Resource ● Last updated 31 October 2024 ● 11 min read
How to make a general protections claim
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What is this resource?
This resource provides some information on general protections claims in the Federal Circuit and Family Court and Federal Court.
Does the general protections regime apply to me?
Most Australian workers are covered by the general protections provisions. You are covered by the general protections regime if you:
- work for the Commonwealth or a Commonwealth authority;
- work for a constitutional corporation (a financial or trading corporation formed in Australia or a foreign corporation that does business in Australia);
- work in Victoria, the Australian Capital Territory or the Northern Territory (except if you are a law enforcement officer or an executive in the public sector in Victoria, or a member of the Police Force in the Northern Territory);
- work in the private sector in New South Wales, Queensland or South Australia; or
- work in the private sector or local government sector in Tasmania.
For more information, see the Fair Work Commission page on national workplace relations system coverage.
What are general protections?
General protections are fundamental rights in the workplace that are protected by law. The general protections laws are in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).
The FW Act prohibits employers taking adverse action (for example terminating, demoting, warning or reducing the entitlements of an employee) against employees because of their:
- workplace rights;
- industrial activities; or
- race, colour, physical or mental ability, age, sex, sexual preference, gender identity or intersex status, experience of family violence, family or caring responsibilities, pregnancy or breastfeeding, marital status, religion, political opinion, national extraction or social origin (workplace discrimination).
Some of the protections also apply to prospective employees (for example, people participating in a job interview), independent contractors and union members and officers.
For more information on general protections, see the following resources:
Important note
Please note that you cannot make an unfair dismissal claim and a general protections dismissal claim at the same time.
Read about the differences between these two claims on the Law Assist website.
When can I take my general protections claim to court?
If you want an interim injunction (an order that another party do or stop doing something until your claim is finalised) you can take your claim to court straight away.
In other cases, whether or not you can take your claim straight to court or whether you need to start your claim at the Fair Work Commission (the FWC) depends on whether or not you have been dismissed from work.
Time limits – applying to the Fair Work Commission (FWC)
- General protections: you must lodge your general protections dismissal application within 21 calendar days after the dismissal takes effect.
- Other claims: if you have not been dismissed, you can lodge your other claims application with the FWC up to six years from the day the adverse action happened.
If you have been dismissed from work, you need to start your claim at the FWC. You must pay a FWC application fee unless you can demonstrate serious financial hardship. See the FWC’s website for guidance and check their Fees and costs page for the current application fee.
The FWC will try to resolve your dispute by mediation, conciliation, making a recommendation or giving an opinion. Any conference must be conducted in private, and they are generally confidential. See the FWC website for further guidance on the conference process.
What if the dispute is not resolved at the Fair Work Commission?
If the FWC’s attempts to resolve your dispute are unsuccessful, they will issue you a certificate. The FWC must let you know at this stage if you they think you do not have a reasonable chance of success.
Once the FWC has issued a certificate:
- Both parties agree to arbitration: you can notify the FWC that the parties agree to resolve the dispute by arbitration (see the FWC’s website for further guidance on consent arbitration; or
- You or the other party do not agree to arbitration: you can make an application to court.
Notification time limit: you must notify consent arbitration or make an application to court within 14 days after FWC has issued you a certificate.
If your claim involves a kind of adverse action against you that is not dismissal (for example, if an employer has refused to hire you, you have been demoted, or you have been denied a pay increase) then you can choose to:
- make an application to the FWC or
- make an application to court.
Application to the FWC
If you make an application to the FWC and the other party agrees to participate, the FWC will try to resolve your dispute by mediation, conciliation, making a recommendation or expressing an opinion. Any conference must be conducted in private. See the FWC website for further guidance on the conference process.
The FWC must let you know at this stage if you they think you do not have a reasonable prospect of success.
You can still make an application to court if the FWC is unable to resolve your dispute.
Making a court application
You can also lodge your application at the Federal Circuit and Family Court or the Federal Court.
In non-dismissal matters, you do not need a certificate from the FWC before making an application to court.
Time Limits – applying to court
- Other claims: if you have not been dismissed, you can lodge your other claim application with the Federal Circuit and Family Court or the Federal Court up to six years from the day the adverse action happened.
Which court should I apply to?
You can apply to either the Federal Circuit and Family Court (FCFCoA) or the Federal Court (FCA).
