General protections disputes not involving dismissal

The provisions under Part 3–1 of the Fair Work Act to protect workplace rights and freedom of association and to protect people from workplace discrimination apply to ‘adverse action’ other than dismissal.

An employee who believes that he or she has been subjected to adverse action for a prohibited reason may make a general protections application to the Commission under s.372 of the Fair Work Act. Applications are made under s.372 where there is an ongoing employment relationship.

The Commission must conduct a conference with the employer and employee to attempt to resolve the dispute, but only if they both agree to participate. Conciliation conferences are conducted by Commission Members.

If a general protections dispute not involving dismissal is not resolved by 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 must advise the parties if it believes that such a court application would not have a reasonable prospect of success.

Performance overview

In 2017–18:

  • 902 general protections applications not involving dismissal were lodged
  • 857 applications were finalised, of which 39 per cent were resolved through the Commission’s conciliation process.

Performance discussion

The number of general protections applications not involving dismissal increased by 9 per cent, to 902 in 2017–18 from 828 in 2016–17. The 2017–18 total was also higher than the totals in 2014–15 and 2015–16, as shown in Table 9.

Of the 857 applications finalised in 2017–18, 23 per cent were withdrawn or were invalidly made, as set out in Table 10. In a further 11 per cent of cases, the employer did not agree to participate in a Commission conference.

Of the remaining 564 matters, which were dealt with by a Member in conference, the dispute was resolved through Commission procedures in 60 per cent of cases. This is consistent with 2016–17, when 59 per cent of matters (312) that were dealt with by a Member in conference were resolved.

Table 9: General protections disputes not involving dismissal—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.372—General protections disputes not involving dismissal 902 828 859 879 857 787 842 837

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 10: General protections disputes not 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 withdrawn 196 191 221 250 23 24 26 30
Invalid application 4 3 8 7 <1 <1 1 1
Employer declined to participate in a conference 93 68 73 69 11 9 9 8
Finalised by a Member—dispute not resolved 228 213 231 203 27 27 27 24
Finalised by a Member—dispute resolved 336 312 309 308 39 40 37 37
Total 857 787 842 837 100 100 100 100

Timeliness

In 2017–18, the median time elapsed from lodgment of an application to the first conference with the employer and employee in general protections disputes not involving dismissal was 26 days, with 90 per cent of first conferences held within 50 days. This was a slight decrease in performance from the previous reporting period, as shown in Table 11.

General protections disputes not involving dismissal were finalised (including by being withdrawn or the employer declining to participate in a conference) within a median of 30 days from lodgment in 2017–18, one day longer than in 2016–17. While it took longer for 90 per cent of matters to be finalised in 2017–18 than in 2016–17, timeliness in 2017–18 was consistent with performance in 2015–16 and an improvement on 2014–15.

Table 11: General protections disputes not 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.372—General protections disputes not involving dismissal—lodgment to first conference 26 23 27 29 50 48 54 55
FWA s.372—General protections disputes not involving dismissal—lodgment to finalisation 30 29 34 38 108 94 107 120

FWA = Fair Work Act

In focus—improving access to legal services

Since 2012, the Commission has implemented various initiatives to promote fairness and improve access to justice, particularly for those who do not have legal representation. Building on this, the Commission is combining initiatives to create one national program—the Workplace Advice Service.

Existing initiatives

The Commission’s activities to improve access to justice include:

  • the Workplace Advice Clinics and the Pro Bono Program, which have together provided free legal services to hundreds of people involved in unfair dismissal matters who may not otherwise have been able to obtain such assistance—after successful pilot projects, both programs were made permanent features of our access to justice initiatives
  • the Justice Connect General Protections Referral Pilot Program, which has made free legal advice about general protections matters available to eligible self-represented people in New South Wales and the Australian Capital Territory
  • the Outside Sitting Hours pilot, in which the Commission has held hearings and conferences about unfair dismissal matters outside standard business hours, to provide greater flexibility, particularly for small business.

These programs have consistently received positive feedback and are highly valued, providing valued legal assistance to employees and employers who would otherwise not have access to such assistance.

Workplace Advice Service

The Commission’s new program, the Workplace Advice Service, has the potential to reach thousands of self-represented individuals and small business owners who, for a variety of reason s, have been unable to access legal services.

The service will be delivered in partnership with leading community legal centres, legal aid bodies, law firms and legal practitioners across Australia. It will commence in Sydney and Melbourne, and expand across the country throughout 2018 and 2019.

The Workplace Advice Service will provide self-represented individuals and small business employers with up to one hour of free legal advice and assistance from a qualified practitioner in relation to unfair dismissal, general protections and anti-bullying matters. Advice will be available early in the process, before an application is lodged, and prior to a conciliation in unfair dismissal, general protections and anti-bullying matters. On occasions, practitioners may decide to provide further services at their discretion, including continuing support and representation at hearings.