Fair Work Commission General Protections Claims – Key Changes to Applications in 2024
In recent years, there have been significant amendments made to general protections claims, aiming to enhance workplace rights and provide better protection against unfair treatment. These changes have brought about important implications for both employees and employers. The rising number of general protections claim applications is becoming a significant concern for employers. It was reported in the Fair Work Commission (FWC) Annual Report 2023 that 4,964 applications for general protections involving dismissal and 996 ‘other’ general protections claims were submitted. In this blog, we will explore what Fair Work Commission general protections applications are, why they are important, and the amended process for filing a general protections’ claim.
Understanding the Scope and Significance of General Protections
General protections applications play a vital role in ensuring fair treatment and maintaining a healthy work environment. The implementation of general protections under the Fair Work Act 2009 (Cth) aims to protect workplace rights, preserve freedom of association, prevent workplace discrimination, and offer effective remedies for individuals who have faced discrimination, victimization, or unfair treatment. (Fair Work Ombudsman, 2024; Work Act 2009 Cth s.336)
Fair Work Commission general protections applications refer to legal actions taken by employees who believe their workplace rights have been violated. These applications are filed under the Fair Work Act 2009 in Australia and aim to protect employees from adverse actions taken by employers, such as unfair dismissal, discrimination, or retaliation. Employees have jurisdiction to submit a general protections’ claim against their employer, regardless of whether they are in a probationary period, fixed term contract or other employment arrangement.
General protections cover a wide range of employee rights, including:
- workplace rights
- the right to engage in industrial activities
- the right to be free from unlawful discrimination
- the right to be free from undue influence or pressure in negotiating individual arrangements.
As well as adverse action, general protections and workplace rights are protected from other unlawful actions including (but not limited to):
- undue influence or pressure
The Process for Filing a General Protections Application
There are two types of general protections applications that the Commission can deal with:
- a dismissal dispute, and
- a non-dismissal dispute
General protections dismissal applications are the most common. These make up 85% of the general protections’ applications the FWC receive.
To lodge a general protections claim application, employees must follow specific steps, including:
- The employee or individual who believes their workplace rights have been violated submits a written application to the appropriate authority, such as the FWC Australia using the amended forms.
- The application must comply with time limits for lodging the application (an application for a dismissal dispute must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect).
Once the lodgement has been made, the FWC will proceed to complete the following steps, including:
Notifying the Employer
- The FWC notifies the employer about the claim and provides them with relevant details. The employer has 7 days to respond to the claim.
- The FWC may attempt to facilitate a resolution through conciliation, where both parties discuss the issues and try to reach an agreement. This step aims to resolve the dispute without the need for formal proceedings.
- If conciliation fails or is not appropriate, the matter may proceed to a formal hearing. The FWC or relevant tribunal will schedule a hearing where both parties present their evidence and arguments.
Decisions and Remedies
- After considering the evidence and arguments, the FWC or tribunal will make a decision. If the claim is successful, remedies such as compensation, reinstatement, or other appropriate orders may be awarded.
Amendments to the General Protections Application Forms
The Fair Work Commission has published 3 amended forms and 1 new form relating to general protections applications. Amendments range from minor changes to improve usability and help with the Fair Work Commission’s case management processes, to the more substantial change of creating separate response forms for dismissal and non-dismissal applications.
- Revised Form F8 – General protections application involving dismissal – Form F8 (General Protections – Dismissal)
- Revised Form F8A – renamed ‘Response to a general protections application involving dismissal’, to respond to section 365 applications – Form F8A (Response to General Protections Application – Involving Dismissal)
- Revised Form F8C – General protections application not involving dismissal – Form F8C (General Protections – No Dismissal), and
- New Form F8D – ‘Response to a general protections application not involving dismissal’, to respond to section 372 applications – Form F8D (Response to General Protections Application – Not involving Dismissal)
Advice for Employers to Avoid a Fair Work Commission General Protections Claim
- Ensure that the reasons for dismissal are communicated clearly and transparently.
- Adhere to the appropriate procedure based on the type of dismissal, whether it is due to redundancy, performance issues, or misconduct.
- It is important to gather and organise evidence and documentation that substantiates the grounds for dismissal and effectively counters any allegations of breaching workplace rights.
We encourage you to call Bramwell Partners if you are considering performance managing or terminating an employee before any decisions are made.
Bramwell Partners is Your Trusted Name in Compliance
Our HR workplace compliance team is here to help ensure your business has the formal procedures in place to be compliant with all relevant Australian labour laws. To connect with a HR consultant from Bramwell Partners regarding general protections applications to the Fair Work Commission, get in touch via the online form or by calling (07) 3630 5695. Trust Bramwell Partners for all things workplace compliance.
Fair Work Act 2009 (Cth)
Fair Work Commission (2023). Annual Report: Access to Justice 2022-23. Pg.21. Fair Work Commission. Retrieved 09 January 2024. https://www.fwc.gov.au/documents/reporting/fwc-annual-report-2022-23.pdf
Fair Work Ombudsman (2024). Understand General Protections. Fair Work Ombudsman. Retrieved 09 January 2024. https://www.fwc.gov.au/job-loss-or-dismissal/dismissal-under-general-protections/about-general-protections/understand