Members, delegates and enforcing for members. What the union can do in its own name.

1. The application is made to a magistrates court or the FCFCOA (Division 2), for an order other than a penalty (s 548(1)(a)).
2. It is about an amount the employer was required to pay under the FW Act or a fair work instrument, because of a safety net contractual entitlement, or under s 542(1) (s 548(1A)).
3. The applicant says, in the prescribed way, that it wants the small claims procedure. Under reg 4.01(1) that means endorsing the initiating papers with that statement, or lodging a paper that identifies the action and says so, and serving the papers on every other party, unless the court's own rules prescribe another way (Fair Work Regulations reg 4.01(1), (2)).
4. Disputes about whether someone was a casual employee when their employment began can also be small claims (s 548(1C)).

1. The court may not award more than $100,000, or a higher amount if one is prescribed (s 548(2)). Interest does not count towards that limit (s 548(2A)). No higher amount was prescribed in the regulations read on 13 November 2026 (compilation No. 57, 1 October 2026).
2. The court is not bound by the rules of evidence and may act "in an informal manner" and "without regard to legal forms and technicalities" (s 548(3)).
3. A lawyer may appear only with the court's leave (s 548(5)). In the Federal Court's words, the procedure "was required to be conducted informally" and "Lawyers could be involved only if the magistrate granted leave" (Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [18]).
4. If the court makes a small claims order, it may order the employer to pay the applicant's filing fees, despite the general costs rule (s 548(10), (11)).
5. No penalty can be sought in a small claim. A union that wants a penalty, which would ordinarily be paid to it, must bring an ordinary claim.

The regulations allow an official of an industrial association to represent a party in two situations.

1. In the FCFCOA (Division 2), if the party is granted leave (reg 4.01(3)).
2. In a magistrates court, if the party is granted leave and "the law of the State allows a party to be represented in that court, in the circumstances mentioned in paragraph (a), by officials of bodies representing interests related to the matters in dispute" (reg 4.01(4); s 548(9)).

So in a State magistrates court, two things must be true: the court gives leave, and the State's own law allows that kind of representative. For the WA Industrial Magistrates Court, the second question turns on WA law, and no decision applying reg 4.01(4) in that court was found.

1. Apply to the Commission within 21 days after the alleged dismissal took effect (s 366(1)). The application needs only an alleged dismissal, and the Commission does not have to decide whether there was a dismissal before it starts dealing with the dispute (s 368(1A)). A later extension needs exceptional circumstances (s 366(2)).
2. The Commission deals with the dispute other than by arbitration, usually at a private conference (s 368(1), (2)).
3. If the Commission is satisfied that all reasonable attempts to resolve it have been, or are likely to be, unsuccessful, it issues a certificate (s 368(3)(a)).
4. Then, within 14 days of the certificate, either:

1. the parties tell the Commission they agree to it arbitrating the dispute (s 369(1)); or
2. a general protections court application is made in the Federal Court or the FCFCOA (s 370(a)).

1. A court application that includes an application for an interim injunction can be made without a certificate (s 370(b)).

The 21-day limits for unfair dismissal and general protections run side by side. A person generally cannot pursue both for the same dismissal (FW Act Part 6-1, ss 725 to 732), so the choice has to be made early.

1. A person may be represented by "a lawyer or paid agent only with the permission" of the Commission, except as the Act or the Rules provide (s 596(1)).
2. A person is taken not to be represented by a lawyer or paid agent if the lawyer or agent "is an employee or officer of ... an organisation ... that is representing the person" (s 596(4)(b)(i)). So an organiser, industrial officer or in-house lawyer of a registered union can appear for a member without permission.
3. Section 596(4)(b)(i) refers to "an organisation", which means a registered union (s 12). An unpaid official of a state-only union is not a "paid agent" either, because a paid agent is one who charges or receives a fee (s 12). A lawyer employed by a state-only union is still a lawyer, and is not covered by s 596(4)(b)(i).
4. The Commission's Rules set out when a lawyer or paid agent needs permission.

1. Permission is needed only for a lawyer or paid agent "participating in a conference or hearing"; otherwise a lawyer or paid agent may act without it (Fair Work Commission Rules 2024 r 13(1)).
2. No permission is needed for a conference conducted by Commission staff in an unfair dismissal application (r 13(2)(b)(i)).
3. Permission is still needed for a conference before a Commission Member in an unfair dismissal application (r 13(4)).
4. General protections conferences are not in the r 13(2) list, so permission is needed for them.

1. Permission is a real decision, not a formality. It "cannot be properly characterised as a mere procedural decision" (Warrell v Walton [2013] FCA 291 at [24]).

