Employment Law Guide

Author: Paul Moorhouse and Gerard Boyce

This Employment Law Guide has commentary and precedents for advisors in the employment relationship. This includes determining employment rights & obligations, how to enforce them & defending claims.

This product is no longer available for sale.
Page

Full Guide

The following preview is an excerpt from this publication's full guide.

Purchase now for access to the commentary and precedents included in this publication.

6. Protection against unlawful dismissal, the protection of workplace rights and freedom of association

6.1  What is unlawful dismissal, workplace rights and freedom of association


Unlawful dismissal, workplace rights and freedom of association are all grouped together in this chapter because of the way in which the Fair Work Act 2009 groups them together as part of the ‘general protections’ set out in Part 3-1 of the Act. 

Unlawful dismissal

‘Unlawful dismissal’ refers to a dismissal for a reason that is prohibited by statute. 

It can be contrasted with ‘unfair dismissals’, which are dismissals that are unfair in all of the circumstances, regardless of whether they are for a prohibited reason.  Unfair dismissals are discussed in Chapter 7.  The Fair Work Act 2009 provides for completely different court proceedings, and remedies, in relation to unlawful dismissals as compared with unfair dismissals (see section 7.2).

Under the Fair Work Act 2009, most Australian employees obtain protection from unlawful dismissal as part of the ‘general protections’ against dismissal and other adverse action which are set out in Part 3-1 of the Act.  In addition, there are separate protections against unlawful termination in Part 6-4 of the Act, but an application relying on these additional protections is only available if the dismissal is not prohibited by the ‘general protections’ (for further discussion of the interaction between these two sources of protection against unlawful dismissal, see section 6.2).

Workplace rights

'Workplace rights' is used in the Fair Work Act 2009, and in this Guide, to refer to certain rights of employees, employers, prospective employees, prospective employers, independent contractors and others in connection with their workplace participation which are protected by the Fair Work Act 2009 (see section 6.4.3).  That protection is found in Part 3-1 of the Act, as part of the ‘general protections’.

Freedom of association

‘Freedom of association’ refers to the entitlement of employees, employers and others to join unions and employer associations, to participate in the lawful industrial activities of those bodies, and to be represented by those bodies in relation to workplace matters.  In the Fair Work Act 2009 the concept is extended to include the right to not join, not participate and not be represented.  Protection in relation to those matters (see section 6.4.4) is also found in Part 3-1 of the Act, as part of the ‘general protections’.

6.2  Overview of the protections provided by the Fair Work Act


The ‘general protections’

The protections that will be most important to the majority of Australian employees are the protections provided in Part 3-1 of the Fair Work Act 2009, which are referred to in the Act (and in this Guide) as the ‘general protections’ (see section 6.4).  They prohibit dismissal and other adverse action for a large number of reasons, including:

(a)  the existence or assertion of an employee’s 'workplace rights' (see section 6.4.3);

(b)  an employee’s union membership or ‘industrial activities’ (see section 6.4.4);

(c)  discriminatory reasons (see section 6.4.5); and

(d)  temporary illness or injury (see section 6.4.6).

The general protections protect not only employees, but also employers, prospective employees, independent contractors, and principals who engage independent contractors.  They will apply to all dismissals or other adverse actions by and against 'national system employees' and 'national system employers' (see section 1.4.2), as well as applying to certain other conduct where there is a requisite connection to Federal legislative power (see section 6.4.2). 

Where there has been a breach of the general protections, or where there is a proposed breach, the person affected may bring a claim seeking remedies including reinstatement, an injunction and/or compensation.  Such claims are discussed at section 6.5


Protection against unlawful termination

The Fair Work Act 2009 also contains additional and overlapping protections against unlawful termination in Part 6-4 of the Act.  These provisions prohibit the termination of an employee for a range of specified reasons, being reasons that are generally also prohibited by the general protections.  They are discussed at section 6.6
, and apply to all Australian (ie national and non-national system) employees.  Again, where there has been a breach (or proposed breach) the employee can seek reinstatement, an injunction and/or compensation.  However, a dismissed employee may not make an unlawful termination claim under Part 6-4 of the Act if he or she is entitled to make a claim relying on the general protections in Part 3-1 of the Act (s 723).  For this reason, the main relevance of the unlawful termination provisions in Part 6-4 of the Act is to protect those employees who are not 'national system employees'.

Protections where 15 or more employees are made redundant

The Fair Work Act 2009 also contains some specific protections for employees where a decision is made that 15 or more employees are to be made redundant.  These are discussed at section 6.7
, and breaches can lead to orders by a court (in some cases) or by the Fair Work Commission (in some cases).

6.3  Interaction between the various claims available to employees


The Fair Work Act 2009 contains provisions that expressly prevent employees who have been unlawfully dismissed, or otherwise subject to adverse action contrary to the Act, from bringing multiple claims in relation to the same conduct.

Dismissed employees

An employee who has been dismissed may not make an application or complaint alleging a breach of the general protections set out in Part 3-1 of the Fair Work Act 2009, or alternatively a breach of the unlawful termination provisions in Part 6-4 of the Act, if the employee (or someone on his or her behalf) has already brought any of the following types of claims in relation to the same dismissal (s 725):

(a)  an application for a bargaining order on the grounds that the employee was dismissed contrary to the good faith bargaining requirements in the Act (s 726);

(b)  an unfair dismissal application under the Fair Work Act 2009 (s 729) – unfair dismissal claims under the Act are discussed at section 7.3; or

(c)  an application or complaint made under any other Federal, State or Territory law (s 732) – such claims will include a claim brought under anti-discrimination legislation, and might also include a claim brought in the ordinary courts alleging wrongful dismissal (see Chapter 8 regarding wrongful dismissal claims).

Similarly, an application or complaint alleging a breach of the general protections, or alternatively a breach of the unlawful termination provisions, will prevent any subsequent claim of the types referred to immediately above in relation to the same dismissal (s 725).

This does not prevent a subsequent application where the previous application or complaint has been withdrawn or has failed for want of jurisdiction.  Further, an application or complaint which is limited to obtaining a benefit to which the dismissed employee is entitled as a result of the dismissal does not prevent a subsequent application in relation to the same dismissal (s 733). 

These provisions do not prevent an employee who commences court proceedings alleging a breach of the general protections or the unlawful termination provisions from including as part of that claim an additional or alternative claim arising out of the same facts, such as a claim for breach of contract.

There may be circumstances in which a dispute settlement procedure in an award or an enterprise agreement allows the Fair Work Commision, or another person, to arbitrate or otherwise deal with a dispute in relation to a dismissal.  In particular circumstances this may provide an alternative way of dealing with an employee’s allegedly unlawful dismissal which does not prevent a subsequent application.  Dispute settlement procedures are discussed at section 5.9.13

Whether to commence an unlawful dismissal claim or an unfair dismissal claim

There will be occasions where an employee’s dismissal gives rise to the ability to commence either an ‘unlawful dismissal claim’ of the types discussed in this Chapter, or an unfair dismissal claim under Part 3-2 of the Fair Work Act 2009 (dealt with in Chapter 7).

Commentary on the various reasons why an employee might commence either claim in particular circumstances is provided at section 7.2.

Employees subjected to other adverse action (not a dismissal)

A person must not commence a court proceeding alleging a breach of the general protections if the employee (or someone on their behalf) has already made an application or complaint under Federal or State anti-discrimination law in relation to the same conduct (s 734).   This does not apply where the first application or complaint has been withdrawn or has failed for want of jurisdiction. 

Similarly, a court proceeding alleging a breach of the general protections will prevent a subsequent application under anti-discrimination legislation (s 734). 

Unlike the position in relation to claims by dismissed employees, the restriction on multiple actions which applies to court proceedings alleging unlawful adverse action other than dismissal does not include any ‘catch all’ provision preventing such a proceeding where there has been any type of previous application or complaint in relation to the same conduct.

There may be circumstances in which a dispute settlement procedure in an award or an enterprise agreement allows the Fair Work Commision, or another person, to arbitrate or otherwise deal with a dispute in relation to adverse action against an employee.  In particular circumstances this may provide an alternative way of dealing with adverse action against an employee which is allegedly contrary to the general protections.  Dispute settlement procedures are discussed at section 5.9.13.

6.4  The general protections in the Fair Work Act

6.4.1  Overview of the general protections


Part 3-1 of the Fair Work Act 2009 provides the large majority of Australian employees with protection against dismissal or adverse actions by their employer:

(a)  because of an employee’s 'workplace rights' (see section 6.4.3);

(b)  because of an employee’s union membership or ‘industrial activities’ (see section 6.4.4);

(c)  for discriminatory reasons (see section 6.4.5); and

(d)  because of temporary illness or injury (see section 6.4.6),

as well as providing for a range of other miscellaneous protections (see section 6.4.6).

Further, protection is also given against being engaged under sham independent contractor arrangements, or being dismissed in order to be engaged as an independent contractor (see section 6.4.8).

These protections are referred to in the Fair Work Act 2009 (and in this Guide) as ‘general protections’.  They also apply to employers, prospective employees, independent contractors and principals who engage independent contractors. 

Protection is also available where there is a proposed breach of any of the general protections.

The general protections provided by the Act are broadly drafted and include, but extend beyond, the protection historically provided by industrial legislation against acts of victimisation and for freedom of association.  There are also related provisions which protect against coercion to exercise or not exercise a workplace right or engage in industrial activity, and against false or misleading statements in relation to workplace rights or industrial activities.

Reverse onus regarding reasons for action, and any operative reason is sufficient

The Fair Work Act 2009 contains a number of provisions which may make it easier for employees (and others) to establish a breach of the general protections. 

First, a person will be held to take action for an unlawful reason if the operative reasons for the action include that unlawful reason (see section 6.5.9).  In other words, the unlawful reason does not have to be the sole or dominant reason for the action.

Second, in actions for breach of any of the general protection provisions, a reverse onus applies in relation to the reason for the action.  That is, where it is alleged in proceedings that a person took, or is taking, action for a particular reason or with a particular intent which would constitute a breach of one of the general protections, the person will be presumed to have taken the action for that reason or with that intent unless they can prove otherwise (see section 6.5.9).

Encouraging or aiding and abetting contraventions of the general protections

A first person who, for a particular reason, advises, encourages, incites or coerces a second person to take action which, if taken by that second person for the first person’s reason, would be a contravention of one of the general protections, is taken to have contravened that same provision (see section 6.5.10).

Further, a person who aids, abets, induces or is in any way knowingly concerned in a contravention of one of the general protections, is taken to have also contravened the same provision (see section 6.5.10).

