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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
        • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
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General protections benchbook

Extension of time for lodging an application

On this page:

  • Introduction
  • What are exceptional circumstances?
  • Case examples
  • Reason for delay
  • Representative error
  • Action taken to dispute the dismissal
  • Case examples
  • Prejudice to the employer
  • Case examples
  • Merits of the application
  • Case examples
  • Fairness as between the person and other persons in a similar position
  • Case examples
Content

Introduction

Contains issues that may form the basis of a jurisdictional issue

The Fair Work Commission may extend the time period for lodging a dismissal dispute application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time.

The Commission will take into account:

  • the reasons for the delay
  • any action taken by the former employee to dispute the dismissal
  • prejudice to the employer (including prejudice caused by the delay)
  • the merits of the application, and
  • fairness between the former employee and other persons in similar positions.

What are exceptional circumstances?

These are circumstances that are:

  • out of the ordinary course
  • unusual
  • special, or
  • uncommon.[1]

They need not be:

  • unique
  • unprecedented, or
  • very rare.[2]

Exceptional circumstances are NOT regularly, routinely or normally encountered.[3]

Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[4] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[5]

Ignorance of the timeframe for lodgment is not an exceptional circumstance.[6]

Case examples

Exceptional circumstances

Representative error

Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 (Watson SDP, Drake SDP, Harrison C, 17 May 2011), [(2011) 211 IR 347].

Length of time outside timeframe: 3 days

The employee’s initial representative overlooked a reminder to file the application for a general protections claim. The employee had given specific instructions to his representative to file the claim.

On appeal it was found that he was entitled to rely on his representative and was blameless in relation to the delay.

Various reasons

Wayne Candy v Structural Cranes Pty Ltd [2012] FWA 5878 (Harrison DP, 12 July 2012).

Length of time outside timeframe: 2 days

The reasons for the delay were a combination of the applicant’s representative being absent on pre-arranged leave, the applicant’s inability to obtain another solicitor who would take the matter without guarantee of payment and the applicant’s state of health, which caused him to miss a meeting with his solicitor on the next working day after the date the application was due.

Whilst any one of these circumstances taken separately might not satisfy the criteria of ‘exceptional’, taken together they satisfied the criteria for admission of the application out of time.

Impairment of cognitive capacity

Ellis v Melton Shire Council [2012] FWA 1033 (Lewin C, 8 February 2012).

Length of time outside timeframe: 48 days

The applicant was suffering from severe impairment of her cognitive capacity to make the application within the period between the termination of her employment until sometime not long before it was made. This was confirmed by descriptive evidence from her doctor of the psychological condition she suffered after the termination of her employment.

Technical issues

Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging [2011] FWA 2496 (Ryan C, 27 April 2011).

Length of time outside timeframe: 101 days

The critical reason for the delay concerned a simple filing error made by the barrister briefed to prepare and file the application in circumstances where the simple error was not readily identifiable by either the barrister or the Commission who received the application through the eFiling system.

Error in initial application

Lane v Kangaroo Island Dive & Adventures Pty Ltd [2010] FWA 3939 (O’Callaghan SDP, 25 May 2010).

Length of time outside timeframe: 12 days

The applicant made an initial application under s.773 within time. The application was made in error as s.773 was not available in that situation. The applicant did not become aware of the error until the conference.

To the extent that this explained the subsequent delay in lodgment of the correct application, the Commission considered it represented an acceptable reason for the delay.

Lodged in wrong jurisdiction

Gough v LifeAid Pty Ltd [2010] FWA 2481 (Richards SDP, 15 April 2010).

Length of time outside timeframe: 16 days

In the first place the applicant made an application within the time limit to the Fair Work Ombudsman. He was then advised to make an application to the Commission.

The Commissioner said a confused state of mind about the proper basis of an application to the correct public body might not itself provide an exceptional circumstance, however the Fair Work Ombudsman did not respond to registered mail until nine days after it was sent and was therefore responsible for the subsequent period of delay.

NOT exceptional circumstances

Mental state

Kuruppuarachchige v Curry Leaf Sri Lankan Restaurant Pty Ltd [2012] FWA 8205 (Deegan C, 20 September 2012).

Length of time outside timeframe: 562 days

The Commission was prepared to accept that the termination had an effect on the applicant’s state of mind but was not prepared to accept that this condition existed for almost 2 years.

The Commission also did not accept that the applicant’s limited English or lack of knowledge of the time limit for lodgment rendered the situation exceptional.

Representative error and illness

Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (Acton SDP, Kaufman SDP, Williams C, 29 September 2011).

