High Court challenge to powers of the Fair Work Commission

In what may well turn out to be the industrial relations equivalent of David versus Goliath, a former Coles employee is challenging the power of the Fair Work Commission (FWC) to dismiss certain applications.

Specifically, the question before the High Court will be whether, in an application alleging “adverse action” involving dismissal, the FWC has the power to determine whether or not the employee was in fact dismissed.

Milford v Coles Supply Chain Pty Ltd & Anor, B62/2020


The issue at stake

The issue for the High Court to determine is which body has the power to dismiss a late filed “adverse action” application – the FWC or the courts.

This issue arises because in applications made under section 365 of the Fair Work Act 2009 (Cth) (the Act) – adverse action applications in which the alleged adverse action is dismissal from employment – the employee must file their claim with the FWC within 21 days of dismissal.

The question of dismissal then becomes crucial on two fronts:

  • if the employee was in fact dismissed – if they were not, the application must necessarily fail; and
  • when the employee was dismissed – to determine whether the application was validly made on time.

Since the 2013 case of Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321, the FWC has held that it is not required to determine if or when a person was dismissed in such cases; rather, it is enough for the FWC’s purposes that the application on its face alleges a date of dismissal that no more than 21 days before the application was filed

However, the case of Mr Cameron Milford, since first being heard in June 2019, has swung like a pendulum from vesting these questions in the FWC to the courts and back again, with the High Court challenge hopefully to settle the matter once and for all.


The story so far

Mr Milford was employed by Coles Supply Chain Pty Ltd (Coles) as a casual employee from 25 March 2010 until 11 July 2011, and then re-engaged as a casual employee from 5 January 2012.

Following a shoulder injury in May 2014, Mr Milford’s condition deteriorated until he was unable to continue working and was not rostered for any work after 1 October 2014.

On 20 July 2018 Mr Milford received an email from Coles advising him that he was not an employee of theirs, as his employee record had automatically expired after three months of inactivity (31 December 2014).

A subsequent email from Coles advised that his employment had ended on 1 October 2014 since, as a casual employee, his employment ended at the end of each shift.

Mr Milford subsequently made an “adverse action” application to the FWC under section 365 of the Fair Work Act 2009 (Cth) on 5 August 2018.


A quick climb through the courts

Importantly for the question that the High Court will need to determine, an application alleging adverse action in the form of dismissal under section 365 of the Act must be made within 21 days of the date of dismissal.

This therefore meant that, if Mr Milford was dismissed from 1 October 2014 as Coles asserted, his application was some four years late.

At a hearing in June 2019, Deputy President Booth of the FWC determined that Mr Milford was dismissed on 1 October 2014, and his application must therefore fail unless he applied for, and was granted, an extension of time. Mr Milford later applied for this extension of time, but this was denied by the Deputy President.

Mr Milford appealed both decisions to the Full Bench of the FWC and, following a hearing in November 2019, overturned Deputy President Booth’s decisions, holding that as per Hewitt the FWC had no power to determine an adverse action case on anything other than what was included in the application itself; any dispute about if, or when, Mr Milford was dismissed was properly left to the court.

However, Coles applied to the Federal Court for judicial review of this decision, with Chief Justice Allsop directing that the matter be heard by a full court due to its significance. On 11 September 2020 the Full Court of the Federal Court delivered judgment in favour of Coles.

The Full Court decided that, contrary to Hewitt, the FWC did have the power to determine whether or not Mr Milford’s application was properly made within the relevant timeframe.

Mr Milford’s application to the High Court requires special leave to appeal, and the determination of this preliminary question has yet to be determined. Whether the High Court will choose to hear the matter is therefore not yet known, but given the questions the case raises about the powers of the FWC it is quite possible that leave will be granted.


An age of uncertainty

If the decision of the Full Court is allowed to stand, the power of the FWC to deal with adverse action applications would increase dramatically.

Where previously disputes about “if” and “when” an employee was dismissed were relegated to the courts, these questions would be able to be dealt with by the FWC. Whether the FWC has adequate resources to deal with these questions, on top of its other duties, is open to debate.

Perhaps more than anything, the lesson of Mr Milford’s case is that the Australian industrial relations framework is not as certain as might be wished.

Even after ten years, courts and tribunals are finding gaps, holes, and uncertainties in the Act which overturn common understanding on a regular basis. In just the last few years, the cases of Workpac Pty Ltd v Skene and Workpac Pty Ltd v Rosatto threw the practical reality of casual employment into a tailspin, while the case of Mondelez displaced decades of industrial practice in the accrual of personal leave until corrected by the High Court.

Now, in Mr Milford’s case, it seems that even the FWC is not sure what it can and cannot do, with the High Court being called upon to settle once and for exactly how far the powers of the tribunal go.

This is a worrying trend where, increasingly, compliance with industrial laws is a key enforcement priority for governments, as it becomes increasingly apparent that those industrial laws are manifestly unclear, even for those who administer them.

This therefore begs the question: how many holes in Australia’s industrial relations system must be exposed before it is declared broken?