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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
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) |
|
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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
- 18 Aug 2022:
Alasady v Australian Capital Territory [2022] FCA 967
INDUSTRIAL LAW - application for an interlocutory injunction preventing the respondents from taking any further action in relation to the disciplinary investigation or procedure - alleged breaches of the investigation procedures under enterprise agreements -- whether apprehended bias on the part of the person who will be the sanction delegate…
Judge: Raper J - 17 Aug 2022:
Association of Professional Engineers, Scientists and Managers Australia v Peabody Energy Australia Coal Pty Ltd [2022] FCA 945
INDUSTRIAL LAW - respondent operated two black coal mines in New South Wales and Queensland - employees at each mine made redundant due to closure of mine and redundant positions - applicant initiated proceedings for contravention of a "modern award" per s 45 of the Fair Work Act 2009 (Cth) alleging respondent failed to pay employees certain…
Judge: Wigney J - 8 Aug 2022:
Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130
INDUSTRIAL LAW - application for judicial review of a decision of the Fair Work Commission dismissing applicant's application under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) for a secret ballot to be held to decide whether the Mining and Energy Division of the respondent Union should withdraw from the organisation - whether…
Judge: Katzmann, Rangiah and O'Callaghan JJ - 29 Jul 2022:
Elvin v Fair Work Ombudsman [2022] FCA 881
PRACTICE AND PROCEDURE - application for extension of time and leave to appeal - where no relevant judgment means court does not have jurisdiction - where leave to appeal not granted from orders interlocutory in nature - application refused
Judge: Abraham J - 29 Jul 2022:
Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899
COSTS - application for costs to be payable in a proceeding in which s 570 of the Fair Work Act 2009 (Cth) applies - application for such costs to be payable on an indemnity basis and to be assessable and payable forthwith - application granted
Judge: Goodman J - 27 Jul 2022:
Walker v Southcott Pty Ltd [2022] FCA 864
PRACTICE AND PROCEDURE -- Interlocutory application by applicant for leave to file amended pleading -- where in Originating application, applicant brought claims under Fair Work Act 2009 (Cth) (FW Act) in relation to his standing down and dismissal by respondent and claims for breach of contract -- where respondent issued Interlocutory application …
Judge: Besanko J - 12 Jul 2022:
Secretary, Attorney-General's Department v Warren [2022] FCAFC 118
INDUSTRIAL LAW - construction of the phrase "attributable to" the entitlement in s 19(2)(a) of the Fair Entitlements Guarantee Act 2012 (Cth) - whether the employer's payment of a casual loading to the applicant during the employment was "attributable to" the applicant's entitlements to annual leave and severance pay - held that it was: appeal…
Judge: Rares, Thawley and Anderson JJ - 11 Jul 2022:
Van den Berg v Monash Health [2022] FCA 796
COURTS - practice and procedure - whether order by a judge of the Federal Circuit and Family Court of Australia (Division 2) to transfer civil proceeding to the Federal Court of Australia should be confirmed pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth) - where judge failed to consider mandatory criteria for transfer - where…
Judge: O'Callaghan J - 8 Jul 2022:
Ocampo v Australian Postal Corporation [2022] FCA 789
PRACTICE AND PROCEDURE - application for an extension of time within which to appeal from decisions of the Administrative Appeals Tribunal - where tribunal dismissed applicant's claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) - extension neither consented to nor opposed - whether applicant has a credible explanation for…
Judge: Snaden J - 8 Jul 2022:
Carter v Orix Australia Corporation Ltd [2022] FCA 784
PRACTICE AND PROCEDURE -- interlocutory application to file amended originating application -- where amendments identify statutory bases for claims with respect to unpaid accrued annual leave already made in amended statement of claim previously filed -- where respondent did not oppose amendments or claim to be prejudiced by them, whether leave…
Judge: Katzmann J
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