Actions for breach of the general protections

Where an employee (or prospective employee, or independent contractor) is subjected to action which is contrary to the general protections set out in Part 3-1 of the Fair Work Act 2009 (or where there is a proposed contravention) he or she may bring a claim to the Federal Court or the Federal Magistrates Court seeking remedies including reinstatement, an injunction and/or compensation.  Such claims are referred to in the Act as ‘general protections court applications’, and are discussed at section 6.5.  In the case of claim by an applicant who has been dismissed, the applicant will usually first have to make an application to the Fair Work Commission, and give the Fair Work Commission the opportunity to seek to resolve the matter (see section 6.5.2).

An employee or other person who feels that they have been subjected to action which is contrary to the general protections may also make a complaint to the Workplace Ombudsman (see section 6.5.16).

6.4.2  To whom do the protections apply?


The general protections in Part 3-1 of the Fair Work Act 2009 will apply to virtually all adverse actions taken by or against Australian employees and Australian employers.  They can also apply to adverse action taken against prospective employees, and adverse action taken by or against independent contractors, and principals who have entered into contracts with independent contractors.

First, they apply to actions taken by, or that affect or are capable of affecting, a range of entities which provide the requisite connection with a constitutional power to make Federal laws, including a trading, financial or foreign corporation, or a Commonwealth authority, or a corporation incorporated in a Territory (see s 338 for full details).  They also apply to (s 338):

(a)  actions taken in the Territories, or any place owned by the Commonwealth for a public purpose;

(b)  actions taken by persons who employ flight crew officers, maritime employees or waterside workers in connection with 'constitutional trade and commerce' that affect or are capable of affecting their employees, and actions by those employees that affect or are capable of affecting their employer; and

(c)  actions taken by persons who carry on an activity in a Territory and employ, or usually employ, individuals in connection with that Territory activity that affect or are capable of affecting their employees, and actions by those employees that affect or are capable of affecting their employer.

Further, and overlapping significantly with the application already described, the general protections also apply to actions taken by, or against (s 339):

(a)  'national system employees' and 'national system employers' (including prospective employers and prospective employees) – this will include all employees and employers in the private sector with some exceptions in Western Australia (see section 1.4);

(b)  unions or employer associations registered under Federal industrial legislation; and

(c)  a range of other legal entities which provide the necessary connection to a head of constitutional power to make Federal law (see s 339 for full details). 

6.4.3  The protection of workplace rights


Overview

The Fair Work Act 2009 protects employees, employers, prospective employees, independent contractors and others from adverse action because of their entitlements under the Act and other Federal or State industrial legislation, an award or an agreement.  Employees and others are also protected from adverse action as a result of making a complaint, commencing proceedings, or participating in processes allowed by the Fair Work Act 2009 or other industrial legislation.

The Fair Work Act 2009 also prohibits coercing persons to exercise or not exercise workplace rights, exerting undue influence on employees in relation to certain matters and making false or misleading representations about workplace rights.

The protection given to workplace rights is drafted broadly, and in some respects has no direct predecessor in the previous Federal industrial legislation.  Decisions of courts and tribunals will be required to determine exactly how these protections should be applied. 

Where there is a breach of these protections a person may make an application to have the Fair Work Commission conduct a conference in relation to the matter, and/or commence proceedings in the Federal Court or the Federal Magistrates Court seeking injunctions, compensation and/or reinstatement, as discussed at section 6.5.

The protection

A person must not take 'adverse action' against another person (s 340(1)):

(a)  because the other person has a 'workplace right', has or has not exercised a workplace right, or proposes or proposes not to, or has proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by another person.

Further, a person must not take adverse action against a second person because a third person has exercised, or proposes to exercise, or has at any time proposed to exercise, a workplace right for the second person’s benefit (s 340(2)).

What constitutes adverse action is discussed at section 6.4.7.

What are workplace rights?

A person has a 'workplace right' if the person (s 341(1)):

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, a workplace instrument or an order made by an industrial body;

(b)  is able to initiate, or participate in, a process or proceeding under a workplace law or a workplace instrument; or

(c)  is able to make a complaint or inquiry to a person or body able to seek compliance with a workplace law or a workplace instrument or, if the person is an employee, in relation to his or her employment.

'Workplace law', 'workplace instrument' and 'industrial body' are each defined (s 12).  'Workplace instrument'includes any award or agreement made under, or recognised by, a Federal or State industrial law. 

'Process or proceeding under a workplace law or workplace instrument' is also defined (s 341(2)).  It includes conferences conducted by the Fair Work Commission, court proceedings under the Fair Work Act 2009 or other Federal or State industrial legislation, and a range of processes provided for by the Fair Work Act 2009 including taking protected industrial action, making or terminating an enterprise agreement, appointing or terminating the appointment of a bargaining agent, making a request for flexible working arrangements (see section 4.4.3), any dispute settlement under an award or agreement and 'any other process or proceedings under a workplace law or workplace instrument'.

A prospective employee is taken to have the workplace rights which he or she would have if they were employed in the prospective employment (s 341(3)), although there are some exceptions applicable to prospective employees (s 341(4), (5)).

Protection because of entitlement to the benefit of an award or agreement

Under previous Federal industrial legislation there has been some significant case law on the scope of the protection against adverse action because of an entitlement to the benefit of an award or agreement.  The protection will apply not only where an employer is motivated to act adversely by the fact that an award or agreement applies, but also where an employer is motivated to act adversely by the particular content of an applicable award or agreement (Greater Dandenong City Council v Australian Municipal Clerical and Services Union (2001) 112 FCR 232; 184 ALR 641; 111 IR 121; [2001] FCA 349, at [81], [129]-[132] and [213]).

Coercion, undue influence and misrepresentations in relation to workplace rights

A person must not organise or take, or threaten to organise or take, any action against another person with the intent to coerce that person or a third person to exercise or not exercise a workplace right, or to exercise or propose to exercise a workplace right in a particular way (s 343).

A person must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to (s 344):

(a)  make or not make an agreement or arrangement under the National Employment Standards, or under a modern award or enterprise agreement;

(b)  agree to or terminate an individual flexibility agreement;

(c)  accept a guarantee of individual earnings; or

(d)  agree or not agree to a deduction from amounts payable to the employee.

A person must not knowingly or recklessly made a false or misleading representation about another person’s workplace rights, or the exercise of another person’s workplace rights or the effect of the exercise of another person’s workplace rights (s 345).

A breach of these provisions will also entitle a person to make a claim as set out at section 6.5.

6.4.4  The protection of freedom of association


Overview

The Fair Work Act 2009 protects employees, prospective employees , independent contractors and others from adverse action because of their membership or non-membership of a union or employer association, or because they engage in lawful industrial activities (which includes activities for or on behalf of a union or employer association, or advancing the views or interests of a union or employer association) or refuse to engage in industrial action or unlawful industrial activities.  The protection extends to adverse action taken because a person does or does not seek to be represented by a union or employer association.

The Fair Work Act 2009 also prohibits coercing persons to engage in industrial activity, inducing persons to become or not become a union officer or member, and making false and misleading statements about industrial activities.

The protection given to freedom of association is drafted broadly, and in some respects has no direct predecessor in the previous Federal industrial legislation.  Decisions of courts and tribunals will be required to determine exactly how these protections should be applied. 

Where there is a breach of these protections a person may make an application to have the Fair Work Commission conduct a conference in relation to the matter, and/or commence proceedings in the Federal Court or the Federal Magistrates Court seeking injunctions, compensation and/or reinstatement, as discussed at section 6.5.

The protection

A person must not take adverse action against another person because the other person (s 346):

(a)  is or is not, or was or was not, an officer or a member of a union or employer association;

(b)  engages, or has engaged or proposed to engage, in certain industrial activity; or

(c)  does not engage, or has not engaged or proposed not to engage, in certain industrial activity.

What constitutes adverse action is discussed at section 6.4.7.

Protection because a person is a union member

In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910 North J held that the prohibition on adverse action because a person was a member of a union (under previous Federal industrial legislation) included protection against conduct carried out because of the activities of a union of which a person was a member (at [216]-[217]).

What is engaging in industrial activity?

'Engages in industrial activity' is defined differently for the purposes of (b) and (c) above.

For the purposes of (b) above (the protection against engaging in industrial activities) the definition of 'engages in industrial activity' is limited to lawful activities (see s 347(a), (b)).  The industrial activities included within that definition include choosing to become, or not to be become, an officer or member of a union, participating in lawful union activities, paying union fees or seeking to be represented by a union or employer association.

For the purposes of (c) above (the protection against not engaging in industrial activities) the definition of ‘industrial activity’ is focussed primarily on unlawful union or employer association activities, but includes taking part in industrial action whether lawful or unlawful (see s 347(c) to (g)).

Coercion, inducements and misrepresentations in relation to industrial activity

A person must not organise or take, or threaten to organise or take, any action against a person with the intent to coerce that person or a third person to engage in industrial activity (s 348).  For this purpose 'engages in industrial activity' is defined in s 347.

An employer must not induce an employee, and a principal must not induce an independent contractor, to take membership action (s 350).  A person takes 'membership action' if the person becomes, does not become, remains or ceases to be an officer or member of a union or employer association.

A person must not knowingly or recklessly make a false or misleading representation about (s 349):

(a)  another person’s obligation to engage in industrial activity; or

(b)  another person’s obligation to disclose whether he or she or a third person is or is not, or was or was not, an officer or member of a union or employer association, or is or is not engaging, or has or has not engaged, in industrial activity.

A breach of these provisions will also entitle a person to make a claim as set out at section 6.5.

6.4.5  The protection against discrimination


An employer must not take adverse action against an employee or prospective employee because of that person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin (s 351).

What constitutes adverse action is discussed at section 6.4.7.

There are three exemptions from this general protection against discrimination.  The general protection does not apply to (s 351(2)):

(a)  action that is not unlawful under any anti-discrimination legislation in force in the relevant State or Territory – a broad reading of this exemption suggests that an employer’s action will only be contrary to the general protection against discrimination provided by the Fair Work Act 2009 if it is also contrary to some applicable Federal or State anti-discrimination legislation;

(b)  action taken because of the inherent requirements of the particular position; and

(c)  action taken against a staff member of a religious institution which is taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion.

Section 351 of the Fair Work Act 2009 provides the large majority of Australian employees (and prospective employees) with a general protection against discrimination in a manner which overlaps with Federal and State anti-discrimination legislation.  Employees (or prospective employees) who consider that they have been discriminated against contrary to this protection may bring a claim to the Fair Work Commission, and/or the Federal Court or the Federal Magistrates Court, and may seek reinstatement, injunctions and/or compensation, as discussed at section 6.5.

An employee (or prospective employee) must elect between making a court application alleging a breach of the protection against discrimination provided by the Fair Work Act 2009 and an application or complaint under Federal or State anti-discrimination legislation (s 725, s 734).

The process provided by the Fair Work Act 2009, and the remedies available under the Act, provide an employee (or prospective employee) who has been discriminated against with certain advantages as compared with a claim made under anti-discrimination legislation.  One advantage is the reverse onus provision which applies under the Fair Work Act 2009 in relation to the reason for the alleged discriminatory action (see section 6.5.9), and another advantage may be provided by the more extensive remedies available under the Fair Work Act 2009.

