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FAQ

Here we will attempt to answer as many frequently asked questions as possible to assist in your understanding of your workplace rights and rights in the Human Rights jurisdiction, including sexual harassment, bullying and other general advocacy related topics.

  • What do I need to consider if I am giving evidence to the Fair Work Commission?
    Introduction See Fair Work Act ss.590 and 591 Section 590 of the Fair Work Act 2009 (the Fair Work Act) outlines the ways in which the Fair Work Commission may inform itself including by: requiring a person to attend the Commission requiring written and oral submissions requiring a person to provide copies of documents taking evidence under oath or affirmation conducting inquiries or undertaking research, or holding a conference or a hearing. Section 591 of the Fair Work Act states that the Commission is not bound by the rules of evidence and procedure (whether or not the Commission holds a hearing). Although the Commission is not bound by the rules of evidence, they are relevant and cannot be ignored where it would cause unfairness between the parties.[1] The rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’.[2] Commission members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’.[3] Commission members are ultimately expected to get to the heart of the matter as quickly and effectively as possible, without unnecessary technicality or formality.[4] Self-incrimination A person may be required by the Commission to attend before the Commission and answer a question or produce specific documents. Where a person refuses or fails to answer the question or produce the documents they commit an offence with a penalty of imprisonment.[5] Where a person has a reasonable excuse not to answer the question or provide the document, they are not required to do so.[6] A person, including a witness, has a privilege against self-incrimination and this could provide a reasonable excuse. That is, a person is not required to answer a question or provide a document if they believe that the evidence they will provide will tend to incriminate them. This means that if they believe on reasonable grounds that their evidence will tend to prove that they have committed an offence, they are not required to answer that question where there is a ‘real and appreciable danger of conviction’.[7] The same may apply in respect to a risk of exposure to a civil penalty.[8] The Commission will not draw an adverse inference from the failure to provide that evidence. This means that the Commission cannot assume that the witness did not provide the evidence or the document solely on the basis that it would have harmed their case before the Commission. However, the Commission will need to determine the application based on the evidence that is before it. This means that a determination will be made in the matter without the evidence the witness would otherwise be providing if they had not relied on the privilege against self-incrimination. Whether a matter before the Commission will be adjourned or otherwise delayed because one or more witnesses may assert a privilege against self-incrimination was considered by a Full Bench of the Commission in Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar.[9] The Full Bench confirmed that McMahon v Gould[10] sets down non-exhaustive guidelines and that it is necessary for the Commission to determine what justice requires in the circumstances.[11] A corporate entity does not have a privilege against self-incrimination. Case example Following rules of evidence – employer used illegally obtained evidence for allegation of theft Walker v Mittagong Sands Pty Ltd T/A Cowra Quartz [2010] FWA 9440 (Thatcher C, 8 December 2010). Facts The employee was accused of stealing oil from the employer. After becoming suspicious that the theft had occurred, the employer searched for and took samples of oil from the employee’s vehicle without the employee’s authority in order to have it tested. Outcome It was held that the evidence of the sample was unlawfully obtained and that the evidence should not be admitted. Relevance Privacy in the workplace is an important issue. Security checks of bags, parcels, lockers and the like (including containers in personal vehicles) should not take place unless the employee concerned is present, or alternatively, the employee has given permission for such a search to take place in his or her absence. An employee should be able to have a union delegate or another nominated employee of the employee’s choice present during the search. References and citations [1] Re Construction, Forestry, Mining and Energy Union PR935310 (AIRC, Ross VP, 25 July 2003) at para. 36. [2] Australasian Meat Industry Employees’ Union, The v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847 (Lawler VP, Hamberger SDP, Gay C, 17 June 2011) at para. 28, [(2011) 209 IR 1]; citing Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union PR948938 (AIRCFB, Ross VP, Duncan SDP, Bacon C, 12 July 2004) at paras 47 – 50, [(2004) 143 IR 354]. [3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 (19 April 2011) at para. 25, [(2011) 192 FCR 78]; Fair Work Commission Member Code of Conduct (1 March 2013), at p. 2. [4] ibid. [5] Fair Work Act s.677(3). [6] Fair Work Act s.677(4). [7] Sorby v Commonwealth [1983] HCA 10 (18 March 1983) at para. 11, [(1983) 152 CLR 281]. [8] Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 (18 March 1983), [(1983) 152 CLR 328]; Police Service Board v Morris [1985] HCA 9 (27 February 1985), [(1985) 156 CLR 397]; Valantine v Technical and Further Education Commission [2007] NSWCA 208 (20 August 2007); but cf. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 (7 November 2002) at para. 31, [(2002) 213 CLR 543]; Rich v Australian Securities and Investments Commission [2004] HCA 42 (9 September 2004) at para. 24, [(2004) 220 CLR 129]; Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5 (30 January 2018). [9] Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar [2018] FWCFB 1255 (Ross J, Binet DP, Platt C, 5 March 2018). [10] McMahon v Gould (1982) 7 ACLR 202 (19 February 1982). (1982) 7 ACLR 202 (19 February 1982). [11] Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar [2018] FWCFB 1255 (Ross J, Binet DP, Platt C, 5 March 2018) at para. 49.
