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 their 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 2018–19:

• 4,508 general protections applications involving dismissal were lodged
• 4,330 applications were finalised, of which 26 per cent were finalised with a certificate being issued
• 14 applications were made for consent arbitration, following a certificate being issued.

The website received 77,003 page views regarding general protections disputes, 186,416 page views or downloads of the general protections benchbook, and 41,835 visits to the online eligibility quiz page for general protections.

Performance discussion

The number of general protections applications involving dismissal increased by 9 per cent, to 4,508 in 2018–19 from 4,117 in 2017–18, as shown in Table 5. This followed a 10 per cent increase in 2017–18.

The total number of matters finalised in 2018–19 was similar to the previous reporting period, with 28 fewer applications finalised than in 2017–18. This follows a 22 per cent increase in finalisations in 2017–18 and a 16 per cent increase in 2016–17.

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 remained stable at 26 per cent of cases, compared with 27 per cent in 2017–18. The remaining 74 per cent of cases finalised in 2018–19 were resolved through Commission processes.

A total of 2,502 matters were resolved at or after a conciliation conference, representing 58 per cent of all cases finalised, as shown in Table 6.

Of the 3,630 cases dealt with by the Commission in conference in 2018–19, the dispute was resolved in 69 per cent of cases, as shown in Table 7. This is consistent with 2017–18, when 68 per cent of matters were resolved in conference.

For applications resolved at conciliation in 2018–19, outcomes included:

• monetary payments and non-monetary items, in 50 per cent of cases (1,240 applications)
• monetary payments only, in 26 per cent (639)
• non-monetary items only, in 18 per cent (462).

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 2018–19 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 1,128 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 14 matters (1 per cent), as shown in Table D11 in Appendix D. This is consistent with results for 2017–18, when parties in 18 matters (2 per cent of a total of 1,164) agreed to consent arbitration.

Table 5: General protections disputes involving dismissal – applications

Table 6: General protections disputes involving dismissal – finalisation

Table 7: General protections disputes involving dismissal – conciliation outcomes

Case study – improving user experience through enhanced case management

Originating as part of the President’s What’s Next initiatives, enhanced case management (ECM) began in 2018, with the original focus of improving engagement with small businesses responding to unfair dismissal and general protections cases. Where possible, a team member contacted small businesses prior to listing applications for telephone conciliation or a staff conference.

The Commission trialled different approaches to case management for unfair dismissal and general protection matters in late 2018 and early 2019. Primarily, case managers sought to explain the Commission’s processes to respondents that had been identified as representing a small business before sending out any material. The goal was to help them to develop a better understanding of the system and the Commission’s processes, to enable them to actively engage in, and build trust in, the process. In part, this is an acknowledgment that many employers may have little or no experience with unfair dismissal and general protections matters, and this is potentially most true for the small business community.

In February and March 2019, the Commission broadened ECM’s focus to include some self-represented applicants in unfair dismissal and general protections matters.

Timeliness

The median time from lodgment of a general protections application involving dismissal to a conciliation conference was 35 days in 2018–19, as shown in Table 8. This is an improvement of 13 per cent from a median of 40 days in 2017–18 and follows an improvement of 31 per cent in performance from 2016–17 (58 days) to 2017–18. This largely reflects the realignment of resourcing of both the administrative support function and specialist staff conciliators.

There was an improvement of 10 per cent in the timeliness of the finalisation of general protections disputes involving dismissal, with cases finalised in a median of 43 days in 2018–19, compared with a median of 48 days in 2017–18.

Table 8: General protections disputes involving dismissal – timeliness