The Commission’s dispute resolution role under the Fair Work Act 2009 (Fair Work Act) encompasses two key areas:

  • disputes arising from provisions in modern awards, agreements, employment contracts and public determinations, and disputes arising from instruments continued under repealed legislation such as workplace agreements, and
  • disputes arising from general protections claims and unlawful termination applications.

Disputes arising from awards, agreements and contracts

Section 739 applications—applications to deal with a dispute—comprised 94 per cent of total dispute applications lodged. This year these applications rose by 11 per cent over the previous reporting period.

A small number of applications (18) were lodged under section 526 of the Fair Work Act. These are disputes where employees have been stood down due to industrial action, a breakdown of machinery or equipment or any other stoppage of work where the employer cannot reasonably be held responsible.

Section 709 applications of the repealed Workplace Relations Act 1996 (WR Act) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 continue to decline markedly. These are applications under repealed legislation for dispute resolution conducted under a workplace agreement.

Table 4—Dispute applications—lodgments
Type of application No. of applications
2011–12 2012–13 2013–14
s.526—Application to deal with a dispute involving stand down 29 19 18
s.699 of repealed WR Act—Application to the Fair Work Commission to have an alternative dispute resolution process conducted 11 4 13
s.709 of repealed WR Act—Application to the Fair Work Commission to have a dispute resolution process conducted under a workplace agreement 319 162 69
s.739—Application to deal with a dispute 1643 2124 2366
s.739—Application to deal with a dispute in relation to flexible working arrangements 27 37 50
Total 2029 2346 2516
Table 5—Dispute applications—timeliness
Type of application Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
s.739—Application to deal with a dispute—lodgment to first conference 15 15 17 38 38 46

Many agreements contain dispute resolution procedures that allow the Commission to arbitrate an outcome if the dispute has not been resolved using more informal methods. The process of resolving disputes by Commission Members includes through mediation, conciliation, expressing an opinion or making a recommendation. If the procedures allow and these measures fail to produce a resolution the process proceeds to arbitration of the dispute with a determination that is binding on the parties.

The time taken for a section 739 dispute to reach its first conference has increased slightly. This corresponds with the 11 per cent increase in the number of applications of this type during the reporting period.

Increasing accessibility

Due to the significant number of applicants seeking to bring a claim without legal or other representation, in July 2012 the Commission initiated a pilot program in Western Australia in which eligible self-represented general protections applicants were referred to the Employment Law Centre of Western Australia for advice on the merits of their application and assistance in the drafting of the relevant form.

The pilot was highly successful. Of the applicants eligible for assistance, 76 per cent took a different course of action upon receipt of advice, either by discontinuing (27 per cent) or amending (49 per cent) their application.

The Commission engaged the RMIT’s Centre for Innovative Justice (the CIJ) to provide an assessment of the program. The CIJ found that there were significant benefits—both to parties and the wider legal process (including respondents)—in self-represented applicants receiving advice on the merits and structure of their claim at an early point in proceedings.

For this reason, the CIJ has recommended that, with certain refinements, the Commission’s program should be continued and expanded to other states and territories.

The Commission is currently considering these recommendations with a view to establishing an ongoing program to assist self-represented applicants.

General protections disputes and unlawful terminations

The general protections provisions of the Fair Work Act are intended to protect people from their employer taking adverse action for prescribed reasons including because of:

  • having or exercising a workplace right
  • freedom of association
  • engaging in industrial activity, and
  • workplace discrimination.

General protections claims are sometimes referred to as adverse action claims. Adverse actions taken against an employee or potential employee might include:

  • dismissing the person
  • not giving the person their legal entitlements
  • changing the person’s job to their disadvantage
  • treating the person differently than others
  • not hiring the person, or
  • offering the person different (and unfair) terms and conditions, compared to other employees.

General protections claims involving dismissal

The bulk of the Commission’s work in the general protections area relates to applications involving dismissal. From 1 January 2014 the Commission’s jurisdiction was expanded to allow arbitration with the parties’ consent of general protections claims involving a dismissal that took effect after that date. Prior to that date the Commission could conciliate a dispute but lacked arbitration powers.

Table 6—General protections involving dismissal—lodgments, 2013–14
Matter type No. of applications lodged Total finalised Manner finalised Number of matters
s.365—General protections 28791 2778 Certificate issued 967
Without certificate issued 1811
(1) 2429 applications were lodged in 2012–13. 2162 applications were lodged in 2011–12.

Chart 11—General protections dispute involving dismissal—monthly comparison

For source data see Table K5

Applications are first dealt with in a private conference. If a resolution cannot be reached the Commission must issue a certificate. The parties can then agree to have the dispute arbitrated by the Commission in a consent arbitration. There were eight applications for consent arbitrations in 2013–14. Table 7 shows how quickly the applications proceeded to first conference and how quickly the matters were finalised. While there are slight variances, the timeframe remained relatively steady.

If the parties do not consent to the Commission arbitrating the dispute, the applicant may apply to the Federal Circuit Court or the Federal Court of Australia to have the matter determined.

Table 7—General protections involving dismissal—timeliness
Type of application Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
General protections disputes involving dismissal s.365—lodgment to first conference 26 29 29 48 56 59
General protections disputes involving dismissal s.365—lodgment to finalisation 35 41 41 97 111 106

General protections not involving dismissal

Applications alleging adverse action not involving dismissal are also dealt with, in the first instance, by private conference—but only if all parties to the dispute agree to participate. If they are not resolved in this process they can only be determined by the Federal Circuit Court or the Federal Court of Australia.

Table 8 and Table 9 show that there was a 40 per cent increase from the previous year in applications made under this category, while there was an increase of only one day in relation to the time taken from lodgment to first conference.

Table 8—General protections other contraventions—lodgments
Type of application No. of applications
2011–12 2012–13 2013–14
General protections—
other contraventions s.372
598 555 779
Table 9—General protections other—timeliness
Type of application Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
General protections—other contraventions s.372—lodgment to first conference 23 25 26 51 49 50

Unlawful terminations

An application can only be made under section 773 of the Fair Work Act if the person is not entitled to make a general protections application. As a result of the broad coverage of the national system, the Commission generally receives a relatively small number of applications (128 for 2012–13 and 130 for 2013–14). The timeliness within which the Commission dealt with 90 per cent of these matters improved markedly in 2013–14, as demonstrated in Table 11.

Table 10—Unlawful termination—lodgments, 2013–14
Matter type No. of applications lodged Total finalised Manner finalised Number of matters
s.773—unlawful termination 1301 128 Certificate issued 9
Without certificate issued 119
(1) 128 applications were lodged in 2012–13. 141 applications were lodged 2011–12.
Table 11—General protections involving unlawful termination applications—timeliness
Type of application Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
Unlawful terminations s.773—lodgment to first conference (days) 26 27 37 51 71 57
Unlawful terminations s.773—lodgment to finalisation (days) 34 32 25 87 102 75