By Aurecon Australasia has successfully appealed a Fair Work Commission decision to issue a certificate allowing a general protections claim to proceed to court, according to HRD America. A Full Bench of the FWC overturned the certificate on 21 October 2026, ruling that the Commission had failed to first determine whether the worker had actually been dismissed.
The dispute centred on a single blank tick box. Aurecon left Question 5.1 on the FWC response form unanswered, which asks whether the employer objects to a conference on jurisdictional grounds. In the next field, Question 5.2, Aurecon stated its position clearly: the worker was not dismissed, she resigned. The worker had filed a general protections application on 23 June 2026 claiming constructive dismissal and alleging adverse action for exercising workplace rights. A conciliation conference on 9 September 2026 did not settle. The next day, the worker’s lawyers asked for the certificate to be issued. Within half an hour, Aurecon’s lawyers objected. The Commissioner issued the certificate on 14 September 2026 and later declined to revoke it, reasoning that Aurecon had not elected to pursue the objection through the designated tick box and had participated in the conference.
Why the tick box mattered less than the form as a whole
The Full Bench relied on the Federal Court’s earlier decision in Coles Supply Chain Pty Ltd v Milford. That case established that when there is a dispute about whether an applicant was actually dismissed, the Commission must resolve that question before it can move to conciliation and certification. The Full Bench found that despite the blank tick box, the response form as a whole made Aurecon’s position unmistakable. It also noted that consent between the parties cannot give the Commission jurisdiction it does not have.
For HR teams, the practical lesson is not simply to fill in every field. The deeper point is that a jurisdictional objection, once raised in substance, creates a threshold question that the Commission must answer. A blank tick box did not waive Aurecon’s objection because the accompanying text stated the grounds clearly. The Full Bench quashed the certificate and sent the matter back to the Commission for the dismissal question to be properly determined.
What changed in section 365 on 7 July 2026
The amendments to section 365 of the Fair Work Act took effect on 7 July 2026, after the worker filed her application but before the conciliation conference. The news brief does not detail the substance of those amendments. HR and payroll readers should review the current wording of section 365 and any Fair Work Commission practice notes issued after that date, as the interaction between the amended provision and the Coles Supply Chain precedent may affect how jurisdictional objections are handled in future matters.
How constructive dismissal claims create a threshold problem
A constructive dismissal claim asserts that a worker resigned but had no real choice due to the employer’s conduct. That assertion makes the existence of a dismissal itself a contested fact. Under the Coles Supply Chain principle, the Commission cannot simply proceed to conciliation and issue a certificate when the employer disputes that a dismissal occurred. The Commission must first determine whether the worker was dismissed within the meaning of the Act.
This creates a sequencing issue for HR teams. A general protections application that is jurisdictionally flawed cannot be cured by participating in conciliation. Aurecon attended the conference, yet the Full Bench still found the certificate invalid. Employers should not assume that attending a conference waives a properly stated jurisdictional objection.
Practical steps for Australian employers
The Aurecon decision gives HR and payroll teams a clear set of practices to follow when responding to general protections applications.
First, state the jurisdictional objection in plain terms in the response form, regardless of whether the tick box is completed. The Full Bench treated the form as a whole, not as a series of isolated fields.
Second, raise the objection early and in writing. Aurecon’s lawyers objected within half an hour of the certificate request. That promptness supported the argument that the objection was pressed.
Third, do not rely on conciliation participation as a waiver. The Full Bench was clear that consent cannot confer jurisdiction.
Fourth, track the dates. The application was filed on 23 June 2026, before the section 365 amendments took effect on 7 July 2026. The timing of the application relative to the amendments may matter in other cases.
| Stage | Date in Aurecon matter | What happened |
|---|---|---|
| Application filed | 23 June 2026 | Worker filed general protections application |
| Section 365 amendments | 7 July 2026 | Amendments took effect |
| Conciliation | 9 September 2026 | Conference held, did not settle |
| Certificate request | 10 September 2026 | Worker’s lawyers requested certificate; Aurecon objected within 30 minutes |
| Certificate issued | 14 September 2026 | Commissioner issued certificate and declined to revoke it |
| Full Bench ruling | 21 October 2026 | Certificate quashed, matter remitted |
The Full Bench’s ruling means the dismissal question must now be determined before any certificate can issue. For employers facing similar claims, the decision confirms that a substantive jurisdictional objection cannot be ignored because of a procedural slip on a form. Australian employers should review their response templates and ensure that legal counsel reviews any general protections response where dismissal is disputed.
Sources: HRD America
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