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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
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Industrial action benchbook

Employee claim action

On this page:

  • Employee claim action process under the Fair Work Act
  • Permitted matters
  • Requirements for employee claim action
  • Unlawful terms
Content

Employee claim action process under the Fair Work Act

See Fair Work Act s.409

The majority of protected industrial action taken is employee claim action. The following diagram illustrates the process by which industrial action may be taken that is protected.

employee_claim_action

Employee claim action is industrial action for a proposed enterprise agreement:

that is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement, and
where the claims are only about, or reasonably believed to be about, permitted matters.
The industrial action must be organised or engaged in:

  • against an employer that will be covered by the proposed enterprise agreement, and:
  • by a bargaining representative of an employee who will be covered by the proposed enterprise agreement, or
  • by an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action.

Note: If a union is a bargaining representative of an employee who will be covered by the proposed enterprise agreement, the reference to a bargaining representative of the employee includes a reference to an officer of the union.[1]

What constitutes a reasonable belief depends on the circumstances of the case and the person concerned.[2]

Example

The Commission would expect an official of a union with extensive experience in enterprise bargaining to have a greater appreciation of the limits of the permitted matters than a novice employee bargaining representative who has been appointed by his or her colleagues to represent them in bargaining with the employer.[3]

Permitted matters

See Fair Work Act s.172(1)

The following matters are permitted to be included in an enterprise agreement:

  • matters pertaining to the employer – employee relationship
  • matters pertaining to the employer – union relationship
  • terms about deductions from wages, and
  • terms about how the agreement will operate.
Note:  The Enterprise agreements benchbook contains detailed information and links to cases setting out types of agreements and the process to make, vary and terminate them; including detailed information on permitted matters.

Requirements for employee claim action

See Fair Work Act s.409

The Fair Work Act sets out specific requirements which must be met before employee claim action can be taken:

  • employee claim action must be authorised by a protected action ballot
  • employee claim action must not be in support of or to advance claims to include unlawful terms in the agreement
  • a bargaining representative of an employee who will be covered by the proposed enterprise agreement must not be engaging in pattern bargaining in relation to the proposed enterprise agreement, and
  • the employee claim action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene a Commission order that relates to a significant extent to a demarcation dispute.

Related information

  • Common requirements
  • Protected action ballots
  • Pattern bargaining

Unlawful terms

See Fair Work Act s.194

Employee claim action must not be in support of or to advance claims to include unlawful terms in an enterprise agreement.[4] A term of an enterprise agreement is an unlawful term if it is:

  • a discriminatory term
  • an objectionable term
  • a term that would allow an employee or employer to opt-out of coverage of the agreement
  • an objectionable emergency management term
  • a term, where an employee would be protected from unfair dismissal after completing the minimum employment period, that confers an entitlement or remedy in relation to unfair termination of the employee’s employment before the employee has completed that period
  • a term that excludes the application of the unfair dismissal provisions in Part 3–2 of the Fair Work Act to a person, or modifies the application of these provisions in a way that is detrimental to, or in relation to, a person
  • a term that is inconsistent with a provision of Part 3–3 of the Fair Work Act (which deals with industrial action)
  • a term that provides for an entitlement to enter premises for certain purposes, which is not in accordance with the right of entry provisions in Part 3–4 of the Fair Work Act
  • a term that provides for the exercise of a State or Territory OHS right other than in accordance with the right of entry provisions in Part 3–4 of the Fair Work Act, or
  • a term that requires or permits superannuation contributions for a default fund employee to be made to a superannuation fund that does not satisfy one of the following:
    • offers a MySuper product
    • is an exempt public sector scheme, or
    • is a fund of which a relevant employee is a defined benefit member.

Meaning of objectionable term

As noted above, an objectionable term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

An objectionable term is a term that requires or permits a contravention of the Fair Work Act’s general protections provisions or the payment of a bargaining services fee.

A bargaining services fee is any fee payable to an industrial association, or to someone in lieu of an industrial association, for the provision of bargaining services. This does not include membership fees. Industrial associations can offer bargaining services on a fee for service basis where an individual voluntarily enters into a contract.

Meaning of objectionable emergency management term

As set out above, a objectionable emergency management term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

A term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of:

  • restricting or limiting the body's ability to do any of the following:
    • engage or deploy its volunteers
    • provide support or equipment to those volunteers
    • manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers
    • otherwise manage its operations in relation to those volunteers, or
  • requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in s.195A(1)(a), or
  • restricting or limiting the body's ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community, or
  • requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

However, a term of an enterprise agreement is not an objectionable emergency management term if:

  • both of the following apply:
    • the term provides for the matters required by s.205(1)–(1A) (which deal with terms about consultation in enterprise agreements)
    • the term does not provide for any other matter that has, or is likely to have, the effect referred to in s.195A(1), or
  • the term is the model consultation term.

Sections 195A(1)(a), (b), (c) and (d) do not limit each other.

Meaning of designated emergency management body

A body is a designated emergency management body if:

  • either:
    • the body is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory, or
    • the body is a recognised emergency management body that is prescribed by the regulations for the purposes of s.195A(4), and
  • the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

However, a body is not a designated emergency management body if the body is, or is a part of a body that is, prescribed by the regulations for the purposes of this subsection.

Meaning of volunteer of a designated emergency management body

A person is a volunteer of a designated emergency management body if:

  • the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity), and
  • the person is a member of, or has a member-like association with, the body.

Limited application of objectionable emergency management term for certain terms

If:

  • a term of an enterprise agreement deals to any extent with the following matters relating to provision of essential services or to situations of emergency:
  • directions to perform work (including to perform work at a particular time or place, or in a particular way)
    • directions not to perform work (including not to perform work at a particular time or place, or in a particular way), and
    • the application of s.195A(1) in relation to the term would (apart from this subsection) be beyond the Commonwealth’s legislative power to the extent that the term deals with those matters;
  • then s.195A(1) does not apply in relation to the term to that extent.

Note: See paragraph (l) of the definition of excluded subject matter in s.30A(1) and s.30K(1).

References

Content

[1] Fair Work Act s.409(7).

[2] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and Ors [2015] FWCFB 210 (Ross J, Hatcher VP, Simpson C, 10 February 2015) at para. 40; citing Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division [2010] FWAFB 344 (Kaufman SDP, Ives DP, Lewin C, 20 January 2010) at para. 48.

[3] Explanatory Memorandum to Fair Work Bill 2008 at para. 1642.

[4] Fair Work Act s.409(3).

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 14 Feb 2022
Location on last update: https://www.fwc.gov.au/employee-claim-action