FAIR WORK AMENDMENT ACT 2013 (NO. 73, 2013) - SCHEDULE 4A Consent arbitration for general protections and unlawful termination
FAIR WORK AMENDMENT ACT 2013 (NO. 73, 2013) - SCHEDULE 4A
Consent arbitration for general protections and unlawful termination1 Section 12 (definition of general protections court application )
Omit "370(2)", substitute "368(4)".
2 Subsection 361(1)
Omit ", in proceedings arising from the application,".
3 Section 365 (heading)
After " with a ", insert " dismissal ".
4 Sections 368, 369, 370 and 371
Repeal the sections, substitute:
368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
369 Dealing with a dismissal dispute by arbitration
(1) This section applies if:
(a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and
(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and
(c) the notification:
(i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and
(ii) complies with any requirements prescribed by the procedural rules; and
(d) sections 726, 728, 729, 730, 731 and 732 do not apply.
Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order for reinstatement of the person;
(b) an order for the payment of compensation to the person;
(c) an order for payment of an amount to the person for remuneration lost;
(d) an order to maintain the continuity of the person's employment;
(e) an order to maintain the period of the person's continuous service with the employer.
(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .
5 Section 372 (heading)
After " with a ", insert " non-dismissal ".
6 Subdivision C of Division 8 of Part 3-1
Repeal the Subdivision, substitute:
Subdivision C -- Appeals and costs orders
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
375B Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party ) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC's power to order costs under section 611.
376 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and
(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative ) to represent the person in the dispute; and
(c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.
(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.
(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.
(4) This section does not limit the FWC's power to order costs under section 611.
377 Applications for costs orders
An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.
(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.
(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC:
(a) is not limited to the items of expenditure appearing in the schedule; but
(b) if an item does appear in the schedule--must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.
A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see Part 4-1).
7 Subsection 539(2) (at the end of the cell at table item 11, column 1)
Add:
369(3)
8 Section 544 (note 1)
Omit "subsections 371(2)", substitute "subparagraphs 370(a)(ii)".
9 Paragraph 601(5)(a)
Omit "section 369", substitute "paragraph 368(3)(a)".
10 After paragraph 609(2)(e)
Insert:
(ea) the requirements for making a notification to the FWC;
11 Subparagraph 727(1)(b)(iii)
Omit all the words after "under", substitute "paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".
12 After subsection 727(1)
Insert:
(1A) This section also applies if:
(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
Part 2 -- Unlawful termination
13 Section 12 (definition of unlawful termination court application )
Omit "778(2)", substitute "776(4)".
14 Subsection 539(2) (at the end of the cell at table item 35, column 1)
Add:
777(3)
15 Section 544 (note 1)
Omit "779(2)", substitute "778(a)(ii)".
16 Subparagraph 730(1)(b)(iii)
Omit all the words after "under", substitute "paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".
17 After subsection 730(1)
Insert:
(1A) This section also applies if:
(a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).
18 Paragraph 774(1)(a)
Omit "60", substitute "21".
19 Sections 776, 777, 778, 779, 780 and 781
Repeal the sections, substitute:
776 Dealing with a dispute (other than by arbitration)
(1) If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).
777 Dealing with a dispute by arbitration
(1) This section applies if:
(a) the FWC issues a certificate under paragraph 776(3)(a) in relation to the dispute; and
(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and
(c) the notification:
(i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and
(ii) complies with any requirements prescribed by the procedural rules; and
(d) sections 726, 727, 728, 729, 731 and 732 do not apply.
Note: Sections 726, 727, 728, 729, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 730).
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order for reinstatement of the employee;
(b) an order for the payment of compensation to the employee;
(c) an order for payment of an amount to the employee for remuneration lost;
(d) an order to maintain the continuity of the employee's employment;
(e) an order to maintain the period of the employee's continuous service with the employer.
(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;
(ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the unlawful termination court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 777(1)), an unlawful termination court application cannot be made in relation to the dispute (see sections 730 and 731).
Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 777(2) (which is about arbitration of a dispute) unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 777(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
779A Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party ) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 773; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 781.
(3) This section does not limit the FWC's power to order costs under section 611.
780 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for the FWC to deal with a dispute has been made under section 773; and
(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative ) to represent the person in the dispute; and
(c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.
(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.
(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 781.
(4) This section does not limit the FWC's power to order costs under section 611.
781 Applications for costs orders
An application for an order for costs in relation to an application under section 773 must be made within 14 days after the FWC finishes dealing with the dispute.
(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 779A or 780 in relation to an application under section 773, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.
(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 779A or 780 in relation to an application under section 773, the FWC:
(a) is not limited to the items of expenditure appearing in the schedule; but
(b) if an item does appear in the schedule--must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.
20 Section 782
Omit "section 780", substitute "section 779A or 780".
21 Subsection 783(1)
Omit ", in proceedings arising from the application,".