ACT PASSES ANTI-WAGE THEFT LAW AMENDMENTS

Workplace Directions

The ACT Legislative Assembly recently passed the Courts (Fair Work and Work Safety) Legislation Amendment Bill 2019 (the Bill), clarifying the jurisdiction of the ACT Magistrates Court to hear eligible fair work matters under section 539 of the
Fair Work Act 2009 (Cth) (the Fair Work Act).

Background

Section 539 of the Fair Work Act grants jurisdiction over certain fair work matters to eligible State or Territory courts. Despite this, nationwide, it has been very rare for parties to use courts other than the Federal Court or Federal Circuit Court to bring disputes.

In the ACT, the Bill is intended to encourage parties to use the comparatively quick, easy and inexpensive processes offered by the ACT Magistrates Court to recover unpaid wages and entitlements.

Analysis

The Bill amends the Magistrates Court Act 1930 (ACT) to:

  • Ensure that fair work matters are heard in the Industrial Court within the
    ACT Magistrates Court
  • Clarify that the ACT Magistrates Court has jurisdiction to hear fair work matters under the Fair Work Act regardless of the amount in dispute. The usual jurisdictional limit of the ACT Magistrates Court of $250,000 plus interest and costs does not apply.
  • Provide for compulsory mediation for all fair work matters in the
    ACT Magistrates Court
  • Enable officials of industrial associations (including associations for employees, employers or independent contractors) to represent parties to fair work small claims matters (as defined by section 548 of the Fair Work Act) with the leave of the ACT Magistrate Court, and
  • Permit the ACT Magistrates Court to order civil remedies in excess of $250,000 for a contravention of a civil remedy provision.

The new small claims procedure detailed by the Bill applies to claims for under $20,000. The Court is not bound to apply the rules of evidence and proceedings can be conducted informally, without regard to legal forms or technicalities. Parties may only be represented by lawyers with the leave of the Court.

While the intention of the Bill is to primarily open an avenue for small claims to be resolved in a simpler manner, the ACT Magistrates Court still retains jurisdiction over fair work general claims, which would be conducted as a more formal proceeding.

Jurisdiction of other State and Territory courts

Under section 12 of the Fair Work Act, eligible State or Territory courts means:

  1. a District, County or Local Court;
  2. a magistrates court;
  3. the Industrial Relations Court of South Australia;
  4. the Industrial Court of New South Wales;
  5. any other State or Territory court that is prescribed by the regulations (being only the South Australian Employment Court at this time).

Under section 539, these courts already have a broad jurisdiction over a significant span of Fair Work Act civil remedy provisions, including, but not limited to, contraventions of core provisions relating to the National Employment Standards, modern awards, enterprise agreements or workplace determinations.

It is important to note that the Federal Court and Federal Circuit Court still maintain exclusive jurisdiction over provisions relating to general protections, industrial action and right of entry.

Conclusion

Despite the jurisdiction granted by section 539 to this range of State and Territory courts, it has been exceptionally rare for parties to take fair work claims to these courts.

The Bill is introduced with a view to encouraging a mechanism for quick and cost effective resolution of fair work disputes via the Industrial Court within the ACT Magistrates Court. With the passing of the ACT Bill, parties in other states may well become aware of the options available to them to commence proceedings in alternate jurisdictions.

Further information / assistance regarding the issues raised in this article is available from the authors, Emma Reilly, Partner and Rohan Reddy, Associate or your usual contact at Moray & Agnew.


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