In July 2012, the predecessor to the Fair Work Commission, Fair Work Australia, commenced a pilot program with the Employment Law Centre of Western Australia (ELCWA) to assist self-represented applicants who lodged a general protections application. The pilot program continued until 30 June 2013. The pilot had the following aims:
- to assist self-represented applicants to understand the general protections provisions of the Fair Work Act 2009
- to encourage self-represented applicants to think about refining their applications to ensure that a contravention under the general protections part of the Fair Work Act can be established
- to facilitate the provision of timely legal advice that may lead an applicant to discontinue their application where there is a more appropriate avenue to redress their grievance, minimising inconvenience for respondents and encouraging efficient handling of matters by the Commission, and
- to bridge the gap between the procedural function of the Commission (the registry), which can only provide information, rather than legal advice, and its formal functions as carried out by Commission members.
The RMIT Centre for Innovative Justice (CIJ) conducted an assessment of the first 10 months of the operation of the pilot program, in particular examining participants' responses to the pilot, and the impact the pilot program had on their applications.
In conducting this assessment, the CIJ examined a range of data provided by the Commission, including:
- responses of a number of pilot participants to a survey conducted by the Commission
- observations from Commission members about the experience of self-represented applicants in the general protections jurisdiction, and
- feedback from the ELCWA, Commission Members and staff about the pilot.
The CIJ also reviewed relevant research about the experience of self-represented litigants in the legal process, patterns of advice-seeking behaviour, and the value of receiving early advice about the merits and structure of their claim.
The CIJ made a number of recommendations including:
- that the Commission implement an ongoing, formalised program in which self-represented applicants in general protections matters are referred for assessment for pro bono legal advice and assistance in all states and territories, and
- refinements that could be made to the procedure and to the information available regarding general protections.