You should consider starting your case in the Federal Circuit and Family Court because some fees are cheaper, and you may not have to wait as long before your matter is heard by a judge.
Federal Circuit and Family Court: Current fees are on the General federal law fees page.
Federal Court: Current fees are on the Court Fees Payable page.
You may not have to pay the filing fee if you:
- hold a government concession card;
- are suffering financial hardship; or
- are under the age of 18.
More information about exemptions is available on:
- Federal Circuit and Family Court: Application for exemption from paying Court fees – general (general federal law) has information about fee exemptions if you have a Health Care Card, Legal Aid or legal assistance provider letter or Native Title funding letter.
- Federal Circuit and Family Court: Application for exemption from paying Court fees or reduction – financial hardship (general federal law) | Federal Circuit and Family Court of Australia has information about how to show that your income, day-to-day living expenses, liabilities and assets are at such that payment of the fee would cause you financial hardship.
- Federal Court: Exemption from paying court fees has information about general exemptions and financial hardship exemptions.
How do I apply?
Federal Circuit and Family Court:
- Application form.
- Claim form: Form 2 if you have been dismissed, Form 4 if you have not been dismissed.
- If you have been issued with a certificate in relation to your claim by the FWC, attach this to your claim.
- For detailed examples of contraventions of general protections, see the Fair Work Commission General Protections Benchbook.
- You can find more guidance on filling out the application form and the claim form on the LawAccess website.
- You can find copies of these forms on the FCFCoA webpage under ‘Fair work: Legal resources’.
Federal Court:
- Application form: Form 79 accompanied by a certificate from FWC if you have been dismissed, Form 81 if you are making a workplace discrimination claim, Form 15 for other
- Other form: Either statement of claim Form 17 or affidavit Form 59.
You must use a statement of claim if you are claiming damages.
If you have been issued with a certificate in relation to your claim by the FWC, attach this to your claim.
- You can find copies of these forms on the Federal Court website.
- You need to file (lodge) your forms with the court registry.
- You need to pay the filing fee when you file your documents.
Federal Circuit and Family Court:
- Online using the e-lodgement facility (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
Federal Court:
- Online using the e-lodgement facility or by fax (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
- By post, including a cover letter with your contact details and instructions for the court to file your forms.
Federal Circuit and Family Court and Federal Court (both):
Once you have filed your forms, you need to give a copy of the forms stamped by the court to your employer (or other person you are claiming against) so they can respond to your claims.
Individual employer
If your employer is a person, you need to:
- give the forms to them in person; or
- if they will not accept the forms, put them down in their presence and explain what they are.
Company employer
If your employer is a company, you need to:
- post the forms to the company’s registered office (address it to the “Proper Officer”);
- take the forms to the registered office and leave it with an employee; or
- hand the forms personally to a director of the company.
You can check the company’s registered address by searching
the ASIC Register.
Federal Circuit and Family Court (only):
If you have started your case in the Federal Circuit and Family Court, then once you have served your employer, you need to let the Court know.
Fill in the Affidavit of Service (Fair Work) form (available on the Federal Circuit and Family Court website) and take this form to the court registry.
The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
Time Limits – serving forms on your employer
- If filing in the Federal Circuit and Family Court: service must be done at least 7 days before the date of the first hearing.
- If filing in the Federal Court: service must be done at least 5 days before the date of the first directions hearing.
What orders can the court make?
If the court finds that the general protection provisions of the FW Act have been breached, the court can make any order it considers appropriate, for example:
- issue a fine (a civil penalty);
- make an order for reinstatement (if you have been dismissed);
- make an order awarding compensation for loss;
- grant an injunction or interim injunction; and/or
- award costs (who has to pay the legal fees) – in very limited circumstances.
Costs orders
A costs order is where the Court orders one party to pay the other party’s legal costs.
The Court may make a costs order against you if you are unsuccessful in your claim. This may happen in circumstances where you have acted unreasonably or where the main purpose of your claim was to harass or embarrass the other party.
Useful information
- Fair Work Commission – General Protections Benchbook
- Fair Work Ombudsman – Fact Sheets
- NSW Law Access – Employment rights | Going to the Federal Circuit and Family Court of Australia
- Federal Circuit and Family Court – Fair work: Legal resources
- Federal Court Rules 2011
- Federal Circuit and Family Court – Attending Court
- Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
- The Law Handbook (NSW) – Chapter 22 Employment
This resource was last updated on 31 October 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.
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