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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

  • 24 Jan 2020: Victorian Xray Group Pty Ltd v Ho [2020] FCA 27
    PRACTICE AND PROCEDURE - appeal from decision of magistrate sitting in the Industrial Division of the Magistrates' Court of Victoria - notice of objection to competency - whether appeal lies to the Federal Court by reason of s. 565 of the Fair Work Act 2009 (Cth) - whether the magistrate was exercising jurisdiction under the Fair Work Act 2009…
    Judge: Steward J
  • 6 Jan 2020: Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5
    PRACTICE AND PROCEDURE - Federal Court of Australia Act 1976 (Cth) s 20(2) - whether single judge of the Federal Court of Australia lacks jurisdiction to determine whether Fair Work Commission has jurisdiction under Part 3-1 of the Fair Work Act 2009 (Cth)
    Judge: Kerr J
  • 23 Dec 2019: Newton v Australian Postal Corporation (No 2) [2019] FCA 2192
    INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ("FW Act"), ss 340, 348 and 355 - where in reliance upon s 348 union representative alleged to have made threats to take action against employer with intent to coerce employer to engage in industrial activity, being removal of employee from position and cessation of a project ("project") - where in…
    Judge: Bromberg J
  • 19 Dec 2019: Rooney v AGL Energy Limited [2019] FCA 2157
    PRACTICE AND PROCEDURE - subpoena - objection to inspection of documents produced - whether inspection would contravene s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - objection dismissed
    Judge: Snaden J
  • 19 Dec 2019: Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146
    INDUSTRIAL LAW - interlocutory application for summary dismissal of proceedings - relevant principles of statutory construction - where applicant and respondent were not parties to previous proceeding before Fair Work Commission - whether originating application is statute barred by s 725 of the Fair Work Act 2009 (Cth) - whether s 725 is…
    Judge: Collier J
  • 19 Dec 2019: Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2019] FCA 2145
    INDUSTRIAL LAW - construction of enterprise agreement - whether overtime hours required by respondent reasonable - where "reasonable overtime" had been defined in the enterprise agreement - whether respondent contravened s 50 of the Fair Work Act 2009 (Cth)
    Judge: Collier J
  • 19 Dec 2019: White, in the matter of an election for an office in Transport Workers' Union of Australia, Queensland Branch [2019] FCA 2131
    INDUSTRIAL LAW - Inquiry into election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) - 2018 Transport Workers' Union of Australia Queensland Branch Election - allegation of irregularities - whether applicant bears onus of establishing an irregularity - whether the comments made by union…
    Judge: Collier J
  • 18 Dec 2019: Martin v Norton Rose Fulbright Australia [2019] FCAFC 234
    PRACTICE AND PROCEDURE - leave to appeal from interlocutory decision granted - failure to file notice of appeal within time - application for extension of time - extension refused - delay on part of applicant - insufficient prospects of success - interests of justice - finality in litigation EVIDENCE - claim for legal professional privilege -…
    Judge: Besanko, Flick and Abraham JJ
  • 13 Dec 2019: Pizzeys Patent and Trade Mark Attorneys Pty Limited v Bennett [2019] FCA 2084
    DISCOVERY - application for preliminary discovery - whether it is objectively reasonable that the prospective applicant believes there to be a misuse of confidential information by the prospective respondents - sufficient evidence to support reasonableness of belief - sufficiency of information already obtained - discretion - application granted
    Judge: Jagot J
  • 13 Dec 2019: Whelan v Cigarette & Gift Warehouse [2019] FCA 2064
    INDUSTRIAL LAW - penalty hearing - court determination of penalties to be imposed - broad discretion to determine quantum of penalties to be imposed - relevant considerations in determining appropriate penalties - whether penalty is proportionate to the offence - whether penalties should be paid to the applicant COSTS - application by both parties …
    Judge: Collier 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.