The Fair Work Commission (FWC) publishes their annual report each financial year which provides analysis of the applications received by the FWC in the previous year. The statistics in relation to FWC proceedings give valuable insight as to trends in the various jurisdictions of the FWC such as unfair dismissal, general protections and anti-bullying.
The number of Unfair Dismissal (UD) applications lodged in the FWC made up 44% of all applications made to the FWC. Section 385 of the Fair Work Act 2009 (Cth) (FW Act) sets out the criteria for determining whether a person has been unfairly dismissed. These include that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal is inconsistent with the Small Business Fair Dismissal Code or the dismissal was not the case of genuine redundancy. An application involving a dismissal must be made within 21 days of the dismissal taking effect.
- In 2018/19 there were 13,928 UD applications lodged
- In 2018/19, there were 13,422 UD applications finalised in the FWC, of which 728 were resolved by the FWC Tribunal through a final decision or order made
- 61% of the finalised UD applications were resolved at conciliation
- 140 matters, representing 1% of all UD applications finalised in the FWC, were resolved by a decision of the FWC that the employee’s dismissal was harsh, unjust or unreasonable.
The number of unfair dismissal applications has increased by approximately 2.3% compared to the 2017/18. While the difference in numbers may not seem that significant, it may demonstrate the increased awareness of employees of their workplace rights and access to the unfair dismissal jurisdiction in the FWC.
With over half of the UD applications resolved at the conciliation stage, it is important for employers to understand the significant role of conciliation in the UD process.
In the 2018/19, the median time from lodgement to conciliation with UD applications was 32 days.
General protections (GP) applications involving dismissal must be lodged within 21 days of the dismissal taking effect. The application is made under s 365 of the FW Act as set out under Part 3-1 of the FW Act.
There were 4,508 GP applications involving dismissal lodged in 2018/19, which was an increase of approximately 8.6% compared to applications lodged in 2017/18.
Of the recorded conciliation outcomes for general protections applications involving dismissal, there were 2,502 matters settled by the following means:
- 639 were resolved by monetary outcomes
- 1,240 were resolved by monetary and non-monetary outcomes
- 462 were resolved by non-monetary items only
- 161 matters resolved without details being made available.
In 2018/19 there were 4,330 applications finalised by the FWC of all GP applications lodged, with 1,128 of those matters not being resolved and certificates issued by the FWC. There were 38 applications that were dismissed.
There were 14 applications that were made for consent arbitration following a certificate being issued, which is a slight decrease compared to FY2017/18 where 18 applications for consent arbitration were lodged.
If all reasonable attempts to resolve the dispute are not likely to succeed, or any attempts to resolve the dispute that have been made have been unsuccessful, the FWC member must issue the applicant a certificate pursuant to section 386(3) of the FW Act which enables the parties to proceed with an application to the Federal Circuit Court or Federal Court.
Section 372 of the FW Act allows an eligible worker to make an application for the FWC to deal with a non-dismissal dispute. General protections claims not involving a dismissal, saw 1,005 applications lodged with 31% (or 890 applications) being resolved through conciliation. The number of applications in this jurisdiction were slightly increased compared to the 2017/18, which accounted for 902 applications for the FWC to deal with a general protections dispute not involving dismissal.
An eligible worker may apply for an order to be made by the FWC to stop repeated unreasonable behaviours that they (or a group that they belong to) have experienced at work. The application does not extend to cover reasonable management action carried out in a reasonable manner, and the behaviour must take place while the worker is at work; see s 789FD of the FW Act.
In the year 2018/19, there were 751 applications lodged for anti-bullying orders, of which 734 were finalised. This was a slight increase in comparison to the 2017/18, where there were 721 anti-bullying applications lodged. There were 74 matters (10% of those finalised) that were resolved by the FWC issuing a decision or order. The FWC can make an order that is considered appropriate to prevent the behaviours continuing, but only after a finding has been made. Of these decisions,
here was an order to stop bullying in two substantive applications under the anti-bullying jurisdiction, 62 matters were finalised by administrative dismissal and 7 substantive applications were dismissed. The FWC does not have the powers to order reinstatement or compensation with regards to anti-bullying applications.
Overall, in the 2018/19 there was a 5% increase in the number of hearings and conferences held in the FWC. There was a slight increase in the number of applications made in the unfair dismissal and general protections jurisdiction in comparison to the 2017/18. The statistics of the FWC annual report provides insight into the effectiveness of alternative dispute resolution, particularly in relation to unfair dismissal disputes. The number of applications that were resolved at conciliation in unfair dismissals was 61%, which indicates that many applicants are prepared to settle at this stage of the unfair dismissal process and something for employers to consider when participating in a FWC conciliation.
For a copy of the Fair Work Commission Annual Report report, click here.
Julia Eastoe is a Lawyer at Justitia Lawyers. To view her profile, click here.