6.4.6  The protection of other rights


The general protections given by the Fair Work Act 2009 include a range of miscellaneous protections as set out below.  A breach of any of these provisions will entitle a person to make a claim as set out at section 6.5.

Dismissal due to illness or injury

An employer must not dismiss an employee because the employee is temporarily absent because of illness or injury where any of the following applies (s 352 and reg 3.01, Fair Work Regulations 2009):

(a)  the employee provides a medical certificate, or a statutory declaration about the illness or injury, within 24 hours of the commencement of the absence or such longer period as is reasonable;

(b)  the employee is required by an award or an agreement to notify the employer of the absence and the reasons for the absence, and complies with that obligation; or

(c)  the employee has provided evidence that would satisfy a reasonable person that the employee is not fit for work due to a personal illness or injury.

However, this protection does not apply where the employee’s absence exceeds three months, or a total of three months in any 12 month period (whether for the same illness or injury or separate illnesses or injuries), excluding any period when the employee is absent while receiving workers’ compensation.

Demanding bargaining service fees

A union or employer association, or an officer or member of a union or employer association, must not demand, or do anything that would have the effect of demanding, payment of a bargaining service fee (s 353).  'Bargaining services fee' is a fee payable for services provided by a union or employer association in relation to an enterprise agreement or proposed enterprise agreement, but does not include membership fees.

Discrimination against employers because of award or agreement coverage

A person must not discriminate against an employer because (s 354):

(a)  employees of the employer are covered, or are not covered, by the National Employment Standards, or by a particular kind of award or agreement, or by an agreement that does or does not cover a particular union; or

(b)  it is proposed that employees of the employer be covered or not covered by a particular kind of award or agreement, or by an agreement that does or does not cover a particular union.

Coercion to engage or allocate duties to a particular person

A person must not organise or take, or threaten, any action against another person with the intent to coerce the other person, or a third person, to (s 355):

(a)  employ or not employ a particular person;

(b)  engage or not engage a particular independent contractor;

(c)  allocate or not allocate particular duties to a particular employee or independent contractor; or

(d)  designate a particular employee or independent contractor as having or not having particular duties.

6.4.7  What constitutes adverse action?


For the purpose of the general protections set out in Part 3-1 of the Fair Work Act 2009, 'adverse action' covers any of the following circumstances (s 342):

(a)  an employer takes adverse action against an employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees;

(b)  a prospective employer takes adverse action against a prospective employee if the prospective employer refuses to employ the prospective employee, or discriminates against the prospective employee in the terms or conditions on which employment is offered; and

(c)  an employee takes adverse action against his or her employer if the employee ceases work or takes industrial action.

The Act also specifies the circumstances which will constitute adverse action by (s 342):

(a)  a principal against an independent contractor or prospective independent contractor, or against a person employed or engaged by the independent contractor);

(b)  an independent contractor against his or her principal; or

(c)  a union or employer association (or an officer or member of a union or employer association) against a person.

'Adverse action' also includes threatening to take, or organising, any such action (s 342(2)).  However, it does not include any action that is authorised by the Fair Work Act 2009 or any other Federal law (s 342(3)), and it does not include standing down an employee who is engaged in protected industrial action where the contract of employment allows the employee to be stood down in those circumstances (s 342(4)).

Dismissal of an employee

See section 7.3.2 for commentary on when an employee is dismissed.

Injury to an employee, or altering an employee’s position to his or her prejudice

Cases decided under previous Federal industrial legislation have established that ‘injury’ refers to an injury or alteration to any legal right, while altering an employee’s position to his or her prejudice extends beyond legal injury to any real or substantial deterioration in the employee’s position: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, at [18]; 152 ALR 643; 72 ALJR 873; 27 ACSR 535; 79 IR 339; [1998] HCA 30Byrne v Australian Opthalmic Supplies Ltd [2008] FCA 66, at [21]-[26]; and Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1; [2006] FCA 1441, at [13]-[22].  A before and after test is usually applied to determine whether there has been any injury to, or prejudicial alteration of, the position of an employee: Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 175 IR 320; [2008] FCA 1224, at [24].

The commencement of an investigation by an employer can in certain circumstances constitute adverse action against an employer: Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22; 196 IR 241; [2010] FCA 399, at [72]-[80] (and the cases cited therein).

6.4.8  Protections against sham contracting arrangements


An employer that employs or proposes to employ an individual must not represent to that individual that the contract of employment under which that person works or would work is a contract for services under which the individual performs or would perform work as an independent contractor (s 357).  There will be no breach if the employer proves that when the representation was made the employer did not know, and was not reckless as to whether, the contract was a contract of employment rather than a contract for services (s 357(2)).

An employer must not dismiss or threaten to dismiss an employee in order to engage that person as an independent contractor to perform the same or substantially the same work (s 358).

An employer that employs or has employed an individual must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract to perform the same or substantially the same work as an independent contractor (s 359).

Commentary on the difference between employees and independent contractors can be found at section 1.2.2.

A breach of any of these provisions will entitle a person to make a claim as set out at section 6.5.

6.5  General protections claims under the Fair Work Act

6.5.1  Overview of claims to enforce the general protections


A claim to enforce any of the general protections set out in Part 3-1 of the Fair Work Act 2009 is brought initially to the Fair Work Commission (in most cases), and then if the matter is not resolved to the Federal Court or the Federal Magistrates Court.

Where an employee has been dismissed in breach of any of the general protections, the employee or his or her union may bring an application to the Fair Work Commission (see section 6.5.2 and following). The Fair Work Commission will attempt to resolve the matter by means of conciliation or mediation (see section 6.5.4). The Fair Work Commission cannot make a binding determination, although it may express an opinion in relation to the matter.  However, a dismissed employee cannot bring a general protections claim to a court until the Fair Work Commission has attempted to resolve the matter, except where the employee seeks an interim injunction as part of the claim (see section 6.5.6).  Where an employee seeks an interim injunction, the employee may commence court proceedings without first bringing an application to the Fair Work Commission.

Where a person alleges that they were subjected to any adverse action other than dismissal in breach of the general protections a claim to the Fair Work Commission may be made as an initial attempt to resolve the matter, but is optional (see section 6.5.2).

If the Fair Work Commission is unable to resolve the matter, or if an application to the Fair Work Commission is not required, the employee or other person affected by the alleged unlawful adverse action may commence proceedings in the Federal Court or the Federal Magistrates Court (see section 6.5.6 and following).  A court application may also be made in relation to a proposed breach of the general protections.  Following a hearing, either court is able to grant any remedy the court considers appropriate, including an injunction, compensation or reinstatement (see section 6.5.12).   A person who has breached the general protections may also be ordered to pay a civil penalty (see section 6.5.13).

Costs will not usually be available in claims to enforce the general protections in either the Fair Work Commission (see section 6.5.5) or the courts (see section 6.5.15). 

As an alternative to bringing a claim to the Fair Work Commission or a court, an employee or other person affected by a breach of the general protections may make a complaint to the Fair Work Ombudsman, who may investigate and seek to resolve such matters (see section 6.5.16).

6.5.2  Application to the Fair Work Commission


Claim where applicant has been dismissed

Where an employee has been dismissed from employment, and considers that he or she was dismissed in breach of any of the general protections set out in Part 3-1 of the Fair Work Act 2009, the employee or his or her union may bring an application to the Fair Work Commission (s 365).

As to the meaning of 'dismissed', see section 7.3.2.

The application to the Fair Work Commission must be made within 60 days of the dismissal taking effect or such further period as the Fair Work Commission allows (s 366) (for general protections claims in relation to a dismissal occurring prior to 1 January 2013, the time period is 60 days). The Fair Work Commission may allow an extension of this time limit if it is satisfied that there are exceptional circumstances, taking into account the criteria specified in the Fair Work Act 2009 (s 366(2)). Commentary about a similar power to grant an extension of time in relation to unfair dismissal claims can be found at section 7.3.7.

A general protections claim arising out of a dismissal may not be made if the employee has commenced an unfair dismissal claim, or any other action or complaint in relation to the same dismissal, which has not been withdrawn or failed for want of jurisdiction (see section 6.3).

Claim arising out of other adverse action

Where a person alleges that they were subjected to an adverse action other than dismissal in breach of the general protections set out in Part 3-1 of the Fair Work Act 2009, the person may bring an application to the Fair Work Commission (s 372).  The Act does not specify any time limit in relation to such applications.

Such an application will mean that the Fair Work Commission will attempt to resolve the matter by means of conciliation or mediation (see section 6.5.4). The Fair Work Commission cannot determine the matter, although it may express an opinion in relation to the matter. 

Where a claim arises out of adverse action other than dismissal, the applicant may chose to commence a proceeding in the Federal Court or the Federal Magistrates Court without first applying to the Fair Work Commission (see section 6.5.6).

Process for making application

An application is made using Form Application for FWA to deal with a general protections dispute.  The form requires a brief statement as to why the respondent has contravened the Fair Work Act 2009.

An application may be lodged in person at a the Fair Work Commission office, or by post or facsimile, or by email (see r 20, Fair Work Commission Rules 2010). 

An application must be accompanied by the application fee, currently $64.20 (s 367, s 373, and reg 3.02, reg 3.03, Fair Work Regulations 2009).  Details of the possible methods of payment are included on the Application Form.  Alternatively, an application for waiver of the application fee may be lodged using the Application for waiver of application fee.  The application fee will be waived if the Fair Work Commission is satisfied that the applicant would suffer serious hardship if required to pay the fee (reg 3.02(7)reg 3.03(7) Fair Work Regulations 2009).

An application must be served on the respondent as soon as practicable (r 8.1, r 9.1, Fair Work Commission Rules 2010).  Rule 9 and r 10 of the Fair Work Commission Rules 2010 deal with the methods of effecting service.

Limitations on representation before the Fair Work Commission by a lawyer or paid agent are noted at section 6.5.5.  Regardless of those restrictions, an applicant may list a lawyer or paid agent as his or her representative on the application form (see r 17A, Fair Work Commission Rules 2010), and nothing prevents an applicant from being advised by a lawyer or paid agent in relation to a general protections claim.  Further, there will be no limit on legal representation if the matter proceeds to a court (see section 6.5.14).

6.5.3  Response to general protections claim to the Fair Work Commission


Where an employer or other respondent is served with a general protections claim made to the Fair Work Commission, it must file and serve a response within 14 days, using Response to application for FWA to deal with a general protections dispute.

Where the applicant alleges that the claim arises from a dismissal, the respondent must participate in a conference before the Fair Work Commission to try and deal with the matter.

