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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:
Average time taken to trial in an E&IR matter
Average time taken to trial in an E&IR matter
- 2016/17: 10.5
- 2017/18:10.2
- 2018/19:10.3
- 2019/20:11.6
- 2020/21: 11.5
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.
Central Practice Note (CPN-1)
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:
- Civil matters
- 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)
- An appeal from the Administrative Appeals Tribunal (AAT)
- An appeal from the Federal Circuit and Family Court to the Federal Court
- 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) | ||
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 |
| |
Application for a declaration in relation to a matter arising under the Fair Work Act |
| |
Application for an injunction in relation to a matter arising under the Fair Work Act |
|
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 |
|
4. An appeal from the Federal Circuit and Family Court to the Federal Court
Appeal | Form number | Federal Court Rules |
|---|---|---|
Appeal to the Federal Court from a judgment of the Federal Circuit and Family Court. |
Accompanied by:
|
|
Appeal from the Federal Circuit and Family Court - Out of time. | Accompanied by:
|
|
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 |
For further procedural and case management information you should refer to the Central Practice Note and the Employment and Industrial Relations Practice Note.
Legislation
- Federal Court Act 1976 (Cth)
- Fair Work Act 2009 (Cth)
- Fair Work (Registered Organisations) Act 2009 (Cth)
- Fair Work (Building Industry) Act 2012 (Cth)
- Workplace Relations Act 1996 (Cth)
- Competition and Consumer Act 2010 (Cth)
- Public Service Act 1999 (Cth)
- Independent Contractors Act 2006 (Cth)
- Safety, Rehabilitation and Compensation Act 1988 (Cth)
- Administrative Appeals Tribunal Act 1975 (Cth)
- Work Health and Safety Act 2011 (Cth)
- Judiciary Act 1903 (Cth)
Latest Judgments
- 24 Nov 2022:
Bellou v Victoria University (No 5) [2022] FCA 1408
PRACTICE AND PROCEDURE - interlocutory application to vacate pending trial - where applicant relies on medical incapacity - whether medical evidence sufficient to demonstrate incapacity to prosecute proceeding - where multiple trial dates previously vacated - orders made
Judge: Snaden J - 24 Nov 2022:
Australian Nursing and Midwifery Federation v Kitaya Holdings Pty Ltd [2022] FCA 1394
INDUSTRIAL LAW - alleged contravention or proposed contravention of s 50 of the Fair Work Act 2009 (Cth) (Fair Work Act) - whether interim injunction pursuant to ss 545(1) and (2)(a) of the Fair Work Act and s 23 of the Federal Court of Australia Act 1976 (Cth) should issue PRACTICE AND PROCEDURE - application for interim injunction - whether…
Judge: Hespe J - 23 Nov 2022:
Woodside Energy Limited v Australian Workers' Union [2022] FCA 1391
PRACTICE AND PROCEDURE - application for interlocutory injunction to restrain Fair Work Commission from taking any further steps in an application for a majority support determination pending hearing and determination of application for judicial review under s 39B of Judiciary Act 1903 (Cth) - where application is in the nature of a stay of…
Judge: Katzmann J - 17 Nov 2022:
National Tertiary Education Union v Monash University [2022] FCA 1368
PRACTICE AND PROCEDURE - application for stay of proceeding pending determination of a proceeding in the Fair Work Commission ("FWC") - where application for variation of enterprise agreement before FWC - where contraventions of section 50 of the Fair Work Act 2009 (Cth) alleged in this court - whether proper basis for variation application -…
Judge: Snaden J - 15 Nov 2022:
Hot Wok Food Makers Pty Ltd v United Workers Union [2022] FCA 1417
PRACTICE AND PROCEDURE - interlocutory injunctions - where applicant seeks to restrain proceedings in the Fair Work Commission - where Full Bench of the Fair Work Commission issued attendance notices as a result of "concerns" identified by it during hearing of an appeal - where applicant alleges Full Bench had misconceived its appellate…
Judge: Logan J - 15 Nov 2022:
Askari v Life Without Barriers [2022] FCA 1347
PRACTICE AND PROCEDURE - representative proceeding - application by respondent for an order that the proceeding be dismissed immediately pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) - whether applicant is in default pursuant to r 5.22(d) of the Federal Court Rules 2011 (Cth) by failing to prosecute the proceeding with due…
Judge: O'Callaghan J - 11 Nov 2022:
Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345
INDUSTRIAL LAW - s 340 Fair Work Act 2009 (Cth) - whether adverse action taken against employee for exercising a workplace right - whether employee exercised workplace right - "workplace instruments" - s 12 of the Fair Work Act - whether Safe Loading Standard Operating Procedure a 'workplace instrument' - whether employer refused services of…
Judge: Collier J - 9 Nov 2022:
AEI Insurance Group Pty Ltd v Martin [2022] FCA 1384
CORPORATIONS - application for interlocutory injunction - employment contract - restraint, termination and confidentiality clauses - breach of restraint - where clients of the plaintiff were provided with the defendant's phone number and subsequently became clients of the defendant's new employer - prima facie case established - where damages…
Judge: Wigney J - 8 Nov 2022:
Revill v John Holland Group Pty Ltd [2022] FCAFC 178
APPEAL - application for leave to appeal - new points on appeal - further evidence on appeal - interlocutory or final judgment - finality - re-open - costs under the Fair Work Act 2009 (Cth) - corporate group employer - enterprise agreement employer - leave refused
Judge: Bromberg, Banks-smith and Feutrill JJ - 7 Nov 2022:
Gall v Domino's Pizza Enterprises Limited (No 3) [2022] FCA 1330
PRIVILEGE - challenge to claims of privilege over two documents - where respondent asserts legal professional privilege over first document - where applicant alleges that partial disclosure of the document has effected a complete waiver of that privilege - whether an inconsistency arises from the respondent's reliance on unredacted material and…
Judge: Colvin J
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