management of employment and industrial relations proceedings:

NPA practice note:

Other practice notes which may be relevant to this NPA include:

General practice notes:

Forms, Rules & Fees

Filing fees for commencing a proceeding in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

Division 34.1 of the Federal Court Rules - Fair work proceedings

Parties to a proceeding that the Fair Work Act or the Registered Organisations Act applies must comply with Division 34.1 of the Federal Court Rules 2011 (Cth) (Rules) (see r 34.02).

The Court may in its discretion make orders dispensing with the requirements of the Rules or make any order that is inconsistent with the Rules.

Parties should consider whether it is necessary to file a Genuine Steps Statement (Form 16) in certain proceedings in this NPA - see r 8.02 of the Rules and the Civil Dispute Resolution Act 2011 (Cth) (including sections 6, 7 and 16).

Commencing a proceeding

Every proceeding in the Federal Court must be commenced in a Division - either the General Division or the Fair Work Division of the Court. Many of the proceedings in this NPA will be required to be commenced in the Fair Work Division, including proceedings under the Fair Work Act, the Fair Work (Registered Organisations) Act and the Fair Work (Building Industry) Act. In other situations, intending applicants should refer to the terms of the legislation under which the proceeding is brought. In the absence of a statutory requirement for a proceeding to be commenced in the Fair Work Division, it must be commenced in the General Division.

The types of cases within this NPA may fall within the following categories:

  1. Civil matters
  2. An application made to the Federal Court under one of its other heads of jurisdiction (writ of mandamus, prohibition or injunction; or declaration or injunction)
  3. An appeal from the Administrative Appeals Tribunal (AAT)
  4. An appeal from the Federal Circuit Court to the Federal Court
  5. Criminal matters.

The tables below set out various types of matters in this NPA and the forms to be completed and the associated rules. The tables are not exhaustive.

Before commencing a proceeding you must ensure you have complied with the relevant legislation and the Rules, including Division 34.1.

1.  Civil matters

Type of matter

Forms

Federal Court Rules

Originating application alleging dismissal in contravention of a general protection

(Part 3-1 Fair Work Act)

Must be accompanied by an s 369 certificate issued by Fair Work Commission

Application in relation to the alleged unlawful termination of employment occurring on or after 1 July 2009

 

 

Must be accompanied by an s 777 certificate issued by Fair Work Commission, except where it is started by a Fair Work Inspector

Application in relation to alleged discrimination

(s 351(1) Fair Work Act)

Must be accompanied by an s 777 certificate issued by Fair Work Commission, except where it is started by a Fair Work Inspector

Originating application for rule to show cause

(Section 163, 164, 164A, and 167 of the Registered Organisations Act)

Applications for 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 any association of employers or employees or their officers or members in that capacity

(ss45D, 45DA, 45DC, 45DD, 45E, 45EA and 45EB, and s 31 of Schedule 2 of the Competition and Consumer Act)

  • Rules 8.01(1), 8.04(1) and 8.05(1)(a)
  • Rule 29.02(1)

Application for an inquiry into an alleged irregularity in relation to a ballot under Part 2 of Chapter 3 of the Registered Organisations Act

(s 69(1) Registered Organisations Act)

Application ballot to be held to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation

(s 94 Registered Organisations Act)

Application for an inquiry into an alleged irregularity in relation to a ballot held under Part 3 of Chapter 3 of the Registered Organisations Act

s 108(1) Registered Organisations Act

Application for an order in relation to the withdrawal of a constituent part of an amalgamated organisation from the organisation

(s 109(1) Registered Organisations Act)

Application for an inquiry in relation to an election conducted for an office in an organisation or branch of an organisation

(s 200 Registered Organisations Act)

An interim order in relation to an inquiry concerning an election for an office in an organisation or a branch of an organisation

(s 204 Registered Organisations Act)

An application for an order in relation to an inquiry about an alleged irregularity concerning a ballot conducted under Part 2 of Chapter 3 of the Registered Organisations Act

(regulation 77(1) Registered Organisations Regulations 2009)


2.  An application made to the Federal Court under one of its other heads of jurisdiction

An application may also be commenced in the Federal Court for a range of remedies, such as for a writ of mandamus, prohibition or injunction; a declaration; or another type of injunctive relief.

Type of matter

Form number

Federal Court Rules

Application for a writ of mandamus, prohibition or injunction, pursuant to the Federal Court's jurisdiction

(s 39B Judiciary Act)

Application for a declaration in relation to a matter arising under the Fair Work Act

(s 21 Federal Court of Australia Act)

  • Division 34.01

Application for an injunction in relation to a matter arising under the Fair Work Act

(s 23 Federal Court of Australia Act)

  • Division 34.01

3.  An appeal from the Administrative Appeals Tribunal (AAT)

Type of matter

Form number

Federal Court Rules

Application for an appeal or referral from the AAT

(Administrative Appeals Tribunal Act)


4.  An appeal from the Federal Circuit Court to the Federal Court

Appeal

Form number

Federal Court Rules

Appeal to the Federal Court from a judgment of the Federal Circuit Court.

