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Rethinking the Fair Work Protection against Discriminatory Dismissal

Published online by Cambridge University Press:  24 January 2025

Joellen Riley
Joellen Riley*
Affiliation:
Sydney Law School
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Abstract

People who lose their jobs as a consequence of discriminatory treatment at work face an array of options for redress. They might bring proceedings for unfair dismissal before a statutory tribunal (the Fair Work Commission), or they may pursue a claim in the Federal Court of Australia. This article contemplates the possibility that the system for dealing with discriminatory dismissal could be rationalized so that aggrieved employees might have a single, accessible pathway through an administrative process to deal with such complaints. This would involve rethinking whether discrimination complaints ought to be treated as a matter of vindicating legal rights, or as a matter of arbitrating competing interests. Abandoning the language of rights may facilitate a pathway around the Boilermakers' doctrine (which mandates that only Chapter III courts can determine legal rights), and so enable the establishment of a more accessible and effective avenue for dealing with discrimination at work.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 1 , March 2013 , pp. 181 - 195
Copyright
Copyright © 2013 The Australian National University

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Footnotes

I would like to thank my colleague, Dr Belinda Smith, for detailed comments on the manuscript for this article, and for the benefit of many years of discussions with her on matters of equality and discrimination law. I would also like to thank Therese MacDermott, my collaborator on a number of projects on dispute resolution, for her advice and comments. They are both innocent of any errors remaining in this article, and the views expressed are my own.

References

2 She might also make a complaint under a state or federal discrimination statute, but those options are not considered in this article.

3 Fair Work Act s 385. For commentary on the unfair dismissal laws see Chapman, Anna, ‘The Decline and Restoration of Unfair Dismissal Rights’ in Forsyth, Anthony and Stewart, Andrew (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (Federation Press, 2009) 207-28.Google Scholar

4 Fair Work Act s 351. For a note on early adverse action cases, see Riley, Joellen, ‘Adverse Actions Claims under the Fair Work Act 2009 (Cth): Some Lessons from the Early Cases’ (2011) 25(3) Commercial Law Quarterly 12.Google Scholar

5 Fair Work Act ss 382(b)(i)–(ii).

6 Fair Work Act s 382(b)(iii) and Fair Work Regulations (Cth) reg 3.05. At the time of writing the high income threshold was $123,300 (from 1 July 2012). This amount is indexed annually.

7 Fair Work Act s 383. This period is six months, or 12 months if the employer is a ‘small business employer', defined in s 23 as one who employs fewer than 15 employees.

8 For a fuller account of the procedures for pursuing each type of claim, see MacDermott, Therese and Riley, Joellen, ‘ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances’ (2012) 38(2) Monash University Law Review 82.Google Scholar

9 The FWC was previously called Fair Work Australia.

10 The FWC can grant an extension of time in ‘exceptional circumstances': see Fair Work Act s 366(2).

11 Fair Work Act ss 365, 368(1).

12 See Acton, Jenny, ‘Fair Work Australia: An Accessible, Independent Umpire for Employment Matters’ (2011) 53 Journal of Industrial Relations 578–95.CrossRefGoogle Scholar See also TNS Social Research, ‘Fair Work Australia Unfair Dismissal Results’ (Survey for Fair Work Australia, November 2010)Google Scholar for data on the operation of the telephone conferencing system.

13 Fair Work Act s 381(2).

14 See Fair Work Act s 368 which requires the FWC to conduct a conference to deal with any general protections dispute involving dismissal.

15 See Fair Work Act s 570(2). The decision to award costs in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 was unusual, and based on peculiar circumstances: see [200]–[202].

16 See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 ('Boilermakers'’), affirmed in A-G (Cth) v R [1957] AC 288. For commentary see Sawer, Geoffrey, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177Google Scholar; Wheeler, Fiona, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7 Public Law Review 96.Google Scholar

17 See Owens, Rosemary, Riley, Joellen and Murray, Jill, The Law of Work (Oxford University Press, 2nd ed, 2011) 622–4Google Scholar; MacDermott, Therese and Riley, Joellen, ‘Alternative Dispute Resolution and Individual Workplace Rights’ (2011) 53 Journal of Industrial Relations 718, 722–4.CrossRefGoogle Scholar

18 The former Workplace Relations Act 1996 (Cth) used the terminology of ‘unlawful’ termination for the kinds of discriminatory dismissals which would now offend the general protections provisions in Pt 3-1 of the Fair Work Act. For commentary on the Workplace Relations Act provisions, see Chapman, Anna, ‘Termination of Employment under the Workplace Relations Act 1996 (Cth)’ (1997) 10 Australian Journal of Labour Law 89Google Scholar; MacDermott, Therese, ‘Industrial Legislation in 1996: The Reform Agenda’ (1997) 39 Journal of Industrial Relations 52, 63–4.CrossRefGoogle Scholar

19 See Fair Work Act s 381(2). This expression originated in the New South Wales jurisdiction when used by Sheldon J in In Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95, a case in which an industrial tribunal weighed the interests of both employer and employees in deciding whether to order reinstatement as part of the settlement of an industrial dispute.

