The Fair Work Commission has held that unions may include multiple employees in a single general protections application.
A general protections application was brought on behalf of 60 employees, who claimed to have been dismissed in contravention of their enterprise agreement and the National Employment Standards. The employer argued that the relevant provision did not expressly authorise a multi-employee application, highlighted by the fact that such express language was used for other types of applications under the same legislation. It was also argued that, from a policy perspective, allowing a multi-employee dispute would dismiss the many “factual nuances” of each individual application, and conciliations would be overly complex as a result.
Deputy President Asbury did not agree with these submissions and said that a general protections application was “analogous to an application for the Commission to deal with a dispute and not to an application for an unfair dismissal remedy”. It was undesirable to characterise “dispute” too rigidly. She also said that there was no reason why multiple disputes should not be combined in the one application where there was a “common denominator”, such as the same employer for all applicants, as was the case here. Failure to allow such applications would also contradict one of the roles of the Commission – to conduct itself “in a fair and just manner that is quick, informal and avoids unnecessary technicalities”. Even though this presented logical difficulties for the employer, especially due to the poorly drafted application, Deputy President Asbury said that this could be overcome by asking for “more and better particulars” before the conciliation conference.
Key points for employers:
- General protections applications will be dealt with as disputes.
- The Commission will be open to combining multiple applications against a single employer and hearing them together. Employers should be prepared for the complexities that this may present.
A link to the decision can be found here: Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Anglo Coal (Dawson Services) Pty Ltd  FWC 4708 (15 July 2014).