Length of time outside timeframe: 28 days

The applicant was successful at first instance in arguing that she could not file an application within the requisite time because she was suffering anxiety and depression-related illnesses. This was rejected on appeal.

Evidence showed that the applicant could engage in formal dealings relating to her dismissal because she was able to contact JobWatch and WorkSafe for assistance, write to the owner of the employer, meet with a solicitor to complete a WorkCover claim and provided a written summary of events.

Applicant acted on suggestion of Fair Work Ombudsman

McConnell v A & PM Fornataro T/A Tony’s Plumbing Service [2011] FWAFB 466 (Lawler VP, O’Callaghan SDP, Bissett C, 31 January 2011).

Length of time outside timeframe: 64 days

The applicant acted on the comments of the Fair Work Ombudsman that caused him to make an application for unfair dismissal. He later decided to seek an application under the general protections provisions on the advice of his representative.

At all times the matter was left to the judgment of the applicant himself to consider as to what manner of approach he sought to take in relation to the circumstances. Nothing in the action of the Fair Work Ombudsman was obligatory or directive in relation to the decision-making of the employee.

Pursuing another claim

Smith v Signature Security Group [2010] FWA 7803 (Williams C, 6 October 2010).

Length of time outside timeframe: 108 days

The applicant said that part of the delay in lodging the application was because of delays in appointments with the insurer regarding his worker’s compensation claim.

There was no reason why the applicant could not lodge his application immediately after his dismissal because it is a separate and independent claim that is not related to any workers’ compensation issues.

Concerns about future employment prospects

The Applicant v Origin Energy Ltd [2010] FWA 3181 (Hamberger SDP, 19 April 2010).

Length of time outside timeframe: 20 days

The Commission did not find the applicant’s fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job a convincing explanation for his delay.

Reason for delay

The Commission must consider the reason for the delay.[7]

The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[8]

Representative error

A late lodgment of an application due to representative error may be grounds for an extension of time.[9]

There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.[10]

The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.[11]

Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.[12]

Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.[13]

A representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgment.[14]

A representative error includes inactivity or failure to act promptly.[15]

Action taken to dispute the dismissal

Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.[16]

Case examples

Action taken to dispute the dismissal

Direct communication with employer

Wilson v Woolworths [2010] FWA 2480 (Richards SDP, 15 April 2010).

Length of time outside timeframe: 15 days

The applicant attempted to address matters by way of direct communication with the respondent after his employment had been terminated.

That is a matter which displays an intention to contest the application and to demonstrate to the respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the respondent was therefore on notice that the matters would be contested in the future.

Action NOT taken to dispute the dismissal

Dwyer v Verifact Pty Ltd T/A Verifact Security

Dwyer v Verifact Pty Ltd T/A Verifact Security [2013] FWC 2634 (Spencer C, 18 June 2013).

Length of time outside timeframe: Approx 1 year

The applicant provided a large amount of correspondence that he had made with various persons in the respondent, WorkCover, and others. However all of this correspondence took place well after the expiration of the time limit. The applicant did not attempt to dispute the termination of his employment within the statutory time limit.

Prejudice to the employer

Prejudice to the employer will go against granting an extension of time.[17] However the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’.[18]

A long delay gives rise ‘to a general presumption of prejudice’.[19]

The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[20]

Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application.

Case examples

Extension granted - no prejudice to the employer

Hartig v Form 2000 Sheetmetal Pty Ltd

Hartig v Form 2000 Sheetmetal Pty Ltd [2010] FWA 7836 (Ryan C, 8 October 2010).

Length of time outside timeframe: 45 days

The employer argued that the application raised fresh issues which were not relied on in an unfair dismissal application that was previously made and withdrawn.

The Commission could not discern any prejudice that may flow against the respondent merely because the grounds relied upon were different from the grounds relied upon in an unfair dismissal application.

Bradbury v Interact Australia (Victoria) Ltd

Bradbury v Interact Australia (Victoria) Ltd [2010] FWA 4829 (Cribb C, 8 July 2010).

Length of time outside timeframe: 18 days

The respondent highlighted it was a not-for-profit organisation reliant on government funding. The respondent also stated one of its key witnesses was on maternity leave whilst another resides in rural Victoria.

The Commission was not persuaded that the respondent was prejudiced by the delay over and above the usual prejudice that may accompany any grant of an extension of time.

Extension NOT granted - prejudice to the employer

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service [2011] FWA 1386 (Simpson C, 4 March 2011).

Permission to appeal refused [2011] FWAFB 8480 (Harrison SDP, Richards SDP, Smith C, 8 December 2011).

