…operation of s370, Fair Work Act 2009 (Cth)
In Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 (5 June 2023), the Federal Court (Burley J) construed s370 of the Fair Work Act 2009 (Cth) (FW Act) so that applicants were only required to obtain leave out of time for their claim of adverse action by dismissal – but, not for their claims of adverse action by injuring the applicants in their employment, adverse action for discrimination, or adverse action by coercion (at [116]).
The reasons for judgment addressed several interlocutory applications (at [2]). One of them was filed by the applicants seeking an order in accordance with s370(a)(ii) of the FW Act; that is, for leave to make a general protections court application after the prescribed 14-day filing requirement had expired (at [3]).
The applicants argued that only their adverse action by dismissal claim required leave. The respondents argued that leave was also required in relation to the applicants’ claims for adverse action; by injuring the applicants in their employment, adverse action by discrimination, and adverse action by coercion (at [108]).
Section 365 of the FW Act provides that, if a person has been dismissed and the person (or an industrial association that is entitled to represent the industrial interests of the person) alleges that the person was dismissed in contravention of the relevant part of the FW Act, then the person, or industrial association, may apply to the Fair Work Commission (FWC) for the FWC to deal with the dispute (at [103]).
Section 370 of the FW Act provides that a person who is entitled to apply under s365 – for the FWC to deal with a dispute – must not make a general protections court application in relation to the dispute, unless (among other things):
- the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute, and
- the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during, or after, those 14 days (at [104]).
The court held that the resolution of the dispute depended on the proper construction of s370 in the context of the statute as a whole (at [108]).
The court also held that s370 is confined to persons who are entitled to make an application under s365. Section 365 is concerned with where a person has been dismissed – such persons can advance a general protections court application in relation to the dismissal dispute, if the relevant requirements in s370 are met.
Non-dismissal disputes are addressed in a different subdivision of the FW Act, and the requirements in relation to timing of applications – and the receipt of a s368 certificate – do not apply (at [117]).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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