  • What does "without prejudice" mean?
    The principle underlying a "without prejudice" meeting is to create a space where both parties can engage in candid, open discussions aimed at resolving an existing dispute. The objective is to facilitate negotiations without the risk that statements made during the conversation will be used against either party in subsequent legal proceedings. Therefore, both parties are generally encouraged to speak freely, offer concessions, and explore potential solutions. Recording a "without prejudice" meeting seems incongruent with this principle for several reasons: 1. Chilling Effect on Open Discussion: The knowledge that the meeting is being recorded may discourage parties from being fully candid. This can impede the free flow of dialogue, which is essential for resolving disputes. 2. Integrity of the 'Without Prejudice' Principle: Recording the meeting could raise questions about the commitment to keeping the conversation non-admissible in court. This could jeopardize the very protection that the "without prejudice" label is intended to provide. 3. Data Protection Concerns: Recording conversations may implicate data protection regulations, requiring explicit consent from both parties and a stated purpose for collecting such data. Failure to adhere to these regulations could introduce additional legal complexities. 4. Perceived Imbalance of Power: In an employment setting, if the employer initiates the recording without mutual agreement, this could create a perception of power imbalance, potentially impacting the employee's willingness to participate genuinely in the discussion. 5. Undermining Trust: Trust is a critical component in any negotiation, and the act of recording may be perceived as a lack of trust, which could in turn affect the quality and outcome of the dialogue. Given the delicate nature of these discussions and the legal protections they are intended to provide, recording a "without prejudice" meeting generally appears inconsistent with its purpose. If any party feels that a record of the meeting is necessary, this should be agreed upon explicitly, preferably in writing, prior to the meeting, and both parties should be clear on how the recording will be used or stored. Nonetheless, legal consultation is often advisable to ensure that the principles and protections of a "without prejudice" conversation are fully understood and upheld by all involved.
  • How can I get help with a workplace bullying issue?
    Many workplaces have policies and processes to prevent and respond to bullying. Where it is safe, use these to try and resolve the problem (sometimes called a ‘grievance’) before going to the Fair Work Commission. When a worker asks us for help to stop bullying at work, this is the start of a legal process. Another interim measure could be to speak confidentially to one of our Advocates about your concerns. The steps on this page set out the usual process we follow for this type of case. Some cases are different. We will tell you if we're going to follow a different process for your case. We aim to discuss the case with everyone involved within 24 hours of receiving the enquiry. Complete the priority intake form on the bottom of this page for the fastest access to one of our Advocates.
  • What do I need to consider before lodging an unfair dismissal?
    What outcome or result do you want? Before you start the legal process, understand what results are possible. The outcome or remedy can be different if you: settle during the conciliation process win the case at a hearing or conference See the options at Possible results of unfair dismissal claims. Do you have the information we will ask for? Remember: You can apply even if you don't have all the information yet. It is important to get your application to us within 21 days of the date of your dismissal. You can send us more details and supporting documents after you have applied. We will ask you for names, dates, contact details and information about the dismissal. The process is easier if you gather these details before you start: contact details for you the legal name of your former employer, which may be on your payslip contact details for someone at your former employer's workplace who we can send your application to the dates you started work and finished work for the employer the date your employer told you about your dismissal the reasons your employer gave you for your dismissal, including supporting documents if you have them – such as a copy of the email or letter that shows they dismissed you the reasons (‘arguments’) you believe the dismissal was unfair what result or outcome you want from the case.
  • What are my options about unfair dismissal?
