Employment & Industrial Relations
11. General Protections Claims
Firm / Chambers:
Last updated: 26 Jul 2015
- A general protections application must be lodged with the Fair Work Commission and served on (sent to) the employer. Individuals such as a manager can also be named in the application. There is an application fee that may be waived in limited circumstances.
- First a conciliation date will be listed:
- if the claim relates to termination of employment the employer is required to file a response to the claim and attend a conciliation conference;
- if the claim does not relate to termination of employment the Fair Work Commission will convene a conciliation conference if both parties agree to attend; and
- if one or both parties do not agree to attend a conciliation conference the matter will be referred to a court to deal with the matter.
- Where possible the conciliation conference is held in person at the Fair Work Commission. A Fair Work Commissioner listens to your claim and assists in attempting to resolve the issue.
- Generally lawyers will represent parties at conciliation conferences however it is not mandatory.
- The session may consist of:
- the opportunity for the employee and the employer to each tell their side of the story;
- discussion about the strengths and weaknesses of the claim;
- discussion about any procedural issues such as:
- whether the application was lodged outside the 21 day time limitation period; and
- whether the employee is not covered by the national industrial relations system;
- breaking into private sessions with the conciliator;
- negotiations such as:
- settling the matter for an amount of compensation or reinstatement;
- agreeing to return property;
- agreeing to pay outstanding entitlements;
- agreeing to provide the employee with an opportunity to resign; and
- agreeing to provide the employee with a statement of service.
- If the parties can reach an agreement then the matter can be finalised in a deed of release.
- If the parties sign the deed of release then any settlement amount should be paid by the agreed date and the matter will be finalised.
- If the parties cannot come to an agreement through conciliation the commission will issue a certificate stating that the commission is satisfied that all reasonable attempts to resolve the dispute have been unsuccessful. The certificate is used as proof that the matter has been conciliated if the matter proceeds to court.
- If the matter is not settled at conciliation the next step will be to prepare for a hearing.
- The hearing can take place:
- at the Fair Work Commission if both parties agree and if the dismissal occurred after 1 January 2014; or
- at the Federal Circuit Court or the Federal Court.
- If the matter did not relate to a dismissal and a conciliation conference did not occur the matter must be heard at the Federal Circuit Court or the Federal Court.
- Hearings are generally public hearings and the decision will be published.
- If the Fair Work Commission or the court decide that there has been a breach of the general protections provisions of the Fair Work Act the following can be ordered:
- a fine or pecuniary penalty may be issued to the employer;
- an order for reinstatement;
- an order awarding compensation for loss;
- an injunction or interim injunction which means that an order will be made to stop the adverse action from continuing; and
- costs may be awarded which means that the losing party may have to pay some of the legal costs of the other side.
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