How to fill in a Fair Work Commission General Protections Application

Hi, welcome to Tips Tuesday. My name is Melanie Thorley and I’m the principal solicitor at MJT Law. Now today we’re going to look at general protections disputes. To do that we’re going to go to the Fair Work Commission. I’ve started with a Google page, I’m just going to say Fair Work Commission here, press enter and it’s normally the first thing that comes up, certainly on my screen. I’m going to click that and then I’m going to get to the general protection’s website. Brilliant.

Now the problem is how you navigate this website. It’s actually harder than you think. We’re just going to make it easy on ourselves and type in “general protections,” and press enter. We’re going to click on the first thing that comes up and this is the general protection’s webpage itself. This is a lot of information on it and because you’re being dismissed for a reason that you believe to be a general protection, there is quite a lot of things that you have to think about. My recommendation is you go to the general protection’s benchmark book and then you click it again and then you get the PDF version. I’ve downloaded that already. Here it is.

You can see I’m at page 11. If I just scroll up here you can see that it’s the benchmark book itself. Oops, gone too far. Okay, I’m going to go back to 11 because this is where it gives me a flow chart as to what happens in a dismissal dispute with regards to a general protection. You can see here that there’s a step through process. You file the application, it’s listed for some sort of conference with both parties, get the chance to file the submissions, then there’s a telephone conference or conciliation with a conciliator and either the matter is settled or it’s not settled. That can be a bit of a process as you can see. It’s not a particularly good … Let’s see if I can make that bigger. Of course you can download this yourself.

If the matter’s not settled it could go to the deputy president to have another go at it. If it continues to be not settled then you get a certificate of failed conciliation and then you have to decide within 14 days with the party’s consent to go through the commission or you have to make an application with the federal circuit court for the matter to be determined. That’s for a dismissal dispute. There is a non dismissal dispute process and it’s much faster as you can see where it’s a lot easier. You’re not being dismissed so it’s not about you not working, this is about trying to get both parties to a situation where you can both carry on working and being productive. Again, you file the application as you can see up here and it’s listed for a conference. Now the trouble here is the parties can decide whether it’s going to go to conference or not. If the matter doesn’t go to conference then it becomes a bit more tricky, if the matter does go to conference, and of course you’ve got the step through process here, either the matter is settled or not settled.

One of the big things that you need to think about is how you’re protected and what you’re protected by. I’m just going to scroll down for a second. Okay, you can see I’ve scrolled down to page 28. This is where the role of the general protections comes about. General protections has been introduced to protect workplace rights, to protect freedom association, to provide protection from workplace discrimination, and to give effective relief for those that have been discriminated against or victimized, et cetera. It works because of the provision 340 in the act and that states that a person must not take adverse action against another person because there’s a workplace right or they’ve not exercised a workplace right. This is the protection one. What you’ve got to think about is that the link, as you can see here, they’re asking for the link between the adverse action and the protection, because of the word “because” it means that you need to establish that the action was taken because of this protected reason.

At this point I’m going to assume that the action is a protected action and the … Sorry, the workplace right was protective workplace right and you have had adverse action taken against you because you exercised that workplace right. The next thing we do is we need to download the forms. I’m just going to come back over here and go back to this original page that we went to after we typed in “general protections” at the top here. We’re going to scroll all the way down and then here you’re going to see there’s a form 8 application and a form C general protections application not involving dismissal. The form 8 is a dismissal one, the form 8C is the non dismissal one. I’m just going to pause it and bring both those forms up. Okay, I have both forms here to give a side by side. This is so I can show you how to fill in the forms. The forms are very very similar. We’re going to stick with the forms and I’m just going to talk you through how to fill this in.

First of all, it obviously tells you who can use this form and this is the not involving dismissal form and this is the involving dismissal form. This form is going to talk about when you were dismissed, have you made the application on time, and this one doesn’t have that bit because of course you’re still actually there. Okay, we’re going to keep going down and there’s information about how to lodge in and, of course, you’ve got that 21 days to lodge it after the dismissal took place but in this one you just need to lodge it. Okay. Now we talked a little bit about the process and it’s slightly different for the dismissal one over the non dismissal one and you can go back to that general protection guide and have a look at that information and obviously more of the other information that’s provided in that document.

