What are general protections?
Under the Fair Work Act, employees have rights called 'General protections'. These include:
- the right to correct pay, leave and other entitlements
- the right to be in a union and take part in union activity (or to not do this)
- the right to take time off work if you are sick or injured
- the right not to be discriminated against according to State or Federal anti-discrimination laws
- the right to make a complaint or enquiry about workplace conditions
- the right to the benefit of an industrial law or instrument (such as an award, enterprise agreement, workplace safety law).
If you have been dismissed from your job because you attempted to exercise a right, you may be able to make a general protections claim.
For more information, see What are general protections?
To apply you must be covered by laws about general protections. Most people that work for private businesses are covered. If you are a public servant employed by a State or local government, you may not be covered.
If laws about general protections do not cover you, you may be able to make a different sort of claim. You should get legal advice to help you work out what is the best option for you.
If you are an employee working in NSW, you will be covered by national employment laws about general protections in the workplace unless you are employed by the NSW government, a local council, or a NSW state government owned corporation.
Independent contractors may be covered in certain situations, but you should get legal advice.
Laws about general protections in the workplace and who they apply to are complicated. If you are not sure whether they cover you, you should get legal advice.
If laws about general protections in the workplace do not apply to you, you may still have rights under other laws. You should get legal advice if you have been dismissed or are having problems at work. You may have other options, such as:
- unfair dismissal claim if you were dismissed (for more information, see Unfair dismissal)
- discrimination claim (if you have been discriminated against at work)
- bullying claim (if you have not been dismissed but are experiencing workplace bullying).
f you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.
The Commission may accept late applications, but usually only in exceptional cases.
It is possible to make a general protections application even if you have not been dismissed. If you were not dismissed, but a general protection has been breached by your employer, a time limit of six years applies if you want to ask the court for an order. However, it is a good idea to make your application as soon as possible and get legal advice straight away.
For a handy tool that you can use to help you work out if you can make a general protections application, see Checklist - Making a general protections dismissal application.
What is the time limit?
If you want to make a general protections dismissal application, you must do so within 21 days of the date you were dismissed.
You need to make sure the Fair Work Commission (the Commission) receives your application within this time.
The day you were dismissed will usually be either the last day you worked or when you were told you were dismissed (whichever is later). If you are not sure of the date you must make your application by, you should get legal advice urgently.
If the relevant day to lodge your application is a Saturday, Sunday or public holiday you can make your application on the next business day, but you must make sure that the Commission receives your application by that day.
For example, if the last day for making an application is Sunday 10 June, and Monday 11 June is a public holiday, the application can be made no later than Tuesday 12 June. It is also possible to file your application electronically (such as by email or by using the Commission's eFiling system), and you should do so before midnight on the last day for making the application
Late applications
The Commission may accept late applications in very limited circumstances. Some examples of when the Commission may accept late applications include where:
- you were in hospital
- you had legal advice that was wrong
- you had a lawyer and the application was late because they made a mistake
- your application was late because of a mistake made by the Commission.
Whether a late application will be accepted will depend on all the circumstances of your case. The Commission will also look at:
- the strength of your case
- whether you disputed the dismissal
- whether it would be fair to allow you to have an extension (considering other people that have been in a similar position to you)
- whether accepting the late application would cause unfairness to the employer.
If more than 21 days have passed since you were dismissed, you should get legal advice urgently.
For a handy guide to all the requirements you have to meet to make a general protections dismissal application, see Checklist - Making a general protections dismissal application.
You should get legal advice if you have been dismissed or are having problems at work. You may have other options, such as:
- unfair dismissal claim if you were dismissed (for more information, see Unfair dismissal)
- discrimination claim (if you have been discriminated against at work)
- bullying claim (if you have not been dismissed but are experiencing workplace bullying).
If you have been dismissed from your job and you think the dismissal was against national laws about general protections in the workplace, you may be able to apply to the Fair Work Commission (the Commission) to try and resolve your dispute with your employer.
You must make a general protections dismissal application to the Commission within 21 days of the date you were dismissed.
You may be able to make a number of different claims against your employer. Before you make any claims, you should get legal advice to help you work out what is the right option for you.
How to make an application
To make a general protections application you need to:
- get a copy of the form
- fill in the form
- pay an application fee (or apply to waive (cancel) the fee if you cannot afford it)
- file the form with the Commission.
For more information see Step by Step Guide - Making an application for general protections dismissal.
What next? The employer's response to your application
Once the Commission gets your application, they will serve it on (give it to) your employer.
Your employer has seven days from when it receives the application to fill in a response form and file it with the Commission. Your employer must also serve you with a copy of their response.
For more information, see What happens after you make an application, below.
After you file a general protections dismissal application at the Commission, the Commission will arrange a conference with you and your employer to try and settle the dispute. You will be sent a notice of listing with the date, time and location of the conference. For more information, see Conciliation, below.
After you apply, the Fair Work Commission (the Commission) will notify the employer that you have made a general protections dismissal application.
The Commission will send the employer:
- a copy of your application
- Form F8A - Employer's Response to Application for the Commission to Deal with a General Protections Dispute, and
- The Commission Guide to General Protections.
The case will then be allocated to a member of the Commission, and the member's associate will send out a notice of listing to both you and the employer, giving you the date, time and location of the mediation or conciliation conference, and any further instructions (if needed).
The employer must respond to your application within seven days by filling in form F8A and attaching any supporting documents. The form must include:
- the employer's contact details
- the contact details of their representative (if they have one)
- whether or not they agree with your application and if not, the reasons why they do not agree
- a response to your claim that they have broken the law
- an explanation for why you were dismissed.
