Fair Work Commission

The general protections provisions of the Fair Work Act, set out in Part 3–1, aim to protect workplace rights and freedom of association, and to provide protection from workplace discrimination.

The Commission's role under the Fair Work Act is to assist parties, in private conference, to resolve a dispute arising from general protections claims. In limited cases it can make a determination if both parties agree to it doing so.

General protections claims are sometimes referred to as adverse action claims. Adverse actions can include:

• dismissing a person
• not giving a person his or her legal entitlements
• changing a person's job to his or her disadvantage
• treating a person differently than others
• not hiring a person
• offering a person different (and unfair) terms and conditions, compared to other employees

General protections disputes involving dismissal

A person who believes he or she has been dismissed in contravention of the general protections provisions may apply to the Commission to deal with the dispute under s.365 of the Fair Work Act. The application must be made within 21 days of the dismissal taking effect. The Commission must then deal with the dispute, by mediation or conciliation, or by making a recommendation or expressing a view, in private conference. Under the Act, if resolution is unsuccessful, the Commission must issue a certificate to this effect, which allows the applicant to apply within 14 days to the Federal Court of Australia or the Federal Circuit Court of Australia to have the matter determined. Alternatively, the parties can, within the same timeframe, consent to the Commission arbitrating the dispute. The Commission must advise the parties if it considers such a court or arbitration application would have no reasonable prospects of success.

Delivery

In 2015–16, the Commission extended the staff conciliation model that it had successfully piloted in 2014–15 to all general protections applications involving dismissal. The model is based on the Commission's approach to unfair dismissal matters, and involves applications being managed by a central case management team and referred to specialist staff for private telephone conferences.

The staff conciliation model assists the Commission to deal with the volume of applications while at the same time freeing up Commission Members to deal with more complex matters.

Last year's pilot involved applications from Western Australia, Queensland and the Australian Capital Territory. From July to September 2015, the Commission progressively rolled the model out to applications lodged in all states. The Commission also established a dedicated case management team during the year.

In 2015–16, 71 per cent of all matters referred to specialist staff were resolved during conciliation. This closely matches the 73 per cent resolution rate in last year's pilot. This rate was higher than the 60 per cent resolution rate for conferences convened by Commission Members during the pilot period.

The Commission established a participant satisfaction survey during the pilot and continued these surveys during 2015–16. Satisfaction levels with the process, information materials and conduct of the conciliation conference remained high during the year, on par with or better than the pilot results. A total of 72 per cent of participants were either satisfied or very satisfied with the entire general protections conciliation process, including conferences conducted by Members and staff conciliators. This compared with 63 per cent of participants surveyed during the pilot.

The extension of the pilot also enabled more information to be gathered about the outcomes agreed to by parties as a result of conciliation and the Commission is now able to publish this information (see Table 16).

The Commission's focus in 2016–2017 is on continuing to improve both its service model and data collection on the parties' conciliation experiences and outcomes.

Performance

In 2015–16 the Commission:

• received 3,270 applications to deal with general protections disputes involving dismissal
• resolved 71 per cent of general protections applications referred to specialist staff for conciliation
• hosted 27,968 participants in its online eligibility quiz for general protections applications
• received 35,192 website visits to the General Protections Benchbook

Applications made

In 2015–16, the Commission received 3,270 applications to deal with general protections disputes involving dismissal. This was slightly fewer than the 3,382 received in the previous year. Until this reporting period, annual application numbers had been trending upwards since the provisions took effect. The month-by-month statistics on lodgments for 2015–16 show they peaked in December then dipped in January, reflecting an expected drop in activity over the Christmas/New Year period (see Figure 8).

Figure 8: General protections disputes involving dismissal — lodgments — monthly comparison

Figure 8 provides a month-by-month comparison of the number of applications lodged relating to general protections disputes involving dismissal from 2012–13 to 2015–16. It represents data that can be found in Appendix D, Table 62.

Timeliness

The median time from an application being lodged to the first conference being conducted increased slightly in 2015–16 compared to the previous year, from 45 to 50 days.

This was largely the result of issues relating to implementing the new staff conciliation model, which have been addressed.

In 2015–16, 90 per cent of matters were finalised in 103 days compared with 97 days in 2014–15.

Outcomes

In 2015–16, the Commission is for the first time publishing data on the outcomes of general protections applications involving dismissal. The information is similar to that which it provides on unfair dismissal applications. The Commission does this to provide parties preparing for conferences with as much information as possible on how previous applications have been finalised. Whilst parties are not legally required to provide this information, in 2015–16 the Commission was able to collect enough data to publish this indicative information.

The 2015–16 data shows that 53 per cent of general protections applications involving dismissal were resolved in conciliation. A certificate issued that the dispute remained unresolved for 25 per cent of matters.

For matters settled in conciliation, 63 per cent included a monetary payment. Of these, 60 per cent were for amounts of less than $6,000 and 82 per cent were settled for less than $15,000. Unlike the unfair dismissal jurisdiction, the amount of compensation a court or the Commission can order is uncapped for general protections applications.

Arbitration

Very few parties have opted to use the consent arbitration pathway since its introduction in 1 January 2014, and this low take up rate continued in 2015–16. Of the 755 disputes in which a certificate was issued during the year, only 18 (2.4 per cent) were submitted for consent arbitration by the Commission.

General protections disputes not involving dismissal

An employee who believes he or she has been subjected to adverse action for a prohibited reason but who remains employed may also make a general protections application to the Commission, under s.372 of the Fair Work Act.

As with general protections disputes involving dismissal, if attempts to resolve disputes not involving dismissal are unsuccessful at the Commission, the applicant may apply to either the Federal Court of Australia or the Federal Circuit Court of Australia to have them determined. Again, the Commission is obliged to advise the parties if it believes such an application would have no reasonable prospect of success.

In 2015–16, the Commission received 859 applications under s.372 of the Fair Work Act, down slightly from 879 in the previous year. This compares with 504 five years ago, in 2010–11. The number of general protections applications not involving dismissal, as with those involving dismissal, had until this year trended upwards since the provisions took effect.

General protections disputes not involving dismissals are not part of the staff conciliation model, and continue to be dealt with by Commission Members.

Timeliness

In 2015–16, the Commission conducted the first conference for 90 per cent of applications within 54 days of lodgment. This was similar to last year's timeliness result (see Table 23).

Unlawful termination disputes

Employees who fall outside the coverage of the Fair Work Act's general protection provisions (Part 3–1) are able to bring unlawful termination claims under Part 6–4 of the legislation.

The broad application of the general protections scheme means that not many applicants rely on the unlawful termination provisions, which apply mainly to non-national system employees. This is reflected in the considerably lower number of unlawful termination lodgments than general protections disputes of either kind in 2015–16, as in previous years (see Table 24).

This year, the Commission received 81 unlawful termination applications. As with general protections applications both involving and not involving dismissal, this was down on the previous year's total, which was 114.

The Commission finalised 72 matters without a certificate being issued, and 10 with a certificate issued.

Timeliness

In 2015–16, 90 per cent of matters were finalised in 87 days compared with 131 days in 2014–15.