Where the claim does not arise out of a dismissal, the respondent is required to specify whether it will participate in a conference before  the Fair Work Commission to deal with the matter.  If the respondent decides not to participate, the Fair Work Commission is not required to conduct a conference to resolve the dispute, and the matter may proceed directly to a court application.  Note however that unreasonable refusal to participate in the Fair Work Commission proceedings may provide a basis for making a costs order against that party in any subsequent court proceedings relating to the same matter (see 6.5.15).

A respondent to such a claim may wish to use the opportunity presented by the claim to the Fair Work Commission to deal with the matter, including by having the Fair Work Commission express an opinion or make a recommendation in relation to the matter (see 6.5.4), in order to attempt to avoid court proceedings.

Limitations on representation before the Fair Work Commission by a lawyer or paid agent are noted at 6.5.5.  Regardless of those restrictions, a respondent may list a lawyer or paid agent as its representative on the response form (see r 17A, Fair Work Commission Rules 2010), and nothing prevents a respondent from being advised by a lawyer or paid agent in relation to a general protections claim.  Further, there will be no limit on legal representation if the matter proceeds to a court (see 6.5.14).

6.5.4 Procedure in claims to the Fair Work Commission


Claims arising out of a dismissal

Where an employee makes an application to the Fair Work Commission in relation to a general protections claim arising out of a dismissal, the Fair Work Commission must conduct a conference to deal with the dispute (s 368).

Claims not arising out of a dismissal

Where an employee makes an application to the Fair Work Commission in relation to a general protections claim which does not arise out of a dismissal, the Fair Work Commission must conduct a conference to deal with the dispute only if the parties agree to participate (s 374).  This means that in relation to such claims a respondent employer can elect to avoid having the Fair Work Commission seek to resolve the matter, and simply await any court proceeding which may be commenced by the applicant (although such an approach may have costs consequences - see section 6.5.3). 

Fair Work Commission conference

Where the Fair Work Commission conducts a conference in relation to a general protections claim, it may direct a person to attend the conference (s 592(1)); see also s 590 and r 18, Fair Work Commission Rules 2010).  Such conferences will generally be conducted in private (s 592(3)). The Fair Work Commission may try to resolve the matter by mediation or conciliation, or by making a recommendation or expressing an opinion (s 595(2)).  One of the recommendations that the Fair Work Commission might make if the dispute arises out of a dismissal is that an unfair dismissal application be made.

The Fair Work Commission is not able to make a binding determination or award any remedies.

No reasonable prospects of success

If the Fair Work Commission considers that a court application in relation to the matter would not have a reasonable prospect of success, it must advise the parties accordingly (s 370, s 375).

Issuing a certificate to allow a court proceeding to be commenced

In the case of a general protections claim arising out of a dismissal, if the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it must issue a certificate to that effect (s 369).  Such a certificate is necessary for an applicant who wishes to bring the matter to a court (see section 6.5.6).

6.5.5  Representation and costs in claims to the Fair Work Commission


Parties to proceedings before the Fair Work Commission are generally entitled to be represented by a lawyer or paid agent for the purposes of preparing and/or filing documents, and the prescribed forms allows an applicant or a respondent to provide details of their representative (see section 6.5.2 and section 6.5.3).  A person who commences to act as a solicitor, paid agent or other representative of a party to a matter already before the Fair Work Commission should file Notice of representative commencing to act (r 17, Fair Work Commission Rules 2010).

Parties to a matter before the Fair Work Commission may only be represented by a lawyer or paid agent with the permission of the Fair Work Commission, with that permission only to be granted in specified circumstances (s 596).  However, that does not apply if the lawyer or paid agent is an employee or officer of the party, or is an employee or officer of a union registered under Federal legislation, or is an employee or officer of an employer association.  

Subject to any direction by the Fair Work Commission to the contrary, a party is entitled to be represented by a lawyer or paid agent for the purpose of preparing and/or lodging any document or written submission with the Fair Work Commission (r 17A, Fair Work Commission Rules 2010).  However, that does not affect the requirement for a party to obtain leave to be represented by a lawyer or paid agent at any conference or hearing.

It should be noted that in proceedings before the (former) Australian Industrial Relations Commission in matters involving individual rights (notably unfair dismissal claims), in which lawyers and paid agents also required leave to appear (albeit pursuant to a different statutory test), such leave was usually given (see Visscher v Teekay Shipping (Australia) Pty Ltd [2004] AIRC 1235, at [6]). 

Costs

In general, a party must bear its own costs in relation to a matter before the Fair Work Commission (s 611).  However, the Fair Work Commission may order a party to bear some or all of the costs of another person if (s 611(2)):

(a) the Fair Work Commission is satisfied that the party made or responded to the application vexatiously or without reasonable cause; or

(b) the Fair Work Commission is satisfied that it should have been apparent that the party’s application, or the party’s response to the application, had no reasonable prospects of success.

Where the Fair Work Commission has allowed a party to be represented by a lawyer or a paid agent it may make an order for costs against the lawyer or paid agent in limited circumstances (s 376).

An application for costs must be made within 14 days after the Fair Work Commission finishes dealing with the matter (s 377).  The application should be made using Application for costs.  A schedule of costs has been prescribed for the purposes of orders for costs against lawyers and paid agents (reg 3.04 and Schedule 3.1, Fair Work Regulations 2009), and in awarding such costs the Fair Work Commission must not award costs in relation to an item that appears in the schedule at a rate or of an amount greater than that set out in the schedule.

6.5.6  Claims to Federal Court or Federal Magistrates Court


An employee or other person affected by a contravention or proposed contravention of any of the general protections set out in Part 3-1 of the Fair Work Act 2009 may bring an application to the Federal Court or the Federal Magistrates Court (s 539).

Such an application may also be made by a union on behalf of an employee affected by the contravention if the union is entitled to represent the industrial interests of the employee (s 539(2), s 540(2), (6)), or by a Fair Work Inspector, although an application may not be able to be made by an Inspector where an undertaking has been given, or a compliance notice has been issued, in relation to the contravention (s 715(4), s 716(4A)).

Such an application can also include any additional or alternative claim under either Court's accrued jurisdiction.  That is, it can include any other claim which forms part of the same controversy or which arises out of common transactions and facts.  For example, in a claim alleging that a dismissal was contrary to the general protections it will also be possible to include a claim that the dismissal was a breach of the applicable employment contract. 

An applicant need not file a genuine steps statement if the proceedings are brought wholly under the Fair Work Act 2009, as such proceedings are excluded proceedings for the purposes of the Civil Dispute Resolution Act 2011 (s 6, s 16, Civil Dispute Resolution Act 2011).  Otherwise, an applicant must file a genuine steps statement in accordance witht he rules of the Federal Court or the Federal Magistrates Court in relation to those parts of the proceedings which are not excluded proceedings.

Court proceedings alleging a contravention or proposed contravention of the general protections will be subject to the restrictions on awards of costs which apply to proceedings brought under the Fair Work Act 2009 (see section 6.5.15).  Where an additional claim is included with a general protections claim, those costs limitations are likely to also apply to the additional claim (see section 6.5.15).

An application arising out of a dismissal may not be made if the employee has previously commenced an unfair dismissal claim, or any other action or complaint in relation to the same dismissal, which has not been withdrawn or failed for want of jurisdiction (see section 6.3).  An application that does not involve a dismissal must not be made if a previous application or complaint has been made under anti-discrimination legislation which has not been withdrawn or failed for want of jurisdiction (see section 6.3).

Certificate from the Fair Work Commission is required in certain cases

Where a general protections claim is made by an applicant who has been dismissed, the applicant must not commence court proceedings in relation to the claim unless the Fair Work Commission has issued a certificate certifying that all reasonable attempts to resolve the matter have been, or are likely to be, unsuccessful (s 371).  To obtain such a certificate an application must be made to the Fair Work Commission (see section 6.5.2 and following).

However, a certificate from the Fair Work Commission is not required if the general protections claim includes an application for an interim injunction (s 371).  For example, an employee who has been threatened with dismissal in breach of his or her workplace rights and who seeks an interim injunction to prevent the dismissal from taking effect until the proceedings are finally determined could commence court proceedings without first making an application to the Fair Work Commission (see section 6.5.12 for commentary on interim injunctions).

A certificate from the Fair Work Commission is not required where the general protections claim does not arise out of a dismissal.

Time limit

Where a certificate from the Fair Work Commission is required before court proceedings may be commenced, an application to the Federal Court or the Federal Magistrates Court must be made within 14 days of the issue of the certificate, or such further period as either court allows (s 371(2)).  The Fair Work Act 2009 contains a note stating that the decision in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 sets out principles relating to the exercise of a similar discretion under previous Federal legislation.  Some comments about a similar power to grant an extension of time in relation to unfair dismissal applications can be found at section 7.3.7.

In other instances, the application to either Court must be made within 6 years of the day on which the contravention occurred (s 544).

Federal Court or Federal Magistrates Court?

General protections claims may be commenced in either the Federal Court of Australia or the Federal Magistrates Court.

When choosing where to commence proceedings an applicant will have regard to the lower fees payable in the Federal Magistrates Court and the requirement for that Court to conduct proceedings without undue formality (meaning that proceedings in that Court can usually be conducted more quickly and cheaply than proceedings in the Federal Court).  The Federal Magistrates Court is familiar with proceedings arising from dismissals from employment, and will usually be the appropriate Court for such proceedings.  However, an applicant contemplating proceedings in the Federal Magistrates Court should note the different procedures applicable in that Court, such as the reduced availability of discovery and interrogatories.

The Federal Court has the power to transfer proceedings commenced in that Court to the Federal Magistrates Court (s 32AB, Federal Court of Australia Act 1976 and r 27.11, r  27.12 Federal Court Rules 2011). 

If the claim was to be a test case, and/or involved difficult questions of interpretation, and/or was likely to be the subject of an appeal, it may be appropriate to commence the claim in the Federal Court.  Representative proceedings can be commenced in the Federal Court.

Process for making application – Federal Magistrates Court

An application to the Federal Magistrates Court should be made in the Court’s Fair Work Division using the form entitled Application - Fair Work Division, and be accompanied by:

(a)  in the case of an application alleging dismissal in contravention of the general protections, Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (r 45.06, Federal Magistrates Court Rules 2001) and, if required, the certificate issued by the Fair Work Commission; or

(b)  in the case of an application alleging any other contravention of the general protections, Claim under the Fair Work Act 2009 alleging contravention of a general protection (r 45.08, Federal Magistrates Court Rules 2001). 

Unlike most general Federal law proceedings in the Federal Magistrates Court, such an application is not required to be accompanied by an affidavit, statement of claim or points of claim (r 4.05, Federal Magistrates Court Rules 2001).

Documents may be filed with the Federal Magistrates Court in person, by post, by facsimile or electronically (r 2.05, Federal Magistrates Court Rules 2001).  Information about electronic lodgement of documents, which requires a user to be registered with the federal courts' eLodgement system, is available on the Court's website.

