Coronavirus (COVID-19) & general protections cases
The current coronavirus (COVID-19) situation is affecting how we deal with general protections dismissal cases.
You can still make an application during this time.
You can:
Australia Post is experiencing delays because of COVID-19. If you can’t lodge electronically and you need to post your application, make sure you allow extra time for postal services.
The 21 day time limit for lodgment still applies.
If you’re having trouble lodging an application, please call us on 1300 799 675.
If you are involved in a general protections case that’s already underway, it will continue to proceed.
We are trying as hard as we can to help resolve cases as quickly as possible, but our operations have been affected along with all Australian workplaces. Because of this, you may find that your case takes longer than normal to process.
Where possible, we will deal with your case entirely by phone or videoconference. This means that you will not have to come in to the Commission.
New workplace rights
New workplace rights have been introduced in relation to the JobKeeper scheme and the COVIDSafe app. These workplace rights are protected under the general protections provisions of the Fair Work Act 2009.
Introduction
A person has been dismissed from their employment when:
- their employment has been terminated at the initiative of the employer, or
- they have resigned their employment but the resignation was forced by something the employer did.
If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.
To understand the key differences between these applications, and to decide whether one of these applications may be appropriate for you, see the Termination of employment page.
If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws:
Do I need a lawyer?
If you want to lodge a case with us, you will need to complete an application. It is not necessary for you to have anyone else act on your behalf when you come to the Commission, and many people choose to represent themselves. However, we understand that seeking help, including legal advice, can reduce complexity and confusion. If you are thinking about asking someone to help you with you case, please read our Do I need to be represented and Complaints about lawyers and paid agents pages first.
Workplace Advice Service
The Commission has launched a Workplace Advice Service to provide access to free legal assistance to eligible persons, including small business employers seeking employment law advice.
Find out more by visiting our Where to get legal advice page.
What are general protections?
The general protections have been introduced to:
- protect workplace rights
- protect freedom of association
- provide protection from workplace discrimination, and
- provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.
A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
- dismissing them
- not giving them their legal entitlements
- changing their job to their disadvantage
- treating them differently than others
- not hiring them
- offering them different (and unfair) terms and conditions, compared to other employees.
General protections benchbook
The Fair Work Commission has created a General protections benchbook which contains detailed information and links to cases setting out eligibility and the Commission process, including information on objections.
Workplace rights
Workplace rights include:
- receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
- commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action
- being able to make a complaint or inquiry about your employment.
Industrial activities
A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.
Industrial activities cover activities associated with freedom of association including:
- becoming or not becoming a member of industrial associations (e.g. unions and employer associations)
- representing or advancing the views, claims or interests of an industrial association
- taking part in protected industrial action, or
- refusing to take part in industrial action.
Protection from discrimination
An employer also must not take adverse action against an employee because of an attribute of that person, including their:
- race
- colour
- sex
- sexual orientation
- age
- physical or mental disability
- marital status
- family or carer's responsibilities
- pregnancy
- religion
- political opinion
- national extraction
- social origin.
Sham contracting arrangements
An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.
Who do general protections laws apply to?
General protections laws apply to:
- employees and prospective employees
- employers and prospective employers
- independent contractors and prospective independent contractors
- a person who has entered into or who has proposed to enter into a contract for services with an independent contractor
- an industrial association, including an officer or member of an industrial association.
General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the ACT or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a territory or a Commonwealth place.
A constitutionally covered entity can be any of the following:
- a constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name
- the Commonwealth (ie the federal government and its departments)
- a Commonwealth authority (such as the Fair Work Commission)
- a body corporate incorporated in a territory, or
- an organisation.
Am I eligible?
Complete the General protections eligibility quiz to find out if you may be eligible for a remedy under the general protections provisions for a workplace dismissal.
If you've received notice from the Fair Work Commission about a general protections application relating to dismissal (ending employment), it means:
- Someone believes that you or your company ended their employment unfairly
- because they tried to, or planned to, exercise a workplace right (eg asking about their pay or working conditions), or
- for discriminatory reasons (eg based on their race, sexual orientation, age, religion, etc), or
- because they exercised, or tried to exercise, their freedom of association (eg right to join a union or to take part in protected industrial action).
- By applying to the Commission they have started a legal action against you.
- No decision has been made, or result determined yet.
- You have the right to respond to the application using the correct form/s, including outlining why you may object to the application. The Commission needs this information to progress (or, if appropriate, close) the application.
- You or your company will then be given a time and date for a conference – where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.
- If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.
- If one or both sides do NOT agree that the Commission should make a decision, then the applicant may apply to the Federal Circuit Court or the Federal Court for a final decision.
If you think your employment ended unfairly (you were dismissed or your employment was terminated unfairly):
- because you tried to, or planned to, exercise a workplace right (eg asking about your pay or working conditions), or
- for discriminatory reasons (eg based on race, sexual orientation, age, religion, etc), or
- because you exercised, or tried to exercise, your freedom of association (eg right to join a union or to take part in protected industrial action).
- You can start a legal action against your employer by applying to the Fair Work Commission using the correct form and paying a fee.
- The Commission will send a copy of your application to your former employer, and they will be given the chance to respond to your application.
- You will then be given a time and date for a conference – this is where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.
- If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.
- If one or both sides do NOT agree that the Commission should make a decision, then you may apply to the Federal Circuit Court or the Federal Court for a final decision.