Multiple applicants can be listed in one general protections claim and employers may be entitled to request further particulars before participating in the FWC conference

The Fair Work Commission (the Commission) recently found that multiple applicants can be listed in one general protections dispute application. Further, an employer can request more and better particulars from the employee regarding their claim before participating in the conference before the Commission.

Background

The CFMEU lodged one general protections claim on behalf of approximately 100 members, alleging  they were dismissed because they had a workplace right under the relevant enterprise agreement and the National Employment Standards. 

The employees were named in the application.

The employer, Anglo Coal (Dawson Services) Pty Ltd challenged the dispute application on the grounds that:

• the employer had no record of one of the persons named in the application;
• four of the employees named in the application are still employed by the employer;
• 21 employees were terminated on the basis of voluntary redundancy which for the purposes of the Fair Work Act 2009 (the Act) does not constitute dismissal; and
• a single general protections application in relation to dismissal cannot cover multiple employees, so that the application has not been properly made under the Act.

Subsequently, the application was amended to remove 93 employees from the application.

The employer argued that different considerations will apply to each employee who was included in the application and therefore one application could not be made on behalf of all the employees.

The CFMEU challenged that submission and argued in the alternative, that if the Commission found that one application cannot be made on behalf of multiple employees, the Commission should treat every application as having been made separately for each employee. 

Findings

The Commission rejected the employer's argument that a single dispute application could not name multiple employees. It found that there is nothing explicit in the Act which prohibits multiple employees being named in one application.

In relation to the employer's argument that a number of the employees had not been dismissed or dismissed within the meaning of the Act as they had been made redundant, the Commission found the Act simply enables the Commission to conduct a conference to attempt to settle the dispute.  It is not required to be satisfied that the person who made an application has been dismissed.

This is to be contrasted with the obligations on the Commission when dealing with an unfair dismissal application.

Thus the Commission found:

"There is no reason why a single application cannot encompass multiple disputes, particularly when there is a common denominator - as there is in the present case - whereby each of the persons in dispute was employed by the same employer". 

The Commission acknowledged the logistical difficulties for the employer in responding to the dispute concerning multiple employees and for the Commission in conducting the conciliation conference, but that did not prevent the application from so being made. 

Further, even though the application was poorly drafted and included typographical errors, the employer could request more and better particulars before participating in the conference.

Finally, the Commission determined that it would exercise its discretion to treat every application as a separate application in the event that it could not accept the one application on behalf of the employees.

Lessons

It is important for employers to carefully review every general protections application received and consider whether:

• each applicant is named and properly identified (in this case every employee was named); and
• it should request more or better particulars of the application, including making it clear to the employees and their representatives that without the additional particulars being provided prior to the conference, it will not be able to properly participate in the conciliation conference.

If you would like more information about the case, or the matter generally, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.