Once the form is completed, your employer must file the form with the Commission and serve (give) a copy to you.
The employer can serve a copy on you by:
- sending it by express post to the address you put on your application
- sending it by registered post to the address you put on your application
- emailing it, if you included an email address on your application
- faxing it, if you put a fax number on your application
- leaving it with you, or any person apparently over the age of 15 years, at your home.
If you do not get a copy of the response you should call the Commission.
If your employer does not file a form F8A with the Commission, the conciliation that has been listed for your matter will still go ahead at the scheduled time.
For an example of an employer's response, see:
Sample: Sample - Form F8A - Employer's response to General Protections application.
After you file a general protections dismissal application at the Fair Work Commission (the Commission), the Commission will arrange a conference with you and your employer to try and settle the dispute.
You will be sent a notice of listing with the date, time and location of the conference. The notice will also say whether your conference is face-to-face or on the telephone.
The conference may be a mediation or conciliation. Cases are usually listed for conciliation and the information on this section focuses on this. Mediation and conciliation are very similar and the preparation and process is the same for both.
What is conciliation?
Conciliation (or mediation) is a way of solving a problem without having a hearing. A member of the Commission usually meets with you and your employer face to face and helps you to talk and come to an agreement. If you can't go the conciliation in person, you may be able to organise to participate by telephone. You should speak to the Commission.
At conciliation, the Commission member may suggest ways that you could settle your dispute with your employer. They may also give you information about any problems or weaknesses in your case. The Commission member can't make a decision or order in a general protections case.
Conciliation is confidential and it is not recorded. This means that anything that is talked about at conciliation should not be discussed with anyone else after the conciliation and cannot be raised at a hearing later on.
You should prepare for the conciliation (or mediation) so that you get the most out of it. Think about what you want out of the conciliation. The more prepared you are, the easier it will be to talk about your dispute.
For more information see:
Step by step guide - Preparing for conciliation
Step by step guide - Going to conciliation
After conciliation
After conciliation, if you and your employer resolve the dispute, you may be asked to sign a settlement agreement.
If you and your employer can't come to an agreement, the Commission must issue you with a certificate. The certificate is proof that you went to the mediation or conciliation conference and confirms that you were not able to settle the case.
If you can’t reach an agreement with your employer at the Commission, and you want to continue with your case, you can apply to the:
- Commission for an arbitration hearing if you and your employer agree or
- Federal Court of Australia or Federal Circuit and Family Court of Australia.
You must apply to the Commission, the Federal Court of Australia or the Federal Circuit and Family Court of Australia within 14 days of the Commission issuing the certificate.
For more information, see:
Step by step guide - After conciliation
For more information, see Arbitration or Going to Federal Circuit and Family Court of Australia.
If you can’t come to an agreement at conciliation, and you want to continue your case, the Fair Work Commission can deal with a dispute through arbitration.
The Commission can only conduct arbitration if a you and your employer agree. You must apply to the Commission for arbitration within 14 days of the Commission issuing the certificate, confirming that you were not able to settle the case during conciliation.
At arbitration, you will be given a chance to present your evidence (including any witnesses) as will your employer.
Before you go to arbitration, you need to understand how it works, and plan how you are going to present your case.
For more information see Arbitration.
After arbitration
After arbitration, a member of the Commission will make a decision in your case and make orders about whether your dismissal was in breach of a general protection (and what should be done if you were). The orders made could include:
- an order that you be reinstated to your job
- an order that you are paid compensation.
The Commission will not make orders that the employer write you a reference or pay you other amounts of money they owe you. Orders are only about your dismissal. For more information about what to do if your employer hasn’t paid you your wages and entitlements, see Wages and entitlements.
If you lose the case, do not argue with the Commission member. It may be possible to appeal.
For more information, see After the case below.
If you made a general protections dismissal application to the Fair Work Commission (the Commission) but you and your employer couldn't settle the case, you may be able to apply to the Federal Circuit and Family Court of Australia.
The Court can hear your case and make a decision about whether your employer broke the law when they dismissed you. The Court can make orders about compensation and reinstatement, as well as other orders, for example fining your employer.
You must make a general protections application to the Commission before you can go to the Federal Circuit and Family Court of Australia.
This section has information about going to the Federal Circuit and Family Court of Australia. It covers:
- making an application
- hearings
- decisions the Court can make
- orders for costs.
For more information, see Going to the Federal Circuit and Family Court of Australia
If you made a general protections application about your dismissal, the case will end when one of the following has happened:
- you reach an agreement with your employer
- you discontinue (end) the case
- the Fair Work Commission makes a decision after arbitration
- the Federal Circuit and Family Court of Australia makes a decision after a hearing.
This section has information about steps you can take after you have settled the dispute with your employer, or the Federal Circuit and Family Court of Australia has made a decision in your case. It has information about:
If you reach an agreement and your employer doesnt do what they agreed to, or follow the orders made by the Commission, you may be able to take steps to enforce the agreement or order. For more information, see Enforcing agreements and orders.
If you are not happy with the outcome of your case, you may want to appeal. For more information, see Appeals.
If you have been to a mediation or conciliation conference at the Fair Work Commission (the Commission) and the Commission issued a certificate, the next step is to either:
- apply for the Commission to arbitrate your case (if you and your employer agree). For information on this, see Arbitration.
- apply to the Federal Circuit and Family Court of Australia. For information on this, see Going to the Federal Circuit and Family Court of Australia.
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