The case for expanding jurisdiction of specialist employment courts

Recent discourse within the legal and industrial relations (IR) community has reignited interest in the potential expansion of state Industrial Relations courts' jurisdiction to handle federal matters. This topic has gained momentum, particularly following comments by Justice Stephen Dolphin, President of the South Australian Employment Tribunal (SAET). Justice Dolphin has advocated for the effectiveness of specialist employment courts, such as those operating in South Australia, and questioned why these courts have not been granted broader jurisdiction over federal industrial relations matters. His arguments raise important considerations regarding the future of employment law in Australia, particularly in relation to the efficiency, flexibility, and expertise that specialist courts can offer.

The case for expanding jurisdiction of specialist employment courts

The South Australian model: an exemplar of efficiency and expertise

Justice Dolphin’s address to the Australian Labour and Employment Relations Association highlighted the remarkable success of the SAET. The tribunal has consistently demonstrated its capability in resolving employment disputes efficiently. In the past financial year, the SAET achieved an extraordinary 108% clearance rate, with 71% of cases being resolved during the conciliation phase, thereby avoiding the need for judicial determination. This impressive performance reflects the tribunal's ability to handle employment matters expeditiously, with an average time from application lodgement to decision being reduced to just 34 weeks. Moreover, 85% of cases are resolved within a year, showcasing the tribunal’s efficiency.

Justice Dolphin's praise for the SAET’s performance naturally leads to the question: why are such specialist courts not empowered to handle more federal industrial relations matters? Currently, the jurisdiction over key areas such as industrial action, general protections, and union right of entry is predominantly reserved for the Federal Court and the Federal Circuit and Family Court. Expanding the jurisdiction of specialist courts like the SAET could potentially streamline the resolution process for these matters, offering a more tailored and efficient approach to employment disputes.

The argument for a Federal Employment Court

The concept of establishing a Federal Employment Court is not new, and it has garnered support from prominent legal scholars, including Professor Andrew Stewart from the University of Adelaide. Professor Stewart has long advocated for the creation of a Federal Employment Court that would operate alongside the Fair Work Commission (FWC). This proposal aims to provide a more accessible and specialised forum for dealing with complex employment law disputes.

Professor Stewart argues that the current system, where only the Federal Court and the Federal Circuit and Family Court have jurisdiction over certain areas of the Fair Work Act, is insufficiently specialised and can lead to inefficiencies. He suggests that a Federal Employment Court could address these shortcomings by offering a forum that combines legal expertise with the practical, conciliatory approach seen in the FWC.

One of the key advantages of a Federal Employment Court would be its ability to provide a more cost-effective and timely resolution of employment disputes. By starting cases in the FWC and, if necessary, moving to a specialised court, litigants would benefit from a streamlined process that maintains a focus on expertise in employment law. This approach would mirror the current model for general protections claims, where matters can begin in the Commission and escalate to a court if required.

Empowering specialist employment courts: a pragmatic approach

Justice Dolphin’s proposal to expand the jurisdiction of existing specialist employment courts under the Fair Work Act is both pragmatic and grounded in the proven success of these courts. Section 539 of the Fair Work Act already allows eligible state and territory courts to deal with various matters under the Act. However, critical areas such as general protections, industrial action, and union right of entry remain within the exclusive purview of federal courts. Justice Dolphin questions the policy rationale behind this limitation, especially given the demonstrated expertise and efficiency of specialist employment courts like the SAET.

Expanding the jurisdiction of these courts to handle federal matters could offer several benefits. Firstly, it would provide litigants with the choice of forum, allowing them to select the court that best suits their needs. Secondly, it would reduce the burden on federal courts, which are often perceived as more formal and less specialised in employment matters. Thirdly, it would ensure that employment disputes are resolved by courts with specific expertise in the nuances of employment law, thereby improving the quality and consistency of judicial outcomes.

Looking ahead: the potential for reform and modernisation

The idea of establishing a Federal Employment Court or expanding the jurisdiction of existing specialist courts aligns with historical efforts to create specialised judicial bodies for employment law. The Industrial Relations Court of Australia, established by the Keating Government in 1993, was an early attempt to centralise industrial relations disputes within a specialised court. Although this court was eventually abolished, the rationale behind its creation remains relevant today.

As the Albanese Government considers its workplace relations agenda, the expansion of specialist employment courts' jurisdiction should be a key consideration. There are compelling arguments in favour of allowing these courts to handle a broader range of federal matters. Doing so would not only improve access to justice for employees and employers alike but would also enhance the efficiency and effectiveness of the judicial system in resolving employment disputes.

In conclusion, whether through the establishment of a Federal Employment Court or by empowering existing specialist courts to handle more federal matters, there is a growing recognition that the current system can be improved. As Justice Dolphin suggests, there is much to be learned from the success of the SAET, and other states, as well as the federal government, should seriously consider adopting similar models. Such reforms would represent a significant step forward in modernising Australia’s employment law framework, ensuring that it remains responsive to the needs of both workers and employers in an increasingly complex industrial landscape.