The Fair Work Commission's (FWC) annual report for the 2018-2019 financial year highlights a number of interesting trends in the field of employment law. Namely, the report highlights a significant growth in general protections claims, specifically for claims of adverse action not involving a dismissal, and demonstrates the potential financial burden such claims can have on an employer found to have breached the provisions. Conversely, the number of unfair dismissal claims dealt with by the FWC have stagnated compared to preceding financial years. In relation to Enterprise Agreement approval, whilst the number of applications lodged and finalised has decreased slightly between the 2018 to 2019 financial years (5,287 in 2017-18 down to 4,932 in 2018-19) a growing number of agreements are only receiving approval following the provision of undertakings. Below is an outline of some of the report's key findings.

Unfair dismissals

  • 13,422 applications for unfair dismissal were finalised, with 78% of matters being resolved following a conciliation.
  • A meagre 5% of applications were resolved by the FWC through a formal decision or order, and within these applications only 19% of cases resulted in a finding that a dismissal was harsh, unjust or unreasonable (down 1% since 2017-18).
  • The statistics demonstrate how effective alternative dispute resolution is in these types of disputes.

Fair Work Commission (Cth), Access to Justice 2018-19, Annual Report (2019) 21

General protections

The general protections provisions in the Fair Work Act 2009 (Cth) aim to protect workplace rights, freedom of association and to protect employees from discriminatory conduct.

  • In matters involving termination of employment, 26% were finalised by the FWC with the provision of a certificate allowing the matter to be escalated to the Federal Court or Federal Circuit Court.
  • Overall, there was a 9% increase in general protections claims involving dismissal which comes off the back of a 10% increase in 2017-18.
  • Adverse action claims not involving a dismissal increased by 11%, the highest since 2015-16.
  • Notwithstanding, 27% of the total 890 finalised applications were withdrawn or invalidly made and in a further 12% of cases the employer refused to participate in a conciliation conference with the FWC. This refusal to participate allows an applicant to escalate their complaint to the Federal Court or Federal Circuit Court.

Of particular interest to employers are the statistics concerning monetary payment outcomes from general protections disputes.

  • Out of the 1,879 general protections matters involving dismissal, 32 involved monetary compensation ranging from $60,000 to over $100,000 as an outcome of conciliation.
  • Compare this to the median compensation of $8,704 being awarded in unfair dismissal claims.
  • It is therefore evident that the growth of general protections claims, which have uncapped compensation, unlike the unfair dismissal provisions, pose a significant financial risk for employers.

Bullying

  • The FWC recorded a total of 734 finalised applications to stop bullying, of which only 10% resulted in a stop bullying order being granted.
  • The other 90% of applications were settled, withdrawn or dealt with internally prior to an order being made.

Enterprise Agreements

There was an increase of 9% in approved enterprise agreements by the FWC. Interestingly, a trend is emerging wherein the FWC is relying heavily on the provision of undertakings in approving an agreement. Since the 2016-17 financial year the number of agreements approved without undertakings has decreased from 48% to 32%, whereas agreements approved with undertakings has increased from 52% to 68%. This is potentially the case because the FWC requests undertakings to address a range of contingencies which might leave one employee not better off overall. This means that an employer may have to give an undertaking to the FWC that they will ensure that every single employee will be better off overall.