The Federal Government has announced amendments to the Fair Work Act 2009 (Cth) aimed at improving the efficiency of proceedings before the Fair Work Commission (FWC).
The proposed changes will:
-
Allow the FWC to refer general protections dismissal and unlawful termination disputes directly to conciliation or mediation without first determining jurisdictional issues, such as whether a dismissal or termination occurred.
-
Enable FWC staff to conduct conferences and make decisions for general protections dismissal and unlawful termination matters, aligning these processes with existing unfair dismissal procedures.
-
Empower the FWC to dismiss unfair deactivation (gig workers who were booted off a platform for no valid reason eg. Uber drivers) and unfair dismissal applications that are frivolous, vexatious, or have no reasonable prospects of success. Where this occurs, a Full Bench may also restrict the applicant from lodging further specified claims without the Commission’s permission.
-
Permit the FWC to determine certain contested matters “on the papers” (without a conference or hearing) where both parties agree and the Commission is satisfied the matter can be fairly decided in that way.
Additional reforms include:
-
Clarifying that the Fair Work Act’s prohibition on discrimination against employers will not apply where the Commonwealth gives preference in procurement contracts to employers covered by enterprise agreements, including agreements covering unions.
-
Streamlining the process for supported bargaining authorisations where the FWC has previously authorised bargaining for the same or substantially similar groups of employees and employers.
-
Introducing an income threshold for regulated road transport contractors seeking access to unfair termination and unfair contract protections. Only contractors earning below the prescribed threshold will be eligible for these protections.
While these amendments are intended to reduce procedural delays, improve the efficiency of the Fair Work Commission (FWC), and refine access to workplace protections, I remain somewhat skeptical about their practical utility.
Recently, I acted in an unfair dismissal matter before the FWC that involved a clear and straightforward jurisdictional objection (these are usually heard before the case itself and generally mean the matter can’t proceed to be heard by the member). In my view, the objection should have prevented the matter from progressing to a conference. As would be expected in those circumstances, I requested that the jurisdictional issue be determined “on the papers”.
After waiting four weeks without a response, I enquired about the status of the application, as the delay was preventing the matter from progressing. I was advised that the Commission’s backlog remained so significant that a Member was unlikely to consider the objection for a further one to two months.
This example is only one of several that informed my views when writing this piece. There are many similar issues confronting practitioners acting for respondents, including the increasing prevalence of AI-assisted applications that are often poorly drafted, confuse distinct legal concepts, and advance illogical or unsustainable arguments. While AI has the potential to improve access to justice, it also has the capacity to increase the burden on respondents and the Commission where applications lack proper legal foundation. Which to be clear, is exactly what we are seeing now.
In my opinion the proposed reforms are well intentioned and reflect a genuine desire to improve the Commission’s efficiency. However, unless the FWC is adequately resourced to manage its existing caseload, procedural amendments alone are unlikely to deliver meaningful improvements for parties. In practice, the Commission’s current delays continue to undermine the timely resolution of workplace disputes, regardless of the procedural mechanisms available.