20 See, eg, Alston, Philip (ed), Labour Rights as Human Rights (Oxford University Press, 2005).CrossRefGoogle Scholar

21 See generally Thornton, Margaret, ‘Sex Discrimination, Courts and Corporate Power’ (2008) 36 Federal Law Review 31CrossRefGoogle Scholar; Thornton, Margaret, ‘Disabling Discrimination Legislation: The High Court and Judicial Activism’ (2009) 15 Australian Journal of Human Rights 1CrossRefGoogle Scholar; Smith, Belinda, ‘From Wardley to Purvis — How Far has Australian Anti-Discrimination Law Come in 30 Years?’ (2008) 21 Australian Journal of Labour Law 3Google Scholar; Gaze, Beth, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26 Melbourne University Law Review 325.Google Scholar

22 See Gaze, Beth, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26 Melbourne University Law Review 325, 332.Google Scholar

23 See Gaze, above n 21, 333; Sturm, Susan, ‘Law, Norms, and Complex Discrimination’ in Bercusson, Brian and Estland, Cynthia (eds), Regulating Labour in the Wake of Globalisation: New Challenges, New Institutions (Hart Publishing, 2008)Google Scholar; Smith, Belinda, ‘Rethinking the Sex Discrimination Act: Does Canada's Experience Suggest We Should Give Our Judges a Greater Role?’ in Thornton, Margaret (ed), Sex Discrimination in Uncertain Times (ANU E Press, 2008) 235.Google Scholar

24 See Fudge, Judy, ‘Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution’ (2007) 23 South African Journal on Human Rights 235.CrossRefGoogle Scholar

25 Smith, Belinda, ‘What Kind of Equality Can We Expect from the Fair Work Act?’ (2011) 35 Melbourne University Law Review 545, 563.Google Scholar See also Thornton, Margaret, ‘Disabling Discrimination Legislation: The High Court and Judicial Activism’ (2009) 15 Australian Journal of Human Rights 1.CrossRefGoogle Scholar

26 See Smith, above n 25, 567, citing Fredman, Sandra, ‘Recognition or Redistribution: Reconciling Inequalities’ (2007) 23(1) South African Journal of Human Rights 214CrossRefGoogle Scholar and Fraser, Nancy, Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition (Routledge, 1997) 13.Google Scholar

27 Ibid 576.

28 (2008) 233 CLR 542.

29 Applications brought under s 365 can relate to alleged breaches of any of the general protections, including dismissals of a person who has exercised a workplace right (defined in s 341) or engaged in industrial activities.

30 These are race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin: s 351(1). For examples of cases, see Bayford v Maxxia Pty Ltd [2011] FMCA 202 (family responsibilities — application failed); Ucchino v Acorp Pty Ltd [2012] FMCA 9 (pregnancy — application succeeded); Fair Work Ombudsman v Drivecam Pty Ltd [2011] FMCA 600 (physical disability — application succeeded).

31 For examples of cases brought on the grounds of a breach of a workplace right, see Khiani v Australian Bureau of Statistics [2010] FCA 1059, affd [2011] FCAFC 109 (right to take sick leave — application failed); Stephens v Australian Postal Corporation [2011] FMCA 448 (right to make claim under safety legislation — application succeeded); Australian Licensed Aircraft Engineers Association v Qantas Pty Ltd [2011] FMCA 58, affd [2012] FCAFC 63 (right to bring a complaint about entitlements under an enterprise bargain — application succeeded).

32 For examples of cases brought on the grounds of industrial activities, see Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 291 ALR 665.

33 See, eg, Hammond v Boutique Kitchens and Joinery Pty Ltd [2010] FMCA 622 (application failed).

34 Under Fair Work Act s 369, the FWC must issue a certificate if ‘all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful'.

35 See Fair Work Act s 371(2). Extensions of time can be granted on the principles set down in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

36 An Austlii search of the Federal Court (FCA) and Federal Magistrates Court (FMCA) databases (on 20 April 2012) turned up no more than 12 FCA decisions and 42 FMCA decisions dealing with ‘general protections’ since the commencement of the Fair Work Act. A number of these decisions related to the same complaints.

37 See, eg, Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333; Barclay v Board of Bendigo Regional Institute of TAFE [2011] FCAFC 14 (overturned by the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 291 ALR 665); Australian Licensed Aircraft Engineers Association v Qantas Pty Ltd [2011] FMCA 58, affd [2012] FCAFC 63; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590 (application failed).

38 See, eg, Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30; Fair Work Ombudsman v Drivecam Pty Ltd [2011] FMCA 600.

39 MacDermott and Riley, above n 8.

40 Although presently, there are some significant limits on the remedies available in an unfair dismissal arbitration. If reinstatement is refused, compensation is capped at six months’ salary, and there is no compensation for distress and humiliation: see Fair Work Act s 392. Compensation for a successful general protections claim is uncapped, and damages may be awarded for distress: see, eg, ALAEA v International Aviations Service [2011] FCA 333. Also, there is scope for any civil penalty awarded to be paid to the complainant, and this may assist in defraying costs of the application: see Fair Work Act s 546(3).