An application fee is payable.  In the case of an application where the applicant has been dismissed from employment, or the applicant alleges a breach of s 351 of the Fair Work Act 2009 (regarding discrimination), the fee is currently $64.20.  In other instances the Federal Magistrates Court’s usual application fee (currently $515 for individuals) applies. Certain classes of persons are exempt from having to pay fees, and a person may also seek an exemption on the basis that payment would cause financial hardship, or alternatively payment may be deferred having regard to the financial circumstances of the applicant. Further details, and forms for seeking a fee exemption or deferral are available via the Federal Magistrates Court’s website.

Service of Federal Magistrates Court applications is dealt with in Part 6 of the Federal Magistrates Court Rules 2001.

Process for making application – Federal Court

An application to the Federal Court of Australia made by a dismissed employee should be made using:

(a)  in the case of an application alleging dismissal in contravention of the general protections, an application in accordance with Originating application under the Fair Work Act 2009 alleging dismissal in contravention of a general protection and, if required, the certificate issued by the Fair Work Commission (r 34.03, Federal Court Rules 2011)

[It appears that the usual requirement to file an affidavit or statement of claim with an application (r 8.05, Federal Court Rules 2011) does not apply to such applications commenced in accordance with r 34.03 of the Federal Court Rules 2011.  However, where proceedings are commenced without a statement of claim the court may require a statement of claim or points of claim to be filed – see section 6.5.8.]

(b)  in the case of an application alleging unlawful discrimination in contravention of s 351 of the Act (regarding discrimination), an application in accordance with Originating application under the Fair Work Act 2009 alleging discrimination and, if required, the certificate issued by the Fair Work Commission (r 34.05, Federal Court Rules 2011); or

[It appears that the usual requirement to file an affidavit or statement of claim with an application (r 8.05, Federal Court Rules 2011) does not apply to such applications commenced in accordance with r 34.05 of the Federal Court Rules 2011.  However, where proceedings are commenced without a statement of claim the court may require a statement of claim or points of claim to be filed – see section 6.5.8.]

(c)  in the case of an application alleging any other contravention of the general protections, an originating application
Originating application accompanied by a statement of claim (r 8.01, r 8.05, Federal Court Rules 2011).

The application should be made in the Court’s Fair Work Division (see s 13(3) Federal Court of Australia Act 1976). 

Documents may be filed with the Federal Court in person, by post or DX, by facsimile or by electronic filing.  Further details are provided on the Federal Court’s website.

An application fee is payable.  In the case of an application where the applicant has been dismissed from employment, or the applicant alleges a breach of s 351 of the Fair Work Act 2009 (regarding discrimination), the fee is currently $64.20.  In other instances the Federal Court’s usual application fee (currently $1080 for individuals) applies.  Certain classes of persons are exempt from having to pay fees, and a person may also seek an exemption on the basis that payment would cause financial hardship, or alternatively payment may be deferred having regard to the financial circumstances of the applicant.  Further details, and forms for seeking a fee exemption or deferral are available via the Federal Court’s website.

Service of Federal Court applications is dealt with in Part 10 of the Federal Court Rules 2011.

6.5.7  Employer’s response to general protections claim to a Court


Federal Magistrates Court

A response to a general protections court application should be made using the form entitled Response - General Federal Law.  A response should be filed within 14 days of the service of the application, and set out any orders sought by the respondent and the basis on which the orders are sought (r 4.03, r 4.04, Federal Magistrates Court Rules 2001).

Federal Court

A notice of address for service in accordance with Notice of address for service should be filed by a respondent before the first directions hearing and before filing any other document in the proceedings (r 11.06, Federal Court Rules 2011).

Where the applicant has filed a statement of claim, a defence in accordance with Defence should be filed by a respondent within 28 days of the service of the statement of claim (r 16.32, Federal Court Rules 2011).

6.5.8  Procedure in relation to general protections claim to a court


The Fair Work Act 2009 provides that a court must apply the rules of evidence and procedure applicable to civil matters in proceedings involving an alleged contravention of any of the general protections (s 551). 

Each Court’s usual rules apply: the Federal Magistrates Court Rules 2001 and the Federal Court Rules 2011.

Where proceedings are commenced without a statement of claim, the court may require the applicant to file a statement of claim or points of claim so that the proceedings can continue using pleadings.  A respondent will often seek this in order to understand the case that they are required to meet.

6.5.9  Determining whether conduct is for a prohibited reason


For an action of an employer (or other person) to be contrary to the general protections set out in Part 3-1 of the Fair Work Act 2009 that action must be taken ‘because’ of a prohibited reason.  For example, adverse action must not be taken against a person because the other person has exercised a workplace right (see section 6.4.3), or because the person engaged in industrial activity (see section 6.4.4), or because of the person’s race, colour, sex, etc (see section 6.4.5).

For an applicant, proof of the alleged prohibited reason is made easier by the inclusion in the Fair Work Act 2009 of a reverse onus of proof in relation to the issue (see further immediately below), and by fact that the reason which is alleged need only be one of the reasons for the action (see further immediately below).

The Fair Work Act 2009 prohibits adverse action taken `because’ of a prohibited reason.  In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910 North J reviewed some of the relevant authorities regarding the way in which the requisite casual connection should be applied and concluded (at [98]) that the question was one of characterisation of the particular facts of the case and that no alternative verbal formula should take the place of the statutory requirement that the conduct be carried out ‘because’ of the specified reason. See, to similar effect, the High Court's decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; (2012) 86 ALJR 1044; [2012] HCA 42, discussed further immediately below.

For the Act to be breached,  the alleged unlawful reason must be a 'substantial and operative' reason in the reasons for action,  or an 'actuating' reason: see General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605, at [616]; 51 ALJR 235; Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513, at [59]-[61]; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910, at [89]-[101] and [218]; and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; (2012) 86 ALJR 1044; [2012] HCA 42, at [104],[127].

Multiple reasons for action

In determining whether there has been a breach of the general protections set out in set out in Part 3-1 of the Fair Work Act 2009, a person will be held to take action for a particular reason if the reasons for the action include that reason (s 360).  In other words, an unlawful reason need only be one of the reasons for the action, provided it is a substantial and operative reason.

Reverse onus in relation to reasons for action

Where an application is made alleging a contravention of one of the general protections set out in set out in Part 3-1 of the Fair Work Act on the basis that a person took or is taking action for a particular reason or with a particular intent, then it is presumed for the purposes of the application that the action was or is being taken for that reason or with that intent unless the respondent proves otherwise (s 361(1)). This reverse onus does not relieve an applicant of the need to establish that the alleged prohibited reason existed, or that the alleged adverse action occurred; rather, if an applicant is able to prove both of those matter, the respondent will bear the burden of establishing that the prohibited reason was not an operative reason for taking the adverse action: Australian Licenced Aircraft Engineers Associated v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333, at [329]-[333].

In Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513, at [60] Branson J described the effect of the corresponding reverse onus provision in previous Federal industrial legislation as requiring a respondent to provide sufficient evidence to enable a positive finding to be made that none of the operative reasons for carrying out of the conduct was a prohibited reason. See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; (2012) 86 ALJR 1044; [2012] HCA 42, at [65].

In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; (2012) 86 ALJR 1044; [2012] HCA 42, the High Court held that determining the reason for conduct is a question of fact which must be answered in light of all the evidence. Direct and credible evidence from the decision maker that is reliable and accepted will ordinarily be a significant factor in an employer resisting a claim (at [45] and [65]). Further, there is no requirement for the court to search for either the objective or subjective reason for a person's actions (at [121] and [126]). Rather, whether a person has contravened the adverse action provisions of the Fair Work Act 2009 is to be answered by asking whether adverse action has been taken for a proscribed (prohibited) reason (at [44]). This requires an inquiry about what was the substantial and operative factor, potentially amongst many reasons, for the adverse action taken (at [104]).

This reverse onus in relation to the reasons for action does not apply where a court is considering orders for an interim injunction (s 361(2)).  However, the reverse onus provision may still be relevant for the purposes of determining whether there is a serious question to be tried and/or the respect strengths of each party’s case when considering whether to award an interim injunction (see section 6.5.12).

6.5.10  Advising or encouraging, or aiding and abetting contraventions


Where a first person, for a particular reason, advises, encourages, incites or coerces a second person to take action which, if taken by the second person for the first person’s reason, would be a contravention of one of the general protections in Part 3.1 of the Fair Work Act 2009, then the first person is taken to have contravened that general protection (s 362).

Further, a person who is involved in a contravention of any of the general protections is taken to have contravened the protection (s 550(1)).  This means that remedies can be sought against such persons.  A person is involved in a contravention if they (s 550(2)):

(a)  aided, abetted, counselled or procured the contravention;

(b)  induced the contravention, whether by threats, promises or otherwise;

(c)  have been in any way, directly or indirectly, knowingly concerned in the contravention; or

(d)  have conspired with others to effect the contravention.

6.5.11   Persons acting on behalf of unions or employer associations


For the purposes of the general protections set out in Part 3.1 of the Fair Work Act 2009, the Act sets out when action taken by the committee of management, officers or agents or members is taken to be action by a union or an employer association (s 363).

6.5.12  Remedies available


Where the Federal Court or the Federal Magistrates Court is satisfied that a person has contravened or proposes to contravene any of the general protections set out in Part 3.1 of the Fair Work Act 2009, the court 'may make any order the court considers appropriate' (s 545).  The orders which the court may make include:

(a)  an injunction or interim injunction to prevent, stop or remedy the contravention;

(b)  an award of compensation for loss suffered because of  the contravention; or

(c)  an order for reinstatement of a person.

Interim injunctions

In considering whether to grant an interim injunction the court will apply the usual test, requiring the applicant to show that:

(a)  there is a serious question to be tried as to the applicant’s entitlement to final relief;

(b)  the applicant would suffer injury for which damages would not be an adequate remedy; and

(c)  the balance of convenience favours the grant of an interim injunction

(see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46, at [19]). 

Section 361(2) provides that the ‘reverse onus’ prescribed by s 361(1) does not apply in relation to orders for interim injunctions (see section 6.5.9).  However, in cases decided under a corresponding provision of the (repealed) Workplace Relations Act 1996, the Federal Court has held that it may still have regard to the availability of the reverse onus provision at the final determination of the application when considering whether there is a serious question to be tried and the respective strengths of the party’s cases (the latter as part of exercising the general discretion to grant or withhold interlocutory relief) (see Police Federation of Australia v Nixon (2008) 168 FCR 340; 173 IR 132; [2008] FCA 467, at [69], followed in Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited (2009) 184 IR 333; [2009] FCA 726, at [23]-[25]). 

Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 provides an example of a case where an interim injunction preventing termination of employment was issued pending final determination of a general protections claim.