Length of time outside timeframe: 377 days

The employer argued prejudice due to the significant delay in filing the application. This argument was accepted.

Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley

Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley [2012] FWA 9043 (Spencer C, 26 October 2012).

Length of time outside timeframe: 142 days

The applicant took action from the time of refusal of wages and immediately upon the dismissal to pursue her entitlements. The applicant acted to have the Commission application filed as soon as she sought advice given her other actions for her entitlements were barred. It was argued that the respondent should not be put to the cost of defending yet another action simply because the applicant’s chosen course was stopped.

The Commission said that acceptance of this application, now aimed at disputing the dismissal, so far out of time would prejudice the employer.

Merits of the application

The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.[21]

A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[22]

When considering the merits, the Commission may consider whether the employee has a sufficient case.[23] The Commission cannot make any findings on contested matters without hearing evidence.[24] Evidence on the merits is rarely called at an extension of time hearing.[25] As a result of this the Commission ‘should not embark on a detailed consideration of the substantive case’.[26]

Case examples

Extension granted – merits of the matter

Lwin v Manpower Services (Australia) Pty Limited T/A Manpower Professional

Lwin v Manpower Services (Australia) Pty Limited T/A Manpower Professional [2011] FWA 1555 (Simpson C, 21 April 2011).

Length of time outside timeframe: 2 days

The applicant stated that he raised harassment claims in the week before his termination. The termination letter acknowledges that the applicant did make a complaint which was the subject of mediation in the week before his termination.

On that basis the Commission could not say that the application was completely without merit.

Extension NOT granted – merits of the matter

Stein v Bucyrus (Australia) Pty Ltd

Stein v Bucyrus (Australia) Pty Ltd [2010] FWA 5983 (Spencer C, 1 September 2010).

Length of time outside timeframe: 16 days

The letter of termination referred to an event where the applicant lost his temper and verbally abused a customer. It also referred to a second event where the applicant abused a customer or employee of the respondent. The applicant admitted that he did abuse the customer. The applicant’s misconduct would provide a valid reason for dismissal. However the applicant believed that the lodging of his worker’s compensation claim is what led to his dismissal.

The Commission was of the view that the applicant’s case was not a strong one and that the merits of his case did not weigh in favour of granting an extension of time.

Fairness as between the person and other persons in a similar position

This consideration may relate to fairness in matters of a similar kind that:

  • are currently before the Commission, or
  • have been decided in the past.[27]

The comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.365.[28]

Case examples

Extension granted – fairness as between applicant and other persons in a similar position

Representative error

Dean-Villalobos v QGC Limited T/A QGC [2013] FWC 1537 (Asbury C, 21 March 2013).

Length of time outside timeframe: 1 day

The applicant took steps to instruct her legal representatives to make an application and executed the necessary documents within the timeframe in which the application was required to be made. Persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable timeframe to allow them to be filed within time limits under the Fair Work Act should not be prejudiced because of the failure on the part of those legal representatives to comply.

It is not unfair to other persons in the same position as the applicant in this case to extend the time limit for filing the application.

Extension NOT granted – fairness as between applicant and other persons in a similar position

Application significantly out of time

Pereira v Department of Human Services [2012] FWA 3782 (Ryan C, 7 May 2012).

Length of time outside timeframe: Approx 30 years

The Commissioner considered that persons in a similar position would have had the benefit of advice at some point in the last 30 years to enable proper action to have been undertaken.

Given that there were some issues that related to the health of the applicant over that period of time, fairness would have suggested that persons in a like position would have sought advice through professional services of some description in a period which would have enabled an application, even if it was out of time, to be made much earlier than 30 years after the event.

References

Content

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388 [25]; citing R v Kelly [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13].

[2] ibid.

[3] ibid.

[4] ibid., [26].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 38.

[6] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [14].

[7] Fair Work Act s.366(2)(a).

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.

[9] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].

[10] ibid.

[11] ibid.

[12] ibid.

[13] ibid.

[14] ibid.

[15] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) [28].

[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[17] ibid.

[18] ibid.

[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

[20] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See also Jervis v Coffey Engineering Group Pty Limited), PR927201 (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003 [16].

[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[22] Haining v Deputy President Drake (1998) 87 FCR 248, 250.

[23] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

[24] ibid.

[25] ibid.

[26] ibid.

[27] Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29].

[28] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (unreported, Acton SDP, Kaufman SDP, Williams C, 29 September 2011) [26].

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 17 Feb 2022
Location on last update: https://www.fwc.gov.au/extension-time-lodging-application