    Unfair Dismissal Application: The most common option is to lodge an unfair dismissal application with the Fair Work Commission. This involves submitting a formal application within the specified time frame (usually 21 days from the date of termination) and providing detailed information about the circumstances of the dismissal. The Commission will then assess the application and may facilitate a conciliation process between the parties. Jurisdictional Objection: If you believe that the Fair Work Commission does not have jurisdiction to hear your unfair dismissal claim, you can raise a jurisdictional objection. This may be applicable in certain situations, such as if you were not an employee covered by the Fair Work Act, if your employment period did not meet the minimum requirements, or if the dismissal occurred during a probationary period. Procedural Fairness: If you can demonstrate that the dismissal was procedurally unfair, you can appeal on those grounds. This means showing that your employer did not follow appropriate procedures during the dismissal process, such as failing to provide you with a valid reason for termination, denying you an opportunity to respond to allegations, or not allowing you to have a support person present during meetings. Harsh, Unjust, or Unreasonable Dismissal: You can appeal if you believe the dismissal was harsh, unjust, or unreasonable. This involves demonstrating that the consequences of the dismissal were disproportionate to any alleged misconduct or performance issues. You may need to provide evidence to support your claim, such as demonstrating that other employees in similar situations were not dismissed or that alternative disciplinary actions could have been taken. Discrimination or Adverse Action: If you believe that the dismissal was based on discrimination, such as age, gender, race, or any protected attribute, you can appeal on grounds of unlawful discrimination or adverse action. This requires presenting evidence to support your claim of discriminatory motives behind the dismissal. It's important to note that each case is unique, and the specific options available to you may vary based on the circumstances. It is recommended to seek professional advice or consult with an employment lawyer or advocates who can provide tailored guidance for your situation and assist you throughout the appeals process. Need help? gethelp@1800ADVOCATES.au or call us on 1800 238 622.
  • What is the minimum employment period to claim for unfair dismissal?
    Employees need to be employed for at least 6 months before they can apply for unfair dismissal. Employees working for a small business need to be employed for at least 12 months before they can apply. If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
  • Am I eligible to apply for unfair dismissal?
    Before you apply for unfair dismissal, it's important to check whether you are eligible to make an application. Many workers are protected from unfair dismissal. You should check if you are ready to apply for unfair dismissal. Your eligibility depends on several things including: whether you have been dismissed whether you are an eligible employee who you worked for how long you worked for whether you are lodging within the 21 day timeframe. We explain who the law protects from unfair dismissal. If you are not sure you qualify, answer some questions about your situation. This can help you understand the options that may be available.
  • Do I need to respond to a termination letter?
    In situations where you receive a termination letter from your employer stating that you have been made redundant, it is generally advisable to respond in some form, even if it is not explicitly required by law. Responding to the termination letter allows you to: Seek clarification: If you have any questions or need further information regarding the redundancy, responding to the letter provides an opportunity to seek clarification from your employer. This can help you understand the reasons behind the decision and any entitlements you may have. Confirm understanding: By responding to the termination letter, you can acknowledge that you have received and understood the communication. This can help ensure that there is clear communication between you and your employer. Document the communication: Responding to the letter in writing creates a record of your response, which can be valuable for any future legal or employment-related proceedings. It is recommended to keep copies of all correspondence related to your termination. While responding to the termination letter is generally a good practice, it is important to review your employment contract, any relevant policies, and local employment laws to understand if there are any specific requirements or obligations regarding the response. Each situation is unique, and employment laws can vary depending on your jurisdiction, so it is always recommended to consult with a professional who can provide advice tailored to your circumstances. Please complete the priority intake form above to arrange a FREE consultation with one of of intake investigators. Call 1800ADVOCATES (1800 238 622) or gethelp@1800ADVOCATES.au
  • What is unfair dismissal?
    Examples of ‘dismissal’ ‘Dismissal’ means the employer telling the employee they no longer have a job. For example, the employer may: fire an employee with or without warning for their behaviour fire an employee because they are not performing their job to the level required tell the employee their position is redundant now or on a future date. In some cases, if the employer's behaviour forces an employee to resign, that might also be a dismissal. What is not dismissal? When an employee chooses to resign, this is not dismissal. Also, an employer is not dismissing an employee just because they do not offer a new contract when: the old contract ends the employee has completed the specified task they were employed to complete the employee was only employed for seasonal work and the season ends. What makes a dismissal 'unfair' A dismissal is not always unfair. In some situations, it is fair to end an employee's employment. When an employer dismisses an employee, the law says that they: should not dismiss an employee if it is harsh, unjust or unreasonable should not make an employee redundant if it is not a genuine redundancy should follow the Small Business Fair Dismissal Code (if they are a small business). The legal definition is in section 385 of the Fair Work Act 2009. Examples of ‘harsh’, ‘unjust’ and ‘unreasonable’ dismissal A dismissal may be unfair if it is one, 2 or all 3 of ‘harsh, ‘unjust’ or ‘unreasonable’. This is explained in section 387 of the Fair Work Act. Examples of ‘harsh’ dismissal the dismissal is an extreme response to the situation the dismissal has a very big ('disproportionate') impact on the employee’s economic and personal situation. Example of ‘unjust’ dismissal the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them. Example of ‘unreasonable’ dismissal the evidence does not support the decision to dismiss the employee. If you require assistance with an unfair dismissