Unlawful termination of employment Part 1

In addition to the unfair dismissal and general protections’ jurisdictions and provisions of the Fair Work Act, which essentially are limited in their application to national system employers (ie trading corporations and Federal government agencies) and their employees due to the constitutional law limitations of the legislative powers of the Commonwealth.  The practical application of these legislative powers has effectively been artificially enlarged by several States ceding their legislative powers in this space to the Commonwealth.

However Division 2 of Part 6-4 of Chapter 6 of the Fair Work Act contains legislation which covers employer obligations irrespective of whether the employer is a national system employer or not because the constitutional foundation of the legislation is based upon the Commonwealth’s participation in various international employment conventions under its powers to make legislation in relation to “external affairs”; see sub-sec 51 (xxxix) of the Australian Constitution.

Relevantly the Fair Work Act confers a particular jurisdiction upon the Fair Work Commission in sec 772 of the Fair Work Act to deal with unlawful termination of employment by any Australian employer by providing that an employer must not terminate an employee’s employment for anyone of a number of prohibited reasons, which are very similar to the general protections; see for example sec  351. That said, this jurisdiction of the Commission in rarely accessed.

“It must firstly be observed that applications under s 773 of the Act are not regularly encountered by the Commission. Given the limitation on the powers of the Commission to conduct a conference of the parties in an attempt to resolve the claim, there are few decisions of the Commission under the powers of the Commission to hear and determine the application, only by consent, of the parties. Less frequent, and even probably unique to this case, there are no decisions, let alone Full Bench authority of which I am aware, which have dealt with a jurisdictional objection of this kind.”

Hudson v Transport for NSW (2019) FWC 3906 delivered 12 June 2019 per Sams DP