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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

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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 and Family 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 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.


(A Notice of appeal must be filed within 28 days of the judgment being delivered by the Federal Circuit and Family Court).

Accompanied by:

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

Appeal from the Federal Circuit and Family Court - Out of time.


(If the party is outside the 28 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 and Family Court which is appealed from
  • Reasons for Judgment of the Federal Circuit and Family 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

  • 12 May 2022: Ashby v Commonwealth of Australia [2022] FCAFC 77
    ADMINISTRATIVE LAW - where s 65(1) of the Public Governance Performance and Accountability Act 1913 (Cth) (PGPA Act) permits the Finance Minister on behalf of the Commonwealth to authorise acts of grace payments if the Minister considers it appropriate to do so because of special circumstances -- where appellant applied under the PGPA Act for an…
    Judge: Katzmann, Abraham and Goodman JJ
  • 10 May 2022: Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
    INDUSTRIAL LAW - appeal from a decision of the Federal Circuit Court of Australia - where primary judge held that the first and second respondents contravened s 535 of the Fair Work Act 2009 (Cth) and otherwise dismissed the application with no order imposing pecuniary penalties - whether the primary judge erred by not providing procedural…
    Judge: Rangiah, Downes and McElwaine JJ
  • 9 May 2022: BioGiene Pty Limited v Mullan [2022] FCAFC 73
    INDUSTRIAL LAW - award coverage - appellant employed respondent as cleaner in abattoir under the terms of the Meat Industry Award 2010 ("MIA") - respondent applied to South Australian Employment Court ("SAEC") alleging failure by appellant to comply with the Cleaning Services Award 2010 ("CSA") - SAEC held respondent's employment covered by the…
    Judge: Charlesworth, O'Callaghan and Snaden JJ
  • 6 May 2022: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) [2022] FCA 492
    PRACTICE AND PROCEDURE - oral application pursuant to rr 17.01(3) and 16.53 of the Federal Court Rules 2011 (Cth) for leave to file a further amended statement of claim - whether the pleading stated with sufficient clarity the case that must be met - whether the proposed amended statement of claim is likely to cause embarrassment in the…
    Judge: O'Sullivan J
  • 6 May 2022: Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512
    INDUSTRIAL LAW -- where company conducts business as a meat wholesaler but also engages in meat processing, whether premises it occupies are a "meat processing establishment" or a "meat retail establishment" within the meaning of those terms in the Meat Industry Award 2010 -- where employee hired as a knife hand/labourer but where no such…
    Judge: Katzmann J
  • 5 May 2022: Central Innovation Pty Ltd v Garner (No 5) [2022] FCA 502
    COSTS - where costs assessment conducted by Judicial Registrar and reasons published - question of indemnity costs referred to trial judge to consider Calderbank offer and the offer of compromise from applicants - held: indemnity costs to be paid by first respondent
    Judge: Bromwich J
  • 4 May 2022: Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481
    INDUSTRIAL LAW - employment - appeal from Federal Circuit Court of Australia ("FCCA") - adverse action - workplace rights - complaint or inquiry in relation to employment - temporary absence from work due to illness or injury - primary claim against employer respondent - accessorial claim against human respondents - FCCA partially upheld…
    Judge: Snaden J
  • 4 May 2022: Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71
    INDUSTRIAL LAW - employer appeal - adverse action - decision of Qantas to outsource ground handling operations during COVID-19 pandemic - appeal from the decision of the primary judge finding that Qantas Airways Ltd contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) - construction of s 340(1)(b) of the FW Act - whether s 340(1)(b)…
    Judge: Bromberg, Rangiah and Bromwich JJ
  • 2 May 2022: Petersen v Workpac Pty Ltd [2022] FCA 476
    PRACTICE AND PROCEDURE - representative proceedings - applications under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceedings - discontinuances approved
    Judge: Murphy J
  • 29 Apr 2022: Turner v Ready Workforce (A division of Chandler Macleod) Pty Ltd [2022] FCA 467
    PRACTICE AND PROCEDURE - representative proceeding - application under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceeding - discontinuance approved
    Judge: Murphy 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.