Source: The Conversation (Au and NZ)
At Labor’s national conference last week, the Albanese government said it would establish a new federal Fair Work Court to provide “simpler, fairer and faster” resolution of workplace disputes.
At this stage, details remain sparse. But the broad idea is this new specialist court will work alongside the Fair Work Commission – the existing employment tribunal – to facilitate speedier resolution of claims brought under the Fair Work Act.
There is growing evidence to suggest that trying to resolve workplace disputes and recover backpay is too costly, too hard and too slow.
Intentional “wage theft” has been a criminal offence for more than 18 months. Despite this, Prime Minister Anthony Albanese told the conference there were:
still too many of the most vulnerable workers in this country being illegally underpaid, because they cannot access or afford the justice that they are owed.
The new court aims to fix this problem by appointing judges with expertise in workplace law and bridging the existing gap between the Fair Work Commission and the federal court system.
Why do we need a new court?
One of the reasons for the current disjointed process is that, due to constitutional limitations, the Fair Work Commission cannot simultaneously create rights and enforce them.
The tribunal has the power to make modern awards and to approve enterprise agreements. It also has the power to conciliate and arbitrate unfair dismissal claims and some industrial disputes.
However, it is not authorised to determine an underpayment claim and it cannot impose penalties where there is a contravention of the Fair Work Act.
Currently, only designated courts have the authority to do this.
We’ve been here before
A dedicated employment court is not necessarily a new idea. Rather, the Fair Work Court has been described as “decades in the making”.
In 1994, the Keating Labor government established an industrial relations court, which operated separately from the federal court system. This specialist court was abolished under the Howard coalition government in 1997.
The concept of a “one-stop shop” for workplace claims was later floated by Labor while in opposition in 2007, but was ultimately abandoned. Instead, the 2009 Fair Work Act created specialist Fair Work divisions within the federal court system to hear employment matters. It also established a separate “small claims” process for monetary claims (previously capped at $20,000, now at $100,000).
Small claims proceedings are designed to be less formal with the aim of settling disputes quickly and cheaply. However, the small claims process is still seen as confusing and cumbersome, especially for vulnerable workers, such as migrants.
Setting the scope
The Albanese government has signalled it will consult on the design of the new Fair Work Court before the end of the year, including how it would coordinate with the Fair Work Commission, the existing federal courts and the state-based systems.
Rather than simply reforming the small claims process, Labor has left open the possibility the new court will deal with “a whole range of matters”, including:
- bargaining disputes
- appeals from the Fair Work Commission
- unlawful termination matters
- large underpayment claims.
The government says it is committed to working on the design of the new court “as swiftly as possible”.
Other questions to answer
Beyond the scope of the new court, the government will also have to iron out a host of other procedural issues.
Will applicants be able to file a single, rolled up claim in one place and access the conciliation processes of the Fair Work Commission and the judicial powers of the Fair Work Court? Or will they need to file separate claims to access each forum?
What rules of procedure and evidence will apply if the new Court is determining more significant matters and imposing penalties?
If the government wants to improve access to justice, it will need to consider whether class actions can be heard and if and when parties can recover their legal costs. The costs of obtaining legal advice can present a real hurdle, especially where the backpay amount is relatively modest.
Avoiding a ‘lawyer’s picnic’
Labor’s proposal hasn’t been without criticism. Business groups have questioned whether the new court would simply duplicate existing courts, add “another layer of bureaucracy” or even risk creating a “lawyer’s picnic”.
Other commentators believe the creation of a new specialist court will do little to address the inherent complexity of the system.
Employment and Workplace Relations Minister Amanda Rishworth
said she couldn’t see how the court would add an “extra level of regulation”, framing it as:
a more effective and efficient way to ensure that the workplace laws and rights in this country are upheld.
Unions have welcomed the proposal of a dedicated court. But we shouldn’t assume that on its own, creating a new court – even one staffed by specialists – will solve the scourge of underpayment.
Some of the most egregious wrongdoers will still make themselves judgment-proof through insolvency, bankruptcy or abandonment, and workplace justice will continue to be denied.
Tess Hardy receives funding from the Australian Research Council, is Director of the Centre for Employment and Labour Relations Law and Vice-President of the Australian Labour Law Association.
Original source: https://analysis1.mil-osi.com/2026/07/29/chasing-unpaid-wages-is-slow-and-expensive-is-a-new-fair-work-court-the-answer/