ByLawyers News and Updates

General Protections List – FED

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A National General Protections List operates in the Federal Court of Australia from 1 September 2024. The list will run as a pilot project for an initial period of eight months.

The adoption of the National General Protections List follows the successful conduct of the Adverse Action List before registrars in the Victorian registry of the Federal Court since 2019.

The Fair Work Act’s general protections provisions in Part 3-1 of Chapter 3 cover:

The purpose of the new list is to allow registrars to conduct initial case management of proceedings filed under the general protections provisions in Part 3-1 of Chapter 3 of the Fair Work Act 2009 (Cth) with the intention of:

  • promoting consistency and efficiency in the case management of general protections proceedings;
  • ensuring that general protections proceedings are heard in the appropriate court, having regard to any points of principle and the quantum of claims;
  • ensuring that the resources of the court in relation to mediation are targeted towards the most appropriate proceedings; and
  • ensuring early and appropriate case management and timetabling of any interlocutory or procedural matters before the proceeding is allocated to a Docket Judge.

The first list will take place on 4 October 2024. It will be conducted virtually.

A registrar will conduct the list every Friday, with staggered start times to accommodate time differences between various states and territories. After initial case management or after mediation with a registrar, cases will be allocated to a Docket Judge.

On filing, the registry will list new general protections proceedings for a first case management hearing within 4-6 weeks of the application being accepted for filing. In advance of each list, parties will receive correspondence from the court with relevant listing information.

The commentary on General protections claims in the By Lawyers Employment Law guide has been updated accordingly.

Employment Law updates – FED

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As employment lawyers would be well aware, employment law updates have been more frequent over the past few years than in any other area of law.

The By Lawyers Employment Law publication has been regularly updated since December 2022 to reflect the staged commencement of various changes under federal legislation including:

  • Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
  • The Fair Work Legislation Amendment (Closing Loopholes) Act 2023
  • Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

The Fair Work Commission has also implemented new rules to reflect these legislative changes.

To ensure coherence and consistency following all these employment law updates, the Employment Law matter plans and commentary have recently been reviewed by our author and our in-house legal editorial team.

Topics covered in the commentary that have been amended and reviewed because of the various employment law updates include:

  • The Overview including the objects of the Fair Work Act;
  • Equal remuneration requirements;
  • Prohibitions on pay secrecy;
  • Anti-discrimination and special measures;
  • Prohibiting sexual harassment in connection with work;
  • Flexible work arrangements;
  • Extensions of unpaid parental leave;
  • Small business redundancy;
  • Regulating labour hire arrangements – fixed term contracts and labour hire orders;
  • Added protection against discrimination under the National Employment Standards, especially concerning family violence;
  • The definition of casual employee;
  • Casual conversion; and
  • Unfair contracts.

See the following By Lawyers News and Updates posts for more details of the changes:

The By Lawyers Employment law publication is up to date with all changes.

Legislative amendments impacting various aspects of enterprise agreements are largely beyond the scope of the publication.

Relevant cases have also been added to 101 Employment Law Answers in the Reference Materials folder on the matter plan, including Feldschuh v Strong Room Technology Pty Ltd [2024] FWCFB 254, in which the Full Bench of the Fair Work Commission (FWC) held that a company director was not also an employee.

New FWC Rules – FED

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The Fair Work Commission (FWC) rules regulate the work of the Fair Work Commission. They include the procedures and requirements for filing and serving applications and responses in the various types of employment disputes under the Fair Work Act 2009 (FWA) and other legislation.

There are new FWC rules from 27 March 2024. The Fair Work Commission Rules 2024 (Cth) have replaced the Fair Work Commission Rules 2013 (Cth).

The new FWC rules remake and update the 2013 version. In addition to updates for some amended legislation and procedure, the rules have been substantially rearranged and renumbered.

There are now separate chapters of the rules for matters under the FWA, matters under other legislation, and for appeals and reviews.

The chapter for FWA matters is divided into separate parts that accord with all the areas of possible applications under the Act:

  1. National Employment Standards;
  2. Modern awards;
  3. Enterprise agreements;
  4. Regulated labour hire arrangement orders;
  5. Transfer of business;
  6. Fixed term contracts;
  7. General protections, unfair dismissal and unlawful termination;
  8. Industrial action;
  9. Right of entry;
  10. Sexual harassment and bullying;
  11. Regulated workers; and
  12. Disputes under dispute procedures in awards, enterprise agreements et cetera.

The requirements for service of applications and responses are now all contained within Schedule 1 to the new rules.

The transitional provisions provide that the new FWC rules apply to new matters and to any step in a matter already on foot, however the FWC can order that the previous rules continue to apply to a matter already on foot.

The By Lawyers Employment Law guide has been updated accordingly.

Employment Law – FED

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The By Lawyers Employment Law guide has been extensively reviewed, with enhanced content including:

  • A new section on employment disputes, covering employee conduct and performance, unfair dismissal claims, general protections claims, unlawful termination, underpayment of wages, and disputes about contracts and employment status.
  • Expanded coverage of employment relationships, especially casual work and the complicated interplay between the common law position and the casual conversion provisions under the Federal employment legislation.
  • A new section on Paid Parental Leave, following legislative amendments that make payments more accessible, flexible, and gender-neutral for Federal system employees – see our previous News & Updates post for further details.

This review has been conducted in the context of significant and ongoing legislative changes. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 passed Federal parliament in December 2022, making many changes to the Fair Work Act 2009.

These amendments commence in phases over the course of several years and include:

  • Expansion of the objects of the Fair Work Act;
  • Equal pay provisions to address gender inequality;
  • Prohibition of pay secrecy – designed to augment the equal pay provisions;
  • Prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • Additional grounds for anti-discrimination in the workplace;
  • Fixed-term contracts are generally no longer permitted;
  • Expanded availability of flexible work arrangements;
  • A new small claims process for unpaid entitlement recovery.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Paid parental leave – FED

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Recent amendments to the Paid Parental Leave Act 2010 (Cth) make payments more accessible, flexible, and gender-neutral for Federal system employees.

Under the current scheme, either parent and other eligible carers can claim up to a total of 18 weeks of paid parental leave. This increases to 20 weeks from 1 July 2023. Payments can only be claimed in the first two years after the child’s birth or adoption. The scheme is funded by the Commonwealth, so a claim for payments is made to Centrelink, not the employer. The entitlement extends to employees who are full-time, part-time, casual, seasonal, contractors, or self-employed.

The amendments:

  • Enable families to decide which parent will claim first and how they will share the entitlement and are not limited to a small class of claimants. Allowing households to decide how best to care for a child.
  • Provide greater flexibility, with claimants allowed to take the available leave in multiple blocks of as little as a day at a time with no requirement to return to work to be eligible.
  • Impose a new $350,000 family income limit for eligibility, under which families can be assessed if an individual applicant does not meet the individual income test.
  • Expand the eligibility requirements to allow a father or partner to receive paid parental leave, regardless of whether the birth parent meets the income test or residency requirements, or is serving a newly arrived resident’s waiting period.

Payments are at the rate of the national minimum wage. Employers are not obliged to make superannuation contributions during the leave period. Paid parental leave does not count as paid leave for the purposes of the National Employment Standards (NES) and, therefore, does not count as service for the purposes of other entitlements.

The By Lawyers Employment Law publication has been updated accordingly.

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