41 Fair Work Act ss 382(b)(i)–(ii).

42 Fair Work Act s 383.

43 Fair Work Act s 384(2).

44 See Fair Work Act s 342(1) item 2, s 351(1).

45 It is noteworthy that media reports are beginning to suggest that high net worth individuals are now using ‘adverse action’ claims to pursue multimillion dollar claims against employers. These are the kinds of litigants who can typically afford to use court processes, but they are often not the group that the legislation originally intended to benefit.

46 For a full account of the Workplace Relations Act unfair dismissal provisions see Chapman, above n 3.

47 Australian Constitution s 51(xxxv).

48 Australian Constitution s 51(xx).

49 See Owens, Rosemary and Riley, Joellen, The Law of Work (Oxford University Press, 2007) 424–32Google Scholar for a digest of the exclusions under the Workplace Relations Act. These exclusions were more extensive than those in the current legislation.

50 Australian Constitution s 51(xxix).

51 See Victoria v Commonwealth (1996) 187 CLR 416, 487. See also Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

52 (1996) 187 CLR 416.

53 (1996) 187 CLR 416, 510–21. For criticism of the High Court's decision in this respect, see Creighton, Breen, ‘The Workplace Relations Act in International Perspective’ (1997) 10 Australian Journal of Labour Law 31, 39–40.Google Scholar

54 For an explanation of the constitutional basis of the Fair Work Act see Owens, Rosemary, ‘Unfinished Constitutional Business: Building a National System to Regulate Work’ (2010) 22 Australian Journal of Labour Law 258Google Scholar and Lynch, Andrew, ‘The Fair Work Act and the Referrals Power — Keeping the States in the Game’ (2011) 24 Australian Journal of Labour Law 1.Google Scholar

55 To the extent that there is a need for more inclusive provisions to protect employees who are outside the national system, the Fair Work Act contains Pt 6–4 (ss 771–783) to give effect to ILO C 158 and a number of other ILO Conventions for the benefit of non-national system employees, such as any State and local government employees not covered by state referral agreements.

56 Boilermakers’ (1956) 94 CLR 254, 323 (Webb J), 296 (Dixon CJ, McTiernan, Fullager and Kitto JJ). See also Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267.

57 Kevin Rudd and Julia Gillard, Forward with Fairness — Policy Implementation Plan, Australian Labor Party, August 2007.

58 See Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

59 See Stewart, Andrew and Riley, Joellen, ‘Working Around Work Choices: Collective Bargaining and the Common Law’ (2007) 31 Melbourne University Law Review 903, 927–36.Google Scholar

60 In reality, more claims result in an award of compensation, which may be made if the FWC has determined that reinstatement is not appropriate in all the circumstances: Fair Work Act s 390(3).

61 See Smith, above n 25, 574.

62 Arbitrations before the FWC typically follow a court-like procedure for calling upon and testing evidence in any case, but applicants do not need to be represented, and the tribunal is charged with dealing with matters according to equity, good conscience and the substantial merits of the case without regard to legal technicalities.

63 Civil Dispute Resolution Act 2011 (Cth) s 4(1)(d) (‘Civil Dispute Resolution Act’).

64 Civil Dispute Resolution Act s 16(c).

65 Where a general protections claim is brought by a person whose employment has not been terminated, the conference conducted by the FWC is not compulsory: see Fair Work Act s 372.

66 (2008) 233 CLR 542.

67 For a discussion of the issues in the case written prior to the decision, see Armson, Emma ‘Attorney-General (Commonwealth) v Alinta Limited: Will the Takeovers Panel Survive Constitutional Challenge?’ (2007) 29 Sydney Law Review 495.Google Scholar

68 See Corporations Act 2001 (Cth) s 657A and definition of ‘remedial order’ in s 9.

69 See, eg, Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821.

70 See Corporations Act s 602(a). See also Takeovers Panel Case (2008) 233 CLR 542, 551.

71 Ibid 550 (Gleeson CJ), 553 (Gummow J), 561 (Kirby J).

72 Ibid 561 (Kirby J).

73 The Australian Constitution s 75(v) provides that the High Court of Australia has original jurisdiction to grant a writ of mandamus, prohibition or injunction against an act of an officer of the Commonwealth.

74 The full list of protected characteristics in s 351(1) is listed at above n 30.

75 Fair Work Act s 351(2)(b).

76 Fair Work Act s 351(2)(c).

77 MacDermott and Riley, above n 8.

78 See, eg, Damevski v Giudice (2003) 133 FCR 438; Visscher v Giudice (2009) 239 CLR 361.

79 See Takeovers Panel Case (2008) 233 CLR 542, 552 (Gleeson CJ).

80 See Smith, above n 25, 554.

81 Hepple, Bob and Morris, Gillian S, ‘The Employment Act 2002 and the Crisis of Individual Employment Rights’ (2002) 31 Industrial Law Journal 245, 247Google Scholar, quoting Hepple, Bob, ‘Enforcement: The Law and Politics of Cooperation and Compliance’ in Hepple, Bob (ed), Social and Labour Rights in a Global Context (Cambridge University Press, 2002) 238, 238.Google Scholar

82 See Smith, above n 25; Thornton, above n 25.