General protections disputes involving dismissal

4,117

Applications lodged

4,358

Applications finalised

The general protections provisions under Part 3–1 of the Fair Work Act aim to protect workplace rights and freedom of association and to protect people from discrimination within the workplace.

An employee who believes that his or her employment has been terminated in breach of the provisions may, within 21 days of their dismissal taking effect, apply to the Commission under s.365 of the Fair Work Act.

The Commission is required to assist parties to resolve general protections disputes by conducting private conferences involving mediation or conciliation. In an approach similar to the process for unfair dismissal matters, when a general protections application involving dismissal is lodged, specialist staff conciliators work with the parties to try to reach agreement between the parties to resolve the dispute.

Staff conciliators conduct conferences under delegation from the President. The use of staff conciliators allows the Commission to assist parties to resolve their disputes without the need for costly court proceedings, while freeing up Members to undertake more complex work.

A Member must issue a certificate if all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

If the matter is not resolved at the Commission, the applicant may apply to either the Federal Court of Australia or the Federal Circuit Court of Australia to have the dispute determined. The Commission is obliged to advise the parties if it believes that such a court application would not have a reasonable prospect of success.

As an alternative, where the matter is not settled at conference and all parties consent, the Commission can determine the matter by issuing a decision that is binding on the parties (consent arbitration).

Performance overview

In 2017–18:

  • 4,117 general protections applications involving dismissal were lodged
  • 4,358 applications were finalised, of which 27 per cent were finalised with a certificate being issued
  • 18 applications were made for consent arbitration, following a certificate being issued.

The website received 62,480 page views regarding general protections disputes, 52,595 page views or downloads of the general protections benchbook, and 27,765 visits to the online eligibility quiz page for general protections.

Performance discussion

The number of general protections applications involving dismissal increased by 10 per cent, to 4,117 in 2017–18 from 3,729 in 2016–17, as shown in Table 5. This followed a 14 per cent increase in 2016–17.

The total number of matters finalised increased by 22 per cent, to 4,358 in 2017–18 from 3,564 in 2016–17, following a 16 per cent increase in 2016–17. More cases were finalised than lodged in 2017–18, with a clearance rate of 106 per cent.

The proportion of matters finalised by a Member issuing a certificate stating that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful also increased, to 27 per cent of cases, compared with 25 per cent in 2016–17. The remaining 73 per cent of cases finalised in 2017–18 were resolved through Commission processes.

A total of 2,524 matters were resolved at or after a conciliation conference, representing 58 per cent of all cases finalised, as shown in Table 6.

Of the 3,688 cases dealt with by the Commission in conference in 2017–18, the dispute was resolved in 68 per cent of cases, as shown in Table 7. This is consistent with 2016–17, when 69 per cent of matters were resolved in conference.

For applications resolved at conciliation in 2017–18, outcomes included:

  • monetary payments and non-monetary items, in 47 per cent of cases (1,185 applications).
  • monetary payments only, in 29 per cent (721)
  • non-monetary items only, in 22 per cent (546).

In the remaining matters the outcome was not disclosed to the Commission.

Where parties resolve a matter through conciliation, the terms of settlement can include other matters (such as payment of outstanding entitlements) in addition to any compensation paid in relation to the dismissal. Figures for monetary payment in Table D10 in Appendix D can include payments that do not arise under the Fair Work Act.

As in previous years, in 2017–18 only a very small number of parties to general protections disputes involving dismissal consented to the Commission deciding the matter by issuing a binding decision in consent arbitration. Of the 1,164 cases where the Commission issued a certificate stating that attempts to resolve the dispute had been, or were likely to be, unsuccessful, the parties agreed to consent arbitration in only 18 matters (2 per cent), as shown in Table D11 in Appendix D. This is consistent with results for 2016–17, when parties in 23 matters (3 per cent of a total of 905) agreed to consent arbitration.

Table 5: General protections disputes involving dismissal—applications lodged and finalised
  No. lodged No. finalised   No. of matters
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15 Manner finalised     2017–18 2016–17 2015–16 2014–15
FWA s.365—General protections disputes involving dismissal 4,117 3,729 3,270 3,382 4,358 3,564 3,060 3,475 Certificate issued 1,164 905 755 1,073
Without certificate issued 3,194 2,659 2,305 2,402

FWA = Fair Work Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

Table 6: General protections disputes involving dismissal—finalisation of matters
  No. of matters Percentage of matters
Outcome 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
Application dismissed 24 15 29 30 <1 <1 <1 <1
Dispute not resolved: certificate issued 1,164 905 755 1,074 27 25 25 31
Dispute resolved at conciliation 2,524 2,012 1,631 1,598 58 56 53 46
Extension of time (to apply) refused 60 98 99 56 1 3 3 2
Withdrawn after conciliation 72 71 83 126 2 2 3 4
Withdrawn before a conference 493 433 454 585 11 12 15 17
Withdrawn before or after a conference or hearing to deal with extension of time 21 30 9 6 <1 1 <1 <1
Total 4,358 3,564 3,060 3,475 100 100 100 100

 

Table 7: General protections disputes involving dismissal—conciliation outcomes
  No. of matters
Outcome 2017–18 2016–17 2015–16 2014–15
Matters settled 2,524 2,012 1,631 1,599
Dispute resolved: monetary 721 646 576 567
Dispute resolved: monetary and non-monetary items 1,185 894 614 484
Dispute resolved: non-monetary items only 546 430 344 214
Dispute resolved: details unknown 72 42 97 334
Matters not settled 1,164 905 755 1,074
Total 3,688 2,917 2,386 2,673

Timeliness

The median time from lodgment of a general protections application involving dismissal to a conciliation conference was 40 days in 2017–18, as shown in Table 8. This improvement of 31 per cent in performance, from a median of 58 days in 2016–17, largely reflects the realignment of resourcing of both the administrative support function and specialist staff conciliators.

There was a similar improvement of 23 per cent in the timeliness of the finalisation of general protections disputes involving dismissal, with cases finalised in a median of 48 days in 2017–18, compared with a median of 62 days in 2016–17.

Table 8: General protections disputes involving dismissal—timeliness
  Days elapsed
  In 50% of matters In 90% of matters
Process 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.365—General protections disputes involving dismissal—lodgment to conciliation 40 58 45 31 61 75 68 62
FWA s.365—General protections disputes involving dismissal—lodgment to finalisation 48 62 50 37 97 103 103 97

FWA = Fair Work Act