Reinstatement

There is no statement in the Act that reinstatement is to be the primary remedy, unlike the position in relation to unfair dismissal claims (see section 7.3.10). 

A relevant issue to consider will be whether a satisfactory working relationship can be re-established, and in that context the court can proceed on the basis that personal tensions created by litigation can be expected to lessen or dissipate entirely with the passage of time: see Laz v Downer Group Ltd (2000) 108 IR 244; [2000] FCA 1390, at [36].  Any difficulties envisaged with reinstatement must be balanced against the interests of an applicant who establishes that he or she was dismissed unlawfully: Laz v Downer Group Ltd (2000) 108 IR 244; [2000] FCA 1390, at [38].

The court’s powers to grant a remedy in respect of an unlawful dismissal are likely to include the power to grant back pay for the period between the dismissal and any reinstatement (see Laz v Downer Group Ltd (2000) 108 IR 244; [2000] FCA 1390, at [41]), and any appropriate orders regarding continuity of service.

Compensation

Unlike the position that applies to unfair dismissal claims (see section 7.3.10), there is no cap on the compensation that may be awarded.  Rather, the Act refers to 'compensation for loss that a person has suffered', suggesting that compensation may be awarded for all loss (economic and non-economic) that an employee has suffered.

Compensation for an unlawful dismissal may include wages earned prior to the dismissal which have not been paid: Vickery v Assetta [2004] FCA 555.  (In any event, any such unpaid wages may be able to be recovered as a related claim brought as part of the same proceedings.)

6.5.13  Civil penalties


On application, the Federal Court or the Federal Magistrates Court may also order a person who has contravened one of the general protections to pay a civil (or pecuniary) penalty (s 546).  The maximum penalty is 60 penalty units in the case of an individual, or 300 penalty units in the case of a corporation (s 539(2), s 546(2)).  A penalty unit is currently $170 (s 4AA, Crimes Act 1914).  However, contravention of the general protections is not an offence (s 549).

A court must not order that a person pay a civil penalty for contravention of one of the general protections if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct which constitutes the contravention (s 552).  Proceedings for a civil penalty are stayed if criminal proceedings are commenced in respect of an offence that is constituted by conduct that is substantially the same as the conduct in respect of which the civil penalty is sought (s 553).

The court may order the penalty, or part of the penalty, to be paid to the Commonwealth, or to a particular registered union or employer association, or to a particular person (s 546(3)).  The court may order that a penalty be paid to an applicant, or to the workers on whose behalf an application is brought: see Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360; [1999] FCA 735, at [27]-[29] and Stewart v Nickels [1999] FCA 888, at [78].

6.5.14  Representation in claims to a court


Parties to proceedings under the Fair Work Act 2009 which are brought in the Federal Court or the Federal Magistrates Court are entitled to legal representation on the same basis as other proceedings in those Courts. 

Note however that costs are not usually available in such proceedings, as discussed at section 6.5.15.

6.5.15  Costs in claims to a court


In proceedings in a court in which the court is exercising jurisdiction under the Fair Work Act 2009, a party may be ordered to pay costs only if (s 570):

(a)  the court is satisfied that the party instituted proceedings vexatiously or without reasonable cause;

(b)  the court is satisfied that the party’s unreasonable act or omission caused the other party to incur costs;

(c)  the court is satisfied that the party unreasonably refused to participate in a matter before the Fair Work Commission, and that matter arose from the same facts as the Court proceedings; or

(d)  the Federal Minister intervenes in proceedings, or the proceedings are an appeal instituted by the Minister from proceedings in which the Minister intervened, in which case a costs order against the Commonwealth may be made (s 569(3)).

Under the corresponding provisions of previous Federal industrial legislation it has been held that this protection against costs also applies to other claims made in the same proceeding, including common law claims in the accrued jurisdiction of the Federal Court (see Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120, at [86], [164], [372]-[380]), although it does not apply to a separate Federal claim that is heard together with proceedings brought under the industrial legislation (see Bahonko  v Sterjov (2008) 166 FCR 415; 247 ALR 168; 171 IR 407; [2008] FCAFC 30, at [30]-[31] and A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 812).

As to when proceedings are instituted vexatiously or without reasonable cause, see for example Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, at [264]–[265]; Imogen v Sangwin (1996) 70 IR 254, at 257 and Spotless Services Australia Ltd v Marsh [2004] FCAFC 155.  Proceedings are not instituted vexatiously or without reasonable cause merely because they do not succeed, and as a general comment orders for costs will only rarely be made when applying that test.

As to when a party’s unreasonable act or omission has caused the other party to incur costs, see for example Paras v Public Service Body Head of the Department of Infrastructure (No 3) (2006) 152 FCR 534; 153 IR 200; [2006] FCA 745 and Construction, Forestry, Mining and Energy Union v Clarke (2008) FCR 574; 176 IR 245; [2008] FCAFC 143.

6.5.16  Complaint to the Fair Work Ombudsman


Employees and other persons who believe that they are the ‘victim’ of a contravention of any of the general protections set out in Part 3.1 of the Fair Work Act 2009 may make an enquiry, or a complaint, to the Fair Work Ombudsman. 

Contact details, and compliant forms, are available on the Ombudsman’s website.  In relation to a contravention of the general protections,  the appropriate form to use is the Workplace Complaint Form.

A complaint will be allocated to a Fair Work Inspector, who is able to investigate the complaint if it cannot be resolved as a result of initial contact with the parties.  Fair Work Inspectors have the power to enter premises where work is being performed, and while on such premises to inspect any work, interview any person, require a person to produce records or documents and make copies of any record or document (s 708, s 709).

The Fair Work Ombudsman may also recommend and/or arrange a mediation conducted by a Fair Work Ombudsman mediator.

The Fair Work Ombudsman’s functions include to commence proceedings to enforce the Act, and in appropriate cases to represent employees or outworkers who are or may become a party to proceedings under the Act (s 682).  As an alternative to commencing proceedings, the Fair Work Ombudsman may accept a written undertaking given in relation to a contravention of the Act (s 715).

Employees or other persons who believe that they have a good claim for breach of the general protections, but who elect to initially make a complaint to the Fair Work Ombudsman, should bear in mind the time limit that applies to commencing their claim.

6.6  Further protection against unlawful termination in the Fair Work Act

6.6.1  Introduction to the further protection against unlawful termination


In addition to the ‘general protections’ which are discussed at section 6.4, and which provide the majority of Australian employees with protection against unlawful dismissal and other forms of unlawful adverse action, the Fair Work Act 2009 also contains additional and overlapping protections against unlawful termination in Part 6-4 of the Act.  

The unlawful termination provisions in Part 6-4 of the Act are based on the external affairs power in the Constitution, and apply to all Australian (ie national and non-national system) employees (s 770, s 771).  However, a dismissed employee may not make an unlawful termination claim under Part 6-4 of the Act if he or she is entitled to make a claim relying on the general protections in Part 3-1 of the Act (s 723).  For this reason, the main relevance of the unlawful termination provisions in Part 6-4 of the Act is to protect those employees who are not 'national system employees' (see section 1.4 for discussion of 'national system employees').

Part 6-4 of the Fair Work Act 2009 prohibits the termination of an employee for a range of specified reasons (see section 6.6.2).    Where there has been a breach the dismissed employee is usually required to first make an application to the Fair Work Commission (see section 6.6.3).  The Fair Work Commission will seek to resolve the matter by conducting a conference, although it cannot make a binding determination in relation to the matter. 

Where the Fair Work Commission is unable to resolve the matter, or if the employee seeks an interim injunction, the dismissed employee can commence proceedings in the Federal Court or the Federal Magistrates Court (see section 6.6.4 and following).  Where a breach is established (or where it is established that an employer proposes to unlawfully terminate an employee) the court may make any order it considers appropriate, including reinstatement, an injunction and/or compensation (see section 6.6.7).  Civil penalties may also be ordered. 

Costs will not usually be available in unlawful termination claims in either the Fair Work Commission (see section 6.6.2) or the courts (see section 6.6.8). 

As an alternative to bringing a claim to the Fair Work Commission or a court, an unlawfully terminated employee may make a complaint to the Fair Work Ombudsman, who may investigate and seek to resolve such matters (see section 6.6.9).

6.6.2  Employment must not be terminated for a prohibited reason


An employer must not terminate an employee’s employment for any of the following reasons, or for reasons that include any of the following reasons (s 772):

(a)  temporary absence from work because of illness or injury in circumstances where (reg 6.04, Fair Work Regulations 2009):

(i)  the employee provides a medical certificate, or a statutory declaration about the illness or injury, within 24 hours of the commencement of the absence or such longer period as is reasonable; or

(ii)  the employee is required by an award or an agreement to notify the employer of the absence and to substantiate the reasons for the absence, and complies with that obligation,
however, this does not apply where the employee’s absence exceeds 3 months, or a total of 3 months in any 12 month period (whether for the same illness or injury or separate illnesses or injuries), and the employee is not on paid personal leave for that whole absence because of a personal illness or injury;

(b)  trade union membership or participation in trade union activities outside working hours or with the employer’s consent during working hours;

(c)  non-membership of a trade union;

(d)  seeking office as, or acting or having acted as, an employee representative;

(e)  filing a complaint, or participating in proceedings, against an employer involving an alleged violation of laws or recourse to competent authorities;

(f)  race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin – however this does not prohibit termination if the termination is based on the inherent requirements of the position or if the employee is a member of the staff of a religious institution and the termination is in good faith to avoid injury to the religious susceptibilities of adherents of that religion (s 772(2));

(g)  absence from work during maternity leave or other parental leave (see also s 772(3) if the termination occurs because the position no longer exists in circumstances connected to the employee’s maternity or parental leave); or

(h)  temporary absence from work to engage in emergency management activity, where the absence is reasonable in all the circumstances.

An employee whose employment is terminated in breach of this provision can make an application to the Fair Work Commission (see section 6.6.2).  If that application does not resolve the matter, or if the employee seeks an interim injunction, the employee may commence proceedings in the Federal Court or the Federal Magistrates Court (see section 6.6.3). 

6.6.3  Application to the Fair Work Commission


An employee or his or her union may make an application to the Fair Work Commission if it is alleged that the employment was terminated in breach of the prohibition on unlawful termination set out at section 6.6.2 (s 773).

An employee or his or her union may not make such an application if the employee is entitled to make a general protections claim (see section 6.4) in relation to the termination (s 723).  Further, an employee is not entitled to make such an application if another application or complaint has been made by or on behalf of the employee in relation to the same termination, unless the other complaint has been withdrawn or failed for lack of jurisdiction (see section 6.3).

Time limit

An application must be made within 60 days after the employment was terminated, or within such further period as the Fair Work Commission allows if satisfied that there are exceptional circumstances, taking into account criteria specified in the Fair Work Act 2009 (s 774).  Some commentary about a similar power to grant an extension of time in relation to unfair dismissal claims can be found at section 7.3.7.

