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Right Claim? Wrong Jurisdiction?

It is not uncommon for a local government employee to bring a claim against a council in the wrong jurisdiction. The confusion can lead to unnecessary costs of dealing with the matter and frustration from both parties.

Which jurisdiction?
In Australia, the main jurisdiction for employment and industrial relations matters is the federal system which is mainly governed by the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Commission (FWC). However, Queensland local government employees are covered by the Industrial Relations Act 2016 (Qld) (IR Act) and matters are largely heard by the Queensland Industrial Relations Commission (QIRC). 

A local government employee is employed by a local government or a local government entity.[1] The FW Act makes it clear that an employer is not a ‘national system employer’ if they are a local government, or if they are a corporation wholly-owned by a local government.[2] In Queensland, approved local government entities are listed in the Local Government Regulations 2012 (Qld).[3]

In a nutshell, if a local government employee makes a claim in the FWC under the FW Act, the FWC will not have the power to deal with the matter and make enforceable orders for or against the Council.

What if a local government employee files a matter in the FWC?
If a local government employee has filed a matter with the FWC, Council should immediately alert the FWC in writing that it has a jurisdictional objection. This will enable to FWC to consider whether the objection is valid and dismiss the claim in a timely manner. If a jurisdictional objection is not raised, Council may unnecessarily incur costs and be subject to unenforceable orders.

The FWC does not have power to compel Council to attend a conciliation conference or a hearing or to make orders against Council with respect to a local government employee.

Once the matter is dismissed by the FWC, the employee may choose to bring their claim to the QIRC.

We are here to help
The jurisdictional error made by employees filing a matter in the FWC is relatively common and is usually due to a confusion between state and federal industrial relations systems.

Peak Services Legal is here to help Councils if this happens. We can prepare the jurisdictional objection to the FWC and represent Councils in advocating the matter (should that be necessary), as well as represent (and defend) Councils in any subsequent proceedings which may be brought in the QIRC.

For further information please contact us by calling (07) 3000 2148 or alternatively send us an email at peaklegal@wearepeak.com.au. 

[1] Local Government Act 2009 (Qld), s216A.
[2] Fair Work Act 2009 (Cth), s14(2)(ii) and (iii).
[3] Local Government Regulations 2012, Sch 6.