This is here to say that the commission is not going to provide you any legal advice whatsoever and that can be quite frustrating but of course, you can just call me and ask a question or two. There’s a bit of information about what the terms mean and we’re into the form. The form is extremely similar at this point, although this is an application under 372 and this is an application under 365. That’s because 372 is the not involving dismissal and the 365 is the involving dismissal. Just make sure when you’re filling in the application you fill in the right form. Where you dismissed or are you looking at getting some [inaudible 00:07:49] with an issue that you’ve got? You’re going to be the applicant so this is where you’d fill your information in. Now you’re probably not an industrial organization so we’re going to leave that. People normally say that they want email but if you don’t have access to email than the post is just fine.

If you need an interpreter you need to put that in there. There’s going to be a discussion about that a bit later. Then it’s about any special assistance. It’s also asking if you’ve got a representative. Now that’s someone who’s normally a union representative, a friend or family member who will be speaking on your behalf or a lawyer. Now you can just click yes and then, of course, you provide their information here. If it’s a lawyer than the likelihood is they’re going to be filling in this form on your behalf so all that information will be done for you. There’s a little bit more information about the applicant in the non dismissal form. It asks if you’re an employee, a prospective employee, et cetera, et cetera. I’m going to assume on both forms that you’re an employee working and you have had a problem at your workplace with discrimination for instance or you’ve exercised the workplace right and now they’re treating you differently.

The next part is the respondent. That’s the party with which you want to make the application against. That’s normally your boss or your boss’s business shall I say. You put the legal name of the business. Some of this information is likely found on your payslip so get that out and take a look at it. Others you just fill in the best you can and then the respondent themselves will probably fill in the rest when they get a chance to respond. You put the information in and then on this form it goes straight to the general protections dismissal, on this form it talks a little bit about background. We’re going to stay with the application involving dismissal at the moment and that’s because this part here, the background, comes later. It’s going to ask you on what date you were dismissed so you just put the date down that you think that you were dismissed. Normally that’s the date that you’ve been terminated and told to go home, other times it might be something different and then it asks on what date your employment commenced. It’s the same on here, what date did you employment commence?

Also, in this form here it asks you what the reasons were for the respondent for dismissing you. Normally they’ve got some sort of letter of dismissal or separation certificate and you put the information that’s written on that form in there. This is not about your views, this is about why the respondent or why the business that you’re working with terminated you. This part here is about whether you’ve made the application on time, if it’s not on time it’s going to be very difficult for you to get this application going because it’s very unlikely you’ll get an extension of time. Okay, now we’re back at the part of the form where it’s all very similar. Have you ever made an application about this dispute somewhere else? Now remember that you can’t have 2 applications going at the same time and that, if I just bring up the form here, this general protections benchmark book will give you some information about that. We’re just going to click this down.

Remedy, now this is quite important to you because you need to figure out what is it that you want. If you haven’t been dismissed you need to think about what is it that you want to achieve. Normally it’s to get back to work, working as functional person of that business without the stress of having this thing looming over you, like if you’re being discriminated against because you’re pregnant and they’ve put you on duties that are inappropriate and not because you’re pregnant but because … Not because you are pregnant and say, can’t lift heavy boxes, but because actually they just don’t want to look at you anymore. Then you’ll be looking for a remedy that suits that situation. If you are being treated differently because you are sick and they want to reduce your pay or reduce your hours because you are unwell then you might want to some [inaudible 00:12:36] about that. Now the remedies for a dismissal dispute can be a number of things but most people either want their jobs back or they want some sort of compensation. You would outline there what that might look like.