Process for making application

An application is made using Application for FWA to deal with an unlawful termination dispute.  The form requires a brief statement as to why the termination was unlawful.

An application may be lodged in person at a the Fair Work Commission office, or by post or facsimile, or by email (see r 20Fair Work Commission Rules 2010).

An application must be accompanied by the application fee, currently $64.20 (s 775, and reg 6.05, Fair Work Regulations 2009).  Details of the possible methods of payment are included on the Application Form.  Alternatively, an application for waiver of the application fee may be lodged using the Application for waiver of application fee.  The application fee will be waived if the Fair Work Commission is satisfied that the applicant would suffer serious hardship if required to pay the fee (reg 6.05(7) Fair Work Regulations 2009). 

An application must be served on the respondent as soon as practicable (r 8.1, r 9.1Fair Work Commission Rules 2010).  Rule 9 and r 10 of the Fair Work Commission Rules 2010 deal with the methods of effecting service.

Response to unlawful termination claim to the Fair Work Commission

An employer which is served with a unlawful termination claim must file and serve a response to the application within 7 days Employer's response to application for FWA to deal with an unlawful termination dispute.

Procedure in claims to the Fair Work Commission

Where an employee makes an application to the Fair Work Commission in relation to an alleged unlawful termination, the Fair Work Commission must conduct a conference to deal with the dispute (s 776).

Where the Fair Work Commission conducts a conference, it may direct a person to attend the conference (s 592(1)); see also s 590 and r 18Fair Work Commission Rules 2010).  Such conferences will generally be conducted in private (s 592(3)). The Fair Work Commission may try to resolve the matter by mediation or conciliation, or by making a recommendation or expressing an opinion (s 595(2)), but it does not have the power to make a binding determination or award remedies.

If the Fair Work Commission considers that a court application in relation to the matter would not have a reasonable prospect of success, it must advise the parties accordingly (s 778).

If the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it must issue a certificate to that effect (s 777).  Such a certificate is necessary for an applicant who wishes to bring the matter to a court, except where an applicant seeks an interim injunction (see 6.6.4).

Representation and costs

The limitations on representation by a lawyer or paid agent in matters before the Fair Work Commission, and a link to the required ‘Notice of Appearance’, are given at section 6.5.5.  An applicant may be represented by a lawyer or paid agent for the purposes of preparing and lodging a written application or response (r 17AFair Work Commission Rules 2010).

In general, a party must bear its own costs in relation to a dispute before the Fair Work Commission (s 611).  However, the Fair Work Commission may order a party to bear some or all of the costs of another person if (s 611(2)):

(a)  the Fair Work Commission is satisfied that the party made or responded to the application vexatiously or without reasonable cause; or

(b)  the Fair Work Commission is satisfied that it should have been apparent that the party’s application, or the party’s response to the application, had no reasonable prospects of success.

Where the Fair Work Commission has allowed a party to be represented by a lawyer or a paid agent it may make an order for costs against the lawyer or paid agent in limited circumstances (s 780).

An application for costs must be made within 14 days after the Fair Work Commission finishes dealing with the matter (s 781).  The application should be made using Application for costs.  A schedule of costs has been prescribed for the purposes of orders for costs against lawyers and paid agents (reg 6.06 and Schedule 3.1, Fair Work Regulations 2009), and in awarding such costs the Fair Work Commission must not award costs in relation to an item that appears in the schedule at a rate or of an amount greater than that set out in the schedule.

6.6.4  Claim to Federal Court or Federal Magistrates Court


An employee who considers that he or she has been unlawfully terminated in breach of s 772 of the Fair Work Act 2009 (or who considers that his or her employer proposes to unlawfully terminate the employment in breach of that section) may bring an application to the Federal Court or the Federal Magistrates Court (s 539).

Such an application may also be made by a union on behalf of an employee if the union is entitled to represent the industrial interests of the employee (s 539(2), s 540(2), (6)), or by a Fair Work Inspector, although an application may not be able to be made by an Inspector where an undertaken has been given, or a compliance notice has been issued, in relation to the contravention (s 715(4), s 716(4A)).

Such an application can also include any additional or alternative claim under either Court's accrued jurisdiction.  That is, it can include any other claim which forms part of the same controversy or which arises out of common transactions and facts.  For example, in an unlawful termination claim it will also be possible to include a claim that the termination was a breach of the applicable employment contract. 

An applicant need not file a genuine steps statement if the proceedings are brought wholly under the Fair Work Act 2009, as such proceedings are excluded proceedings for the purposes of the Civil Dispute Resolution Act 2011 (s 6, s 16, Civil Dispute Resolution Act 2011).  Otherwise, an applicant must file a genuine steps statement in accordance with the rules of the Federal Court or the Federal Magistrates Court in relation to those parts of the proceedings which are not excluded proceedings.

Court proceedings alleging an unlawful dismissal will be subject to the restrictions on awards of costs which apply to proceedings brought under the Fair Work Act 2009 (see section 6.5.15).  Where an additional claim is included with such an unlawful dismissal claim, those costs limitations are likely to also apply to the additional claim (see section 6.5.15).

An employee or his or her union may not make such an application if the employee is entitled to make a general protections claim (see section 6.4) in relation to the termination (s 723).  Further, an application may not be made if the employee has commenced an unfair dismissal claim, or any other action or complaint in relation to the dismissal, which has not been withdrawn or failed for want of jurisdiction (see section 6.3). 

Certificate from the Fair Work Commission is usually required

An employee (or his or her union) must not commence court proceedings in relation to an alleged unlawful termination unless the Fair Work Commission has issued a certificate certifying that all reasonable attempts to resolve the matter have been, or are likely to be, unsuccessful (s 779).  In other words, in the usual case it is necessary to first bring the matter to the Fair Work Commission in order to seek to resolve the matter (see section 6.6.3 regarding applications to the Fair Work Commission).

However, a certificate from the Fair Work Commission is not required if the unlawful termination claim includes an application for an interim injunction (s 779).  For example, an employee who considers that he or she is about to be unlawfully terminated may commence Court proceedings seeking an interim injunction to prevent the termination from taking effect until the proceedings are finally determined without first making an application to the Fair Work Commission.  See section 6.5.12 for commentary on when an interim injunction may be available.

Time limit

Where an applicant requires a certificate from the Fair Work Commission (ie in all instances other than where an interim injunction is sought) an application to the Federal Court or the Federal Magistrates Court must be made within 14 days of the issue of the certificate, or such further period as the court allows (s 779(2)).  The Fair Work Act 2009 contains a note stating that the decision in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 sets out principles relating to the exercise of a similar discretion under previous Federal legislation.  Some comments about a similar power to grant an extension of time in relation to unfair dismissal applications can be found at section 7.3.7.

Federal Court or Federal Magistrates Court?

Some commentary discussing whether to bring an application in the Federal Court or the Federal Magistrates Court can be found at section 6.5.6.

Process for making application – Federal Magistrates Court

An application to the Federal Magistrates Court should be made in the Court’s Fair Work Division using the form entitled Application - Fair Work Division, and be accompanied by Claim under the Fair Work Act 2009 alleging unlawful termination of employment (r 45.07, Federal Magistrates Court Rules 2001).  All forms are available from the Court’s website.

Documents may be filed with the Federal Magistrates Court in person, by post, by facsimile or electronically (r 2.05, Federal Magistrates Court Rules 2001).  Information about electronic lodgement of documents, which requires a user to be registered with the federal courts' eLodgement system, is available on the Court's website.

An application fee, currently $64.20, is payable for making an unlawful termination application to the Federal Magistrates Court (reg 4 and Schedule 1, Federal Magistrates Regulations 2000). Certain classes of person are exempt from having to pay fees, and a person may also seek an exemption on the basis that payment would cause financial hardship, or alternatively payment may be deferred having regard to the financial circumstances of the applicant. Further details, and forms for seeking a fee exemption  or deferral are available via the Federal Magistrates Court's website.

Service of Federal Magistrates Court applications is dealt with in Part 6 of the Federal Magistrates Court Rules 2001.

Process for making application – Federal Court

An application to the Federal Court of Australia should be made using Originating application under the Fair Work Act 2009 alleging unlawful termination of employment and, if required, the certificate issued by the Fair Work Commission (r 34.04, Federal Court Rules 2011).  The application should be made in the Court’s Fair Work Division (see s13(3) Federal Court of Australia Act 1976).
 
Documents may be filed with the Federal Court in person, by post or DX, by facsimile or by electronic filing.  Further details are provided on the Federal Court’s website.

An application fee is payable for making an application to the Federal Court (reg 4 and Schedule 1, Federal Court of Australia Regulations 2004).  The fee is currently $64.20. Certain classes of persons are exempt from having to pay fees, and a person may also seek an exemption on the basis that payment would cause financial hardship, or alternatively payment may be deferred having regard to the financial circumstances of the applicant. Further details, and forms for seeking a fee exemption or deferral are available via the Federal Court's website.

Service of Federal Court applications is dealt with in Part 10 of the Federal Court Rules 2011.

6.6.5  Determining whether the termination is for a prohibited reason


Section 772 of the Fair Work Act 2009 prohibits terminations for a prohibited reason, or for reasons which include a prohibited reason.

For an applicant, proof of a prohibited reason is made easier by:

(a)  the fact that the reason which is alleged need only be one of the reasons for the termination; and

(b)  the inclusion in the Act of a reverse onus of proof in relation to unlawful termination applications (s 783).

This reverse onus in relation to the reasons for termination does not apply where a court is considering orders for an interim injunction (s 783(2)), although it may still be relevant to determining whether to grant an interim injunction (see commentary on similar the provision applicable to general protections claims at section 6.5.12).  
 
Commentary on the corresponding provisions applicable to general protections claims is provided at 6.5.9.

6.6.6  Aiding and abetting contraventions


A person who is involved in a contravention of the prohibition against unlawful terminations is taken to have contravened the provision (s 550(1)).  This means that remedies can be sought against such persons.  See further at section 6.5.10.

6.6.7  Remedies available and civil penalties


Where the Federal Court or the Federal Magistrates Court is satisfied that an employer has unlawfully terminated an employee, or proposes to unlawfully terminate an employee, the court 'may make any order the court considers appropriate' (s 545).  The orders which the court may make include:

(a)  an injunction or interim injunction to prevent, stop or remedy the contravention;

(b)  an award of compensation for loss suffered because of  the contravention; or

(c)  an order for reinstatement of a person.

Unlike the position that applies in relation to unfair dismissal claims (and that applied under previous Federal legislation in relation to unlawful termination claims) there is no cap on the compensation that may be awarded.

Commentary on the remedies that may be awarded by a court, in the analogous context of general protections claims, is provided at section 6.5.12.

