January 12, 2020

Fair Work jurisdiction and jurisdictional objection guide

Photo by Will Francis on Unsplash

Fair Work jurisdiction and jurisdictional objection guide

Updated: 29 January 2021

Jurisdiction is a fancy word that simply means the legal power to make a decision on a matter. 

And, when we’re talking about the Fair Work Commission’s jurisdiction, we are talking about Fair Work’s power to deal with certain matters. 

Here's what you need to know about the Fairwork's jurisdiction. 

In a hurry? You can jump ahead below. 

So what exactly is a jurisdictional objection? We’ll cover that first. 

Jurisdictional objection 

An employer is able to make a jurisdictional objection.

For example, if they are claiming that the Commission does not have jurisdiction to deal with an application.

Or, the employer could claim that the person may not be eligible to make the application at all.

Below I will take you through some common jurisdictional objections employers can make in the Fair Work Commission. 

Objection, first

In all cases, if there is a jurisdictional objection, the Commission must first deal with the jurisdictional objection, BEFORE the original employee application. 

For example, if an employee lodges an application for unfair dismissal out of time and the employer raises a jurisdictional objection, this matter will need to be addressed first, then, if the Commission grants an out of time lodgement, the original claim for unfair dismissal can then be handled.

Below are examples of jurisdictional objections for an employee’s unfair dismissal application. 

Time limitation 

Employees have 21 days to lodge an unfair dismissal or general protections application. If an employee lodges outside this limitation period, the employer may claim the Commission does not have jurisdiction to deal with the matter.

The Commission may grant out of time lodgement in exceptional circumstances. 

Minimum employment period

In the case of an unfair dismissal, an employee must have worked for at least 6 months or for one year in the case of a small business employer (with fewer than 15 employees).

Now, if the employee has not worked the minimum period, the employer may make a jurisdictional objection. 

Keep in mind, there are certain absences during an employment that do not count towards the minimum employment period. You can read about those here. 

Wrong employer

If the employee includes details of the wrong business entity on a Fair Work application form that is not the employer, then there is also another jurisdictional issue.

Multiple applications

If the employee made multiple applications about a dismissal, for example, an unfair dismissal and general protections claim, this may also give rise to a jurisdictional objection from the employer.

Casual 

The employee was a casual employee and was not employed on a regular and systematic basis and there was no reasonable expectation of continuing employment. 

Contractor not employee

If the applicant is a contractor and not an employee e.g. to complete a specific project which finished, they won’t be able to make an unfair dismissal claim.

High income threshold

If the applicant is earning more than the high income threshold, they won’t be able to apply for unfair dismissal. The threshold is updated annually each 1 July. 

National workplace relations employee

The employee was not a national workplace relations system employee.

Genuine redundancy

Employees that believe a redundancy was not genuine per section 389 meaning may lodge an unfair dismissal.

If the employee did follow the measures in an Award or enterprise agreement this the employer can raise a jurisdictional objection.

Small business dismissal code

If you are a small business that’s followed the small business dismissal code, you can raise this as an objection to an employee application.

Employee resignation 

If you did not dismiss the employee but the employee resigned voluntarily, you can raise this as an objection. 

Restructure

If the employee was demoted but not significantly but they are still employed, you can raise an objection to an unfair dismissal claim. 

Ways to make the objection 

In response to the employee’s F2 (unfair dismissal) application, the employer would lodge an F3 - employer response to an unfair dismissal application and may include objections in that form. 

Also, the employer may lodge a form F4 - objection to application for unfair dismissal application. 

Do you have questions or comments about a jurisdictional objection? Be sure to leave them below. 





About the author 

Vivian Michael

As founder and lawyer at Michael Law Group, CPA and owner of a business consultancy, Vivian is well-positioned to advise Australia's top entrepreneurs. Entrepreneurs benefit from Vivian's commercially focussed legal advice, business experience, and commitment to deliver the best quality business legal services to entrepreneurs.

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