The current coronavirus (COVID-19) situation is affecting how we deal with general protections cases.
You can still make a general protections application during this time.
For everyone’s safety, our counters are closed. This means that you can’t lodge your application at the Fair Work Commission in person. You can:
Australia Post is experiencing delays because of COVID-19. If you can’t lodge electronically and you need to post your application, make sure you allow extra time for postal services. Time limits for applications still apply.
If you’re having trouble lodging an application, please call us on 1300 799 675.
If you are involved in a general protections case that’s already underway, it will continue to proceed.
We are trying as hard as we can to help resolve cases as quickly as possible, but our operations have been affected along with all Australian workplaces. Because of this, you may find that your case takes longer than normal to process.
Where possible, we will deal with your case entirely by phone or videoconference. This means that you will not have to come in to the Commission.
New workplace rights have been introduced in relation to the JobKeeper scheme and the COVIDSafe app. These workplace rights are protected under the general protections provisions of the Fair Work Act 2009.
The general protections are intended to:
A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
For more information see our General protections benchbook, which contains detailed information and links to cases setting out eligibility and the Fair Work Commission process, including information on objections.
Workplace rights include:
A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.
Industrial activities cover activities associated with freedom of association including:
An employer also must not take adverse action against an employee because of an attribute of that person, including their:
Note: the Fair Work Ombudsman may investigate and take action on workplace discrimination practices.
An employer must not tell an employee that they are being hired as a contractor if they are really an employee.
An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.
See Guide 1 – Overview of general protections laws (PDF) for more information about general protections laws.
General protections laws apply to:
General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the Australian Capital Territory or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a territory or a Commonwealth place.
A constitutionally covered entity can be any of the following:
If you're an employee but you're not in the national system, you may be eligible to lodge an unlawful termination application. See the Unlawful termination section, below.
If the nature of your dispute is not covered by general protections laws, you may want to check if you're eligible to lodge an unfair dismissal application.
There are 2 types of general protections disputes that can be dealt with by the Commission:
General protections dismissal disputes cannot be heard by a court without the parties first having a conference at the Commission. This does not apply to non-dismissal disputes.
There are strict timeframes and lodgment requirements that apply. See Guide 2 – Making a general protections application (PDF), for more information.
The respondent to the application, usually the employer, will need to lodge a response to the application with the Commission.
There are strict timeframes and lodgment requirements that apply. See Guide 3 – Responding to a general protections application (PDF), for more information.
If a dispute involves a dismissal, the Commission must convene a private conference to deal with the dismissal.
If a dispute doesn't involve a dismissal, the Commission will convene a private conference to deal with the dispute if both parties agree to participate.
If one or both of the parties don't agree to participate in the conference, the applicant can choose to make an application to a court to deal with the matter.
Conferences for general protections matters are usually private, and can be held face-to-face or by telephone. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent, though they can ask for permission to be represented.
For information about the conference process see:
If a dispute involving a dismissal is not resolved during the conference, and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then the Commission will issue the parties a certificate to that effect.
The parties can ask the Commission to arbitrate and therefore finally determine the matter. The Commission can only arbitrate where both parties agree and notify the Commission of their consent.
See Guide 5 – The consent arbitration process (PDF), for more information about arbitration.
Form F8B – Notification of agreement for consent arbitration of a general protections dispute
If the parties do not consent to the Commission arbitrating the dispute, an applicant can choose to progress their matter by making a separate application to the Federal Circuit Court or the Federal Court. If the Commission considers that an application to either court would not have a reasonable prospect of success, it must advise the parties accordingly.
See Guide 6 – General protections applications not resolved at the Commission (PDF), for information about what happens next.
If a dispute doesn't involve a dismissal and the dispute is not resolved during the conference, if the Commission considers that an application to either Court would not have a reasonable prospect of success, it must advise the parties accordingly.
See Guide 6 – General protections applications not resolved at the Commission (PDF), for information about what happens next.
The Federal Circuit Court and the Federal Court have the power to enforce general protections laws. In the event that a person is found to have breached a general protections law, these courts have the power to:
If an employee that is not a national system employee has been dismissed and alleges their dismissal was in contravention of s.772 of the Fair Work Act 2009, they may make an unlawful termination application to the Commission.
Note: an employee can only make an unlawful termination application if they are not eligible to make a general protections application.
If you've received a copy of a general protections application, it means:
If you think 'adverse action' was taken against you by your employer (other than ending your employment):