Civil penalties

On application, a court may also order an employer who has unlawfully terminated an employee to pay a civil (or pecuniary) penalty (s 546).  Further commentary on civil penalties is provided at section 6.5.13.

6.6.8  Representation and costs in claims to a court


Parties to proceedings under the Fair Work Act 2009 which are brought in the Federal Court or the Federal Magistrates Court are entitled to legal representation on the same basis as other proceedings in those Courts. 

In proceedings in a court in which the court is exercising jurisdiction under the Fair Work Act 2009 a party may only be ordered to pay costs in limited circumstances (s 570): see section 6.5.15.

6.6.9  Complaint to the Fair Work Ombudsman


Employees who believe that they are the ‘victim’ of an unlawful termination in breach of s 772 of the Fair Work Act 2009 may make an enquiry, or a complaint, to the Fair Work Ombudsman. 

Contact details, and compliant forms, are available on the Fair Work Ombudsman’s website.  See section 6.5.16 for further commentary on the Fair Work Ombudsman’s functions and powers.

6.7  Special protections where 15 or more employees are made redundant


The Fair Work Act 2009 places additional obligations on employers who decide to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons which include such reasons.  In other words, these additional obligations will apply where an employer decides to make 15 or more employees redundant. 

A breach of these obligations will allow an employee or his or her union to seek orders remedying the breach, as described further immediately below.

These additional protections are set out in Part 3-6 of the Fair Work Act 2009, which applies to 'national system employees' and 'national system employers' (see section 1.4).  However, there are ‘mirror provisions’ in Part 6-4 of the Act which apply to all Australian employees.  In both cases these protections do not apply to certain classes of employees (see immediately below).

Obligation to notify Centrelink

Where an employer has decided to make 15 or more employees redundant the employer must give a written notice to Centrelink in accordance with the prescribed form (s 530, s 785; reg 3.30, reg 6.07 Fair Work Regulations 2009).  The notice must be given as soon as practicable after making the decision and in any event before dismissing any employee in accordance with the decision.

An employer must not dismiss an employee unless it has complied with this obligation (s 530(4), s 785(4)).  If it does dismiss an employee without complying, an affected employee, or a union which is entitled to represent an affected employee, or a Fair Work Inspector, may apply to the Federal Court or the Federal Magistrates Court for orders in relation to the breach (s 539, s 540).  The court will have the power to make 'any order the court considers appropriate' (s 545), which can include an order requiring the employer not to dismiss the employees except as permitted by the order, but does not otherwise include an order granting an injunction (s 530(5), s 785(5)).

A breach of this obligation can also lead, on application, to a court imposing a civil penalty (s 539, s 546).

Fair Work Australia may make remedial orders unless the employer notifies and consults with relevant unions

Where an employer has decided to make 15 or more employees redundant, Fair Work Australia will have the power to make remedial orders unless:

(a)  as soon as practicable after making the decision, and in any event before dismissing the employees, the employer notifies each registered union of which any of the employees is a member of the proposed dismissals including certain matters regarding those dismissals (s 531(2), s 786(2)); and

(b)  as soon as practicable after making the decision, and in any event before dismissing the employees, the employer gives each registered union of which any of the employees is a member the opportunity to consult the employer on measures to avert or minimise the proposed dismissals, and measures to mitigate the effects of the proposed dismissals (s 531(3), s 786(3)).

An employer may have decided to dismiss 15 or more employees even if it has not decided how many employees will be made redundant: CPSU, the Community and Public Sector Union v Vodafone Network Pty Ltd [2001] AIRC 1189, at [28].  Further, an employer may have decided to dismiss 15 or more employees even if the decision is made or implemented in more than one step, each involving less than 15 employees: Australian Workers' Union v BHP Billiton Iron Ore Pty Ltd [2003] AIRC 43

Where such notification and/or consultation does not occur then Fair Work Australia may make whatever order it considers appropriate in order to put the employees and each relevant union in the same position as if the notification and/or consultation had occurred (s 532, s 787).  However, Fair Work Australia must not make any order (s 532(2), s 787(2)):

(a)  reinstating employees;

(b)  requiring the withdrawal of a notice of termination;

(c)  requiring the payment of compensation in lieu of reinstatement;

(d)  requiring the payment of severance pay;

(e)  disclosing the employer’s confidential or commercially sensitive information in the absence of undertakings not to disclose that information; or

(f)  disclosing an employee’s personal information in the absence of consent by the employee.

Fair Work Australia’s power to make orders will not arise unless the employer could reasonably be expected to have known that one or more of the employees to be dismissed were members of a registered union (s 532(1), s 787(1)).

An application to Fair Work Australia for such orders may be made by one of the employees to be dismissed, or by a registered union entitled to represent any of those employees (s 533, s 788).  As no specific form is provided, such an application should be made using Application (r 6, Fair Work Australia Rules 2009).

These protections do not apply to certain classes of employees

The obligations set out in this paragraph do not apply in relation to certain classes of employees, including (s 534, s 789):

(a)  employees engaged for a specified period of time or a specified task;

(b)  employees dismissed because of serious misconduct;

(c)  casual employees; and

(d)  certain daily hire and weekly hire employees working in the construction industry or the meat industry,

although not if a substantial purpose of engaging the employee on that basis was to avoid these obligations.

6.8  Laws applicable to State public sector and local government employees


Many State public sector and local government employees will not be 'national system employees' (see section 1.7).

In the case of State public sector and local government employees who are 'national system employees', all of the protections discussed in this Chapter will apply.

A number of general comments can be made about the extent to which the protections discussed in this Chapter, or similar provisions of State laws, apply to State public sector and local government employees who are not 'national system employees'.

First, the further protection against unlawful termination (discussed at section 6.6), and the special protections where 15 or more employees are made redundant (discussed at section 6.7) will apply in any event, as those provision rely for their constitutional validity on the external affairs power and extend to all Australian employees.

Second, whether the general protections set out in Part 3-1 of the Fair Work Act 2009 (discussed at section 6.4) will apply will depend in any given case on the details of the conduct complained of, including who has engaged in that conduct and which entities that conduct affects (see section 6.4.2). 

Third, if the general protections do not apply to the conduct in question, then the affected employee may have the benefit of any State industrial legislation dealing with unlawful termination, freedom of association and victimisation.  For example, in New South Wales s 210 of the Industrial Relations Act 1996 (NSW) provides that employers must not victimise employees because of their union membership or industrial activities, and s 213 of the same Act provides that the State’s Industrial Relations Commission may make orders enforcing that protection.

6.9  Laws applicable to other Western Australian employees


Western Australia has not referred to the federal government the power to make industrial laws, and accordingly there will be some private sector employees in Western Australia who are not 'national system employees' (see section 1.4.4). 

In the case of these ‘residual’ Western Australian employees a number of general comments can be made about the extent to which the protections discussed in this Chapter, or similar provisions of State laws, apply.

First, the further protection against unlawful termination (discussed at section 6.6), and the special protections where 15 or more employees are made redundant (discussed at section 6.7) will apply in any event, as those provision rely for their constitutional validity on the external affairs power and extend to all Australian employees.

Second, whether the general protections set out in Part 3-1 of the Fair Work Act 2009 (discussed at section 6.4) will apply will depend in any given case on the details of the conduct complained of, including who has engaged in that conduct and which entities that conduct affects (see section 6.4.2). 

Third, if the general protections do not apply to the conduct in question, then the affected employee may have the benefit of the freedom of association provisions in Part VIA (s 96A and following) of the Industrial Relations Act 1979 (WA).



© Copyright Paul Moorhouse and Gerard Boyce, 2010, Sydney. All rights reserved.Last Updated: 07/03/2013


Disclaimer
*Preview Only
Smokeball ABN: 37 133 794 117
Smokeball Australia | Smokeball Malaysia
© 2014 Terms of Use
Sydney: Level 8, 207 Kent Street, Sydney NSW 2000
Melbourne: Level 8, 45 William Street, Melbourne VIC 3000
Brisbane: Level 1, 365 Turbot Street, Spring Hill QLD 4000
MENTOR

Contact Us

Your name

Your email

Your phone

Subject

Comments

Send

Smokeball Terms & Conditions

Smokeball does not invite reliance upon, nor accept responsibility for, the information it provides.

Smokeball makes every effort to provide a high quality service. However, neither Smokeball nor the providers of data on Smokeball, give any guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of the information provided.

Users should confirm information from another source if it is of sufficient importance for them to do so.

Product Feedback

Found a problem with this product, whether it be spelling, formatting or content, we'd love to hear from you!

First Name

Last Name

Email

Related to:

Subject

Feedback

Send

Review -

Help us ensure that each guide is relevant, current and meets expectations of all users.

Your Details:

First Name:

Last Name:

Email:

Rating

Review

Headline:

Content:

Send

Start your eBook download here

Your email:

Send

Request an eBook

The eBook for this publication is not ready. You can help set our priorities for eBooks by informing us of your needs below.

Email:

Comments:

Send

You have reached your download limit for this eBook

Download only available with recurring subscriptions

The eBook for this publication is not available for your current access (expires ). You can upgrade to a recurring subscription now for access to eBooks.

Subscription

Upgrade Now

Disclaimer

This Work is a precedent or guide prepared by the Author and is not legal advice. The facts of each case will be different and Users must satisfy themselves that this Work is appropriate for the particular case or circumstances for which they intend to use the Work. Neither the Author nor Smokeball is providing legal advice nor do they warrant that this Work is entirely free of defects or fit for any specific purpose and neither the Author nor Smokeball accept any liability for any errors or omissions in the Work and any loss or damages resulting from or connected with the use of the Work. The Author and Smokeball recommend that Users be familiar with the applicable laws and legal procedures relating to the use of the Work, or otherwise should seek legal advice, before using the Work. Smokeball accepts no liability for the publication of the Work by the Author on the Smokeball System.


Links to Third Party Websites

Smokeball contains links to third party websites which are external to Smokeball. Smokeball makes no warranties and accepts no liability for any links contained within Smokeball to third party internet sites; the content and/or the accuracy, correctness, currency and/or reliability of such content therein; or any consequence of acting upon the contents of any website which is not owned/operated by Smokeball. Smokeball does not endorse the content, or the use, of such websites, material or content linked from or to this website. Users of links provided within Smokeball are responsible for being aware of which organisation is hosting the website they visit. Views or recommendations provided in linked websites do not necessarily reflect those of Smokeball.

Submit your legal or procedural question by completing the form below. You can expect to receive a confidential reply via email usually within 24 hours.


Account

Contact Name

Contact Email

Area of Law

Question

NOTICE: Your question and our answer may be published anonymously through the Mentor Knowledge Base on the By Lawyers For Lawyers website. Questions and answers are used for educational purposes only and any identifying information is removed prior to publication. If you would prefer your question not be published, please advise By Lawyers For Lawyers at askus@bylawyers.com.au.

Submit Question
Mentor
provided by: