New specialist federal industrial court to be established

Currently, the Federal Court of Australia and the Federal Circuit and Family Court of Australia are the courts with responsibility for matters arising under the Fair Work Act 2009 (Cth) (FW Act), with some limited jurisdiction for wage underpayments given to state lower courts (e.g. the Industrial Division of the Magistrates’ Court of Victoria).

Following the significant delays in the progress of employment and industrial law cases in these jurisdictions, the Federal Labor Government has announced it will establish a separate standalone Fair Work Court in 2027 to support a faster, simpler and more accessible pathway for resolving underpayment matters and other industrial disputes.

Australia last had a specialist federal industrial court between 1993 and 1997. Since then, the areas in which civil liability (and in certain areas, criminal liability, e.g. wage theft) attaches to the conduct of employers, employees and unions has expanded substantially.

The new Fair Work Court will assume an exclusive role in hearing and determining wage underpayment claims. The question is whether it will take on a broader range of workplace matters currently dealt with by the Federal Court and Federal Circuit and Family Court, such as general protections claims and intra-union disputes under the Fair Work (Registered Organisations) Act 2009.

The design and structure of the Court will be the subject of a consultation process to commence later this year.

Meanwhile, the Federal Government:

has dropped its commitment to establish a national system for regulation of labour hire, opting to instead work with states and territories to ensure nationally consistent, enforceable licensing;
will amend the FW Act to give unions and employees the capacity to apply to the Fair Work Commission to suspend disproportionate employer lock outs in response to employee industrial action; and
will amend the FW Act to make it easier for unions to re-initiate bargaining for a single interest (multi-enterprise) agreement.

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