Fair Work Commission

Coronavirus (COVID-19) & general protections cases

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, we have closed our counters. We are no longer accepting applications in-person or by post. We ask that you:

• make an application using our online lodgment service or
• download and complete the Form F8C and send it by email or fax to your nearest Commission office.

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

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.

What are general protections?

The general protections are intended to:

• protect workplace rights
• protect freedom of association
• provide protection from workplace discrimination, and
• provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

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:

• dismissing them
• not giving them their legal entitlements
• changing their job to their disadvantage
• treating them differently than others
• not hiring them
• offering them different (and unfair) terms and conditions, compared to other employees.

Find out more

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

Workplace rights include:

• receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
• commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action
• being able to make a complaint or inquiry about your employment.

Industrial activities

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:

• becoming or not becoming a member of industrial associations (eg unions and employer associations)
• representing or advancing the views, claims or interests of an industrial association
• taking part in protected industrial action, or
• refusing to take part in industrial action.

Protection from discrimination

An employer also must not take adverse action against an employee because of an attribute of that person, including their:

• race
• colour
• sex
• sexual orientation
• age
• physical or mental disability
• marital status
• family or carer's responsibilities
• pregnancy
• religion
• political opinion
• national extraction
• social origin.

Note: the Fair Work Ombudsman may investigate and take action on workplace discrimination practices.

Sham contracting arrangements

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.

Who do general protections laws apply to?

General protections laws apply to:

• employees and prospective employees
• employers and prospective employers
• independent contractors and prospective independent contractors
• a person who has entered into or who has proposed to enter into a contract for services with an independent contractor
• an industrial association, including an officer or member of an industrial association.

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:

• a constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name
• the Commonwealth (i.e. the federal government and its departments)
• a Commonwealth authority (such as the Fair Work Commission)
• a body corporate incorporated in a territory, or
• an organisation.

What if I'm not eligible to apply?

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.

Types of general protections disputes

There are 2 types of general protections disputes that can be dealt with by the Commission:

• general protections dismissal disputes
• general protections non-dismissal disputes.

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.

Responding to a general protections application

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.

Dealing with a general protections application

Dismissal disputes

If a dispute involves a dismissal, the Commission must convene a private conference to deal with the dismissal.

Non-dismissal disputes

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.

What happens in a general protections conference?

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:

• Guide 4A – Initial conference with a staff conciliator (dismissal disputes only)
• Guide 4B – Conference before a Commission Member (all general protections disputes)

What happens if a matter isn't resolved in a conference?

Dismissal disputes

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.

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.

Non-dismissal disputes

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.

What is the role of the courts?

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:

• issue a fine (known as a pecuniary penalty)
• make an order for reinstatement
• make an order awarding compensation for loss
• grant an injunction or interim injunction
• award costs.

Unlawful termination

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.