1. In the Commission each person bears its own costs (s 611(1)). The Commission may order costs where an application or response was made "vexatiously or without reasonable cause", or where it should have been reasonably apparent that it had no reasonable prospect of success (s 611(2)).
2. In an unfair dismissal matter, costs may be ordered against a party for an unreasonable act or omission (s 400A). Section 401, which allows costs against a representative, applies only where the party needed the Commission's permission to be represented by that lawyer or paid agent (s 401(1)(c)). A union officer or employee, who needs no permission (s 596(4)(b)), does not fall within that description on the words of s 401.
3. Where the union itself is the s 365 applicant, it is the party against whom a costs order under s 611 could be made.
4. In court, costs may be ordered only if a party started proceedings vexatiously or without reasonable cause, caused costs by an unreasonable act or omission, or unreasonably refused to take part in a related Commission matter (s 570(2)).

The Full Court held that a delegate may represent "all members of the organisation, and persons eligible to be members, who work in the enterprise or regulated business in which the delegate works, regardless of whether they are employees of the delegate's employer" (Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187 at [109]). So a delegate employed by a host business may represent eligible labour hire workers on the same site.

Section 350A(1) binds "the employer of a workplace delegate". The Full Court, explaining why s 350C(4) is directed at the delegate's employer, said "It is that employer that is in a position to affect the workplace delegate's activities in relation to that role" ([2025] FCAFC 187 at [43]).

A delegate employed by a labour hire provider and placed with a host is employed by the provider, not the host. Whether the host owes that delegate any duty under s 350A, or could be liable as a person "involved in" a provider's contravention under s 550, is a point no decision settles.

1. A person must not take adverse action against another because the other person "is or is not, or was or was not, an officer or member of an industrial association", or engages in lawful industrial activity (s 346).
2. Industrial activity includes joining or leaving a union, organising or taking part in a lawful union activity, representing the union's views or claims, paying union fees and seeking to be represented by a union (s 347(a), (b)).
3. Because a delegate is an "officer" (s 12), action taken because a person is a delegate is caught by s 346(a).
4. Once it is alleged that action was taken for a prohibited reason, the reason is presumed unless the person who took the action proves otherwise (s 361(1)). The presumption does not apply to an application for an interim injunction (s 361(2)).
5. The court asks why the decision-maker acted. It is a "determination of fact as to the reasons which motivated the person who took the adverse action" (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [19]).
6. Union office does not make the employer's burden under s 361 heavier. In the words of two of the Justices (French CJ and Crennan J), "a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers" ([2012] HCA 32 at [60]).
7. An employer must not induce an employee to join, not join, stay in or leave a union (s 350).

1. Whose conduct is the union's. For these provisions, the following action is the union's action, and the state of mind of the person who took it is the union's (s 363(1), (3)):

1. action of the union's committee of management;
2. action of an officer or agent acting in that capacity, which includes a delegate;
3. action of members that the rules, the committee or an officer authorised;
4. action of a member who deals with the employer for the members.

The union escapes responsibility for items (iii) and (iv) only if the committee, an authorised person or an officer took all reasonable steps to prevent the action (s 363(2)).

1. No coercion. A person must not take or threaten action "with intent to coerce the other person, or a third person, to engage in industrial activity" (s 348). A union delegate who, "by the exercise of illegitimate authority", stopped a worker working on a building site until he paid a fee to the union contravened s 348 (Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156 at [231]).
2. No false statements about membership. A person must not knowingly or recklessly misrepresent another person's obligation to engage in industrial activity, such as joining a union (s 349(1)). The interference with rights of association "by the making of false or misleading representations ... is the gravamen of a contravention" (Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [62]).
3. No closed shop. "Adverse action" includes a prospective employer refusing to employ someone, and an industrial association acting so as to prejudice a person's prospective employment (s 342(1) items 2 and 7, as summarised in Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [10]).
4. No bargaining services fees. A union, or its officer or member, must not demand payment of a fee for services in relation to an enterprise agreement, including bargaining for it or its making, approval, operation, variation or termination (s 353(1)-(3)). Membership fees are not bargaining services fees (s 353(2)), and a fee payable under a contract for bargaining services is allowed (s 353(4)). No court decision applying s 353 was found.
5. No objectionable terms. A term that requires or permits a contravention of Part 3-1, or requires payment of a bargaining services fee, is an "objectionable term" (s 12). It is an unlawful term in an enterprise agreement (s 194(b)).
6. No discrimination against an employer because of the instrument that covers its employees, or because an agreement does or does not cover a particular union (s 354(1)). Protected industrial action and some Commonwealth procurement and grant preferences are excepted (s 354(2), (2A), (2B)).

1. Favour its own members. The Full Court said "it is not adverse action for a union to discriminate in favour of its own members and against non-members" (United Firefighters' Union of Australia v Country Fire Authority [2015] FCAFC 1 at [228]). That was a brief statement, referring to s 342(1), not the point the case decided.
2. Have union facilities in an agreement. A clause giving two unions, and not a third, noticeboards, fee deduction and training leave was not an inducement to membership action. How employees "would be motivated to take membership action in respect of such matters was not explained", nor was it apparent (Woolworths Group Limited [2024] FWCFB 314 at [10]).