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 they have 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 2018–19:

• 1,005 general protections applications not involving dismissal were lodged
• 890 applications were finalised, of which 31 per cent were resolved through conciliation.

Performance discussion

The number of general protections applications not involving dismissal increased by 11 per cent, to 1,005 in 2018–19 from 902 in 2017–18. The total number of applications lodged in 2018–19 is the highest since 2015–16, as shown in Table 9.

Of the 890 applications that were finalised in 2018–19, 27 per cent were withdrawn or were invalidly made, as shown in Table 10. In a further 12 per cent of cases, the employer did not agree to participate in a Commission conference.

Of the remaining 540 matters, which were dealt with by a Member in conference, the dispute was resolved through Commission procedures in 52 per cent (279) of cases. This is less than in
2017–18, when 60 per cent of matters (336) that were dealt with by a Member in conference were resolved.

Table 9: General protections disputes not involving dismissal –applications lodged and finalised

Table 10: General protections disputes not involving dismissal – finalisation of matters

Timeliness

In 2018–19, 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 29 days, with 90 per cent of first conferences held within 61 days. This was a 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) in a median of 34 days from lodgment in 2018–19, four days longer than in 2017–18. It took one day less for 90 per cent of matters to be finalised in 2018–19 than in 2017–18.

Table 11: General protections disputes not involving dismissal – timeliness

In focus – improving access to legal services

‘It should never be forgotten that tribunals exist for users and not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases.’

Sir Andrew Legatt, Tribunals for Users – One System, One Service, Report of the Review of Tribunals (2001)

One of the key initiatives in What’s Next is to increase access to legal advice by employees and employers who are unfamiliar with the Commission and the Fair Work Act.

The Workplace Advice Service provides unrepresented individuals and small business employers with up to one hour of free legal advice and assistance in relation to dismissal, general protections and workplace bullying issues or enquiries. Assistance may be available during a matter and prior to lodgment of an application.

Officially commencing in Victoria and New South Wales on 1 August 2018, the service expanded to Western Australia on 1 November 2018 and to South Australia and Queensland on 1 February 2019. We are in the preliminary planning stages for further expansion of the service to cover all capital cities and some regional locations.

The Commission has developed partnerships with approximately 65 organisations, including community legal centres, legal aid bodies, law firms and legal practitioners across Australia. Without these partnerships, and the assistance they provide, the service could not exist.

During 2018–19, approximately 1,081 consultations took place across five states. We regularly receive feedback demonstrating the positive impact of legal advice, support and guidance during what can be a challenging experience, particularly for those who are unrepresented:

‘Irrespective of the level of success with my matter, I am grateful to have been able to resolve it with the Fair Work Commission’s involvement. The experience has restored my confidence in external bodies like yours being proven to be successful in helping give people a voice and opportunity to pursue their rights.’

Workplace Advice Service Client, Victoria

’To seek legal assistance at this specialist level, is way out of anything that I would be able to afford, and to be provided such a service in an efficient, timely and supportive manner is nothing short of outstanding.

The information I received … was thorough and helped me devise a strategy moving forward that would do the best to protect both my income and my mental health. It certainly provided great relief for what has been a very stressful situation, though I understand I have some way to go – at least now I have an informed plan.

I just wanted to send you a note of appreciation for the difference Fair Work and your team have been able to make to my life. I am truly grateful.

Thank you.’

Workplace Advice Service Client, New South Wales

The recent funding announcement of $1.4 million over four years will help the Commission achieve its goal of expanding the service nationally.