(A Notice of appeal must be filed within 21 days of the judgment being delivered by the Federal Circuit Court).

Accompanied by:

  • Judgment or Order of the Federal Circuit Court which is appealed from
  • Reasons for Judgment of the Federal Circuit Court (if published)

Appeal from the Federal Circuit Court - Out of time.

(If the party is outside the 21 day time limit, the party may ask the Federal Court to consider hearing the appeal, by filing an application for an extension of time).

Accompanied by:

  • Form 59 - Affidavit
  • Judgment or Order of the Federal Circuit Court which is appealed from
  • Reasons for Judgment of the Federal Circuit Court (if published)
  • Draft Notice of appeal

5.  Criminal matters

Type of matter

Form number

Federal Court Rules

An applicant who wants to bring a prosecution against a respondent for an offence must start the prosecution by filing a summons and an "Information"

If the respondent does not appear on the date required for appearance, the applicant may apply to the Court for the issue of a warrant for the respondent's arrest

  • Rules 34.14(2), 41.05(1), 42.01 and 42.14(3)
  • Rule 29.02(1)

For further procedural and case management information you should refer to the Central Practice Note and the Employment and Industrial Relations Practice Note.

Latest Judgments

  • 21 Oct 2019: Birner v Aircraft Turnaround Engineering Pty Ltd (No 2) [2019] FCA 1706
    COSTS - application for successful respondent's costs - s 570 Fair Work Act 2009 (Cth) - whether the appeal was instituted without reasonable cause
    Judge: Collier J
  • 18 Oct 2019: Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718
    COSTS - application by respondent for costs consequent on applicant's amendment to the statement of claim - application for costs to be taxed and paid forthwith - where applicant is self-represented - where amendment made in the interests of effective case management - where no reason to depart from ordinary rule - orders made for applicant to pay …
    Judge: Colvin J
  • 17 Oct 2019: Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd [2019] FCA 1696
    INDUSTRIAL LAW - principles of construction of enterprise agreements INDUSTRIAL LAW - mine production bonus scheme - whether bonus only payable on holidays from Monday to Friday - whether payable on a weekend INDUSTRIAL LAW - whether specific provision excludes general provision in respect to payment of shift loading
    Judge: Flick J
  • 16 Oct 2019: Fair Work Ombudsman v Hu (No 2) [2019] FCAFC 175
    PRACTICE AND PROCEDURE - s 570(2) of the Fair Work Act 2009 (Cth) - application for costs - conduct of appellant was not unreasonable such as to cause costs to be incurred - appeal was not such as to be instituted without reasonable cause - application refused
    Judge: Flick, Reeves and Bromberg JJ
  • 16 Oct 2019: Leach v Comcare [2019] FCA 1698
    WORKERS' COMPENSATION - appeal of a decision of the Administrative Appeals Tribunal (the Tribunal) with respect to the operation of s 53(3)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) - where the Tribunal found that the appellant had not advised Comcare of his injury "as soon as practicable" after becoming aware of…
    Judge: Reeves J
  • 16 Oct 2019: Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680
    INDUSTRIAL LAW - application for judicial review of decision of Full Bench of Fair Work Commission - claim for unfair dismissal under Pt 3-2 Div 2 of Fair Work Act 2009 (Cth) - whether casual employment met criteria in s 384(2)(a)(i) and s 384(2)(a)(ii) of Fair Work Act - point in time employee has objectively reasonable grounds for expectation of …
    Judge: Jackson J
  • 14 Oct 2019: Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654
    INDUSTRIAL LAW - pecuniary penalties - agreed contraventions - false or misleading statement about an obligation to engage in "industrial activity" - application of "no ticket, no start" philosophy - contravener knew statement was misleading, or was reckless as to that fact - analysis of the nature, gravity, character and seriousness of the…
    Judge: Snaden J
  • 11 Oct 2019: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667
    INDUSTRIAL LAW - admitted contraventions of s 348 of the Fair Work Act 2009 (Cth) ("Act") which provides that a person must not organise or take or threaten to take any action to coerce another person to engage in industrial activity - admitted contraventions of s 346(c) of the Act which provides that a person must not take adverse action against…
    Judge: Bromberg J
  • 11 Oct 2019: Australian Workers' Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671
    INDUSTRIAL LAW - Fair Work (Registered Organisations) Act 2009 (Cth) ("RO Act"): s 331(2), power of Commissioner of Registered Organisations to conduct an investigation as to whether a civil penalty provision has been contravened if satisfied reasonable grounds for doing so - where Commissioner commenced investigation as to whether ss 237, 285,…
    Judge: Bromberg J
  • 9 Oct 2019: Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1647
    INDUSTRIAL LAW - statement of agreed facts - agreement as to form of declaratory relief and penalties - principles to be applied - whether agreed penalties within permissible range
    Judge: Flick J

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Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.