How to make a general protections claim
Last updated 21 September 2017
Last updated 21 September 2017
You can’t file a general protections dismissal claim and an unfair dismissal claim at the same time. Make sure you know the difference between the two and choose the best option for your circumstances. If you’re unsure, it’s a good idea to get legal help first.
This fact sheet answers the following questions:
Most Australian workers are covered by the general protections provisions. You are covered by the general protections regime if you:
For more information, see the Fair Work Commission page on national workplace relations system coverage.
The general protections laws are set out 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:
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:
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.
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.
If you have been dismissed from work, you need to start your claim at the FWC. You must pay a FWC application fee of $70.60 unless you can demonstrate serious financial hardship. See the FWC’s website for guidance on making an application (Guide 2).
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 prospect of success.
Once the FWC has issued a certificate:
You must lodge your application within 21 calendar days after the dismissal takes effect.
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 prospect of success.
Once the FWC has issued a certificate:
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:
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.
Time Limits: If you have not been dismissed, you can lodge your application with the FWC up to six years from the day the adverse action happened.
In non-dismissal matters, you do not need a certificate from the FWC before making an application to court.
You can apply to either the Federal Court or the Federal Circuit Court.
You should consider starting your case in the Federal Circuit Court because some fees are cheaper, and you may not have to wait as long before your matter is heard by a judge.
Time limits: If you have not been dismissed, you can lodge your application with the court up to six years from the day the alleged contravention occurred.
View the current fees in the Federal Court.
View the current fees in the Federal Circuit Court.
You may not have to pay the filing fee if you hold certain government concession cards or are suffering financial hardship. More information is available online:
Federal Circuit Court:
You need to fill out 2 forms:
Federal Court
You can file your forms:
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.
If your employer is a person, you need to:
If your employer is a company, you need to:
You can check the company’s registered address by searching the ASIC Register.
Time Limits:
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:
This resource was last updated on 21 September 2017. 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.