How impactful is the Fair Work Court likely to be?

Here, senior employment and workplace relations lawyers examine the likely implications of the tribunal and whether it will achieve its intended purpose.

Late last week, Prime Minister Anthony Albanese announced the creation of a new Fair Work Court to resolve workplace relations disputes. According to legal experts, while the new court has the potential to fast-track workplace disputes in a more considered, specific manner, care must be given to its jurisdiction, structure, and resourcing, experts have said.

Partner at Clayton Utz, Amanda Lyras, said “enforcement is likely to become faster and more accessible for workers”.

“That’s not something to fear if your house is in order – but it does sharpen the incentive to get compliance right. Businesses should be looking at their pay practices, award interpretation and record-keeping now, rather than waiting until a streamlined court makes it easier for claims to land on their desk.”

Lyras said that the main difference between the proposed court and that of the Howard government’s Industrial Relations Court is that modern workplace disputes are now more complex, more abundant, and not suited to the general court system.

She said: “Key questions include how the Court will interact with the Fair Work Commission, whether it will absorb existing Federal Circuit Court jurisdiction over workplace matters, and how ‘specialist judges’ will be appointed and resourced. The details matter enormously.”

In a similar vein, “the announcement of a new Fair Work Court marks another significant development in the workplace relations landscape,” according to Kingston Reid partner, Emily Baxter.

She said: “Having dedicated judicial officers who understand the complexity of modern awards, enterprise agreements, the National Employment Standards, and the interplay between federal interplay between federal and state workplace laws will benefit all parties, including employers who need consistent and informed decision-making.”

Whether the court’s jurisdiction will relate to civil recovery proceedings in parallel to criminal prosecutions will need to be considered, as will a delineation between civil enforcement and criminal jurisdiction of other courts, Baxter said.

“From an employer’s perspective, we are hopeful that the court will be established with full and competent court jurisdiction."

Senior associate and team leader at Harmers Workplace Lawyers, Mariam Chalak, said the proposed reform may increase access to justice, alleviate caseloads from tribunals and courts, deliver greater consistency and provide more timely resolution.

However, she said: “The practical success of the reform will ultimately depend on its structure, procedural rules, interaction with the Fair Work Commission, and whether it is adequately resourced. If carefully implemented, the Fair Work Court has the potential to radically change our existing framework.”

Executive counsel and team leader at Harmers, Amy Zhang, said: “The devil will be in the detail and interested persons should watch this space, as there will be consultation with stakeholders about the form and set up of the court.”

According to Michael Byrnes, workplace relations partner at Swaab, the details released thus far suggest “the court is going to be ‘user friendly’, eschewing some formalities to facilitate the speedy and simpler resolution of disputes”.

While he noted that the apparent focus on underpayment determinations already exists in the small claims court process of the Federal Circuit and Family Court of Australia, Byrnes suggested “that function will be taken from the FCFCOA and form the foundation of this new court. If so, the new court will not only need judges but also court officers who can perform mediations and/or other dispute resolution processes”.

While Byrnes praised the aim to resolve underpayments in a simpler and faster way, he warned that such disputes can be messy and labour intensive, with issues pertaining to applicable award, award classification, conflicting evidence about hours worked and complex calculations.

Making the announcement on 23 July, Albanese said: “Australians who have been underpaid hundreds, even thousands, of dollars shouldn’t have to wait years for justice, or be told their case will cost more than their claim.”

Minister for Employment and Workplace Relations, Amanda Rishworth, added: “A Fair Work Court will make a significant difference to help workers receive their entitlements and pay they worked hard for.”

The Prime Minister’s statement referenced a consultation period with workplace relations judges, as well as workers, employers and legal experts.

More to come.

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