Of course that book, that guide, that we had here, the benchmark general protections book is going to be able to give you some help on that. There is a section here, okay I’ve got to page 24 and it talks about the remedies and possible outcomes of a matter before the commission and that can include an order for reinstatement or compensation. This booklet was going to be able to help you there. Okay, back to the form. Now we’re talking about what’s actually going on. What is it that you have a dispute about, what is the problem with … We talk about a contravention based on the act itself. You need to describe what’s been going on, why has the respondent, why do you think the respondent’s behaved in this way and what were the actions that lead you to make this application? That can be as long or short as necessary. If you’re going to write this out on the document then, of course, you need to add additional pages. If you’re going to write it in this form, for instance, if I just write rubbish you see that the form is lengthening as I’m going.

Okay, the next section is about which sections of the fair work act you allege the respondent contravened. Okay, when they took or threatened action against you. The benchmark book is going to really help you here. My suggestion is you go back to it and try and look at the facts of what’s going on and try to match them up with a protection or a workplace right. It could be a workplace right as in there is something protected or you may be coerced in to doing something. There could be an industrial activity going on or you might feel that you’ve been discriminated against. If you do feel that you’ve been discriminated against, you need to go back to section 351, subsection one and actually state what that discrimination could be. I’m just going to bring that section up quickly so you can have a look at it. Okay, I’ve got the section of the fair work act up, section 351. It’s asking you to set to what attribute in section 351, subsection 1. If we go into this we can see that this is section 351, this is subsection 1 here so you need to look at this list and decide what is it that you’ve been discriminated against. Is it your race, color, sex, sexual orientation, physical or mental disability, or are you pregnant? Is there a religious reason? Political opinion? You need to actually identify what is it that you’ve been discriminated against.

Okay. Keep going down the form. You can see that there are a number and because there is a non … If you’re doing the non dismissal one then you’ve got a few more choices here. Just make sure that you are clicking the right, ticking the right box. I normally just put, if I just show you now, I normally just put a big X in the one that I want and that normally is enough for me but you can highlight that any way you like. Okay, moving down now you have to explain how the action in this part here, you have to explain how that action has contravened the sections that you identified in here. If we may step through the process, first of all you’ve got to state what the actions are that lead you to make the application, what’s going on?

An example of this is you are a person who has several children at home and you have been looking after them and you find that you are now pregnant and there’s some sort of discrimination because of it. Perhaps they don’t want to give you the hours with which they want to give you or you feel that or you could show that you have been withheld pay parity because of your pregnancy or something like that, then that would be the actions. Then you would complain or you would write here what that right was. Was it discrimination? Then you would put the tick here and then you state pregnancy. Oops, I’ve spelled that wrong. Okay, that’s what you would do. At this point here, that’s what you would have to do, you would have to step through. How did the actions here create this problem here and you’ve got to sort of step people through that process. That can take some time or there can be quite a lot of information there or you just do the best you can and you kind of muddle through it and that’s the way it is.

Okay, now we’re up to the last part of the form. Brilliant, you’ve managed to get through it and hopefully you understand most of it, certainly with this book you’re going to have a lot more luck in filling in this form. Okay, the next part is disclosure. You don’t have to consent. You don’t have to consent to the research so you can leave that blank if you like but you do have to sign the form. It does state that you can just type your name if you don’t have an electronic signature so you can just put your name there and then put your name again and put the date. Of course you’re going to have to put the full date in. Then your capacity. You’re the applicant so that’s what you would write there.

Now we have to scroll down to the application fee so if I just pause this and go back to the website, it states that the current fee is 69 dollars 80. You would go back to your form and you would go through the payment options, you can have a waiver. There is a possibility that you can get that fee reduced but you have to have a conversation with the Fair Work Commission or you can attach a check, you can pay by cash but you would have to go and do that in person or you can pay by credit card. There are some options there. Of course if you are the payer then that person needs to complete this information here as well. Then you send the form in. The website does tell you how to do that if you’ve got some problems filing that form or sending it through to the commission then you just contact them and ask them the question, “How do you file this application?”

Okay and that’s it. Hope this has been helpful to you. If you have any questions please give me a call. You can find me at my website. This is my website here and if you scroll all the way down to the bottom you can get my contact details or you can just click on the contact tab and go straight to my contact page. There you can call me or you can do the online email. That’s that. I hope you enjoyed this. I hope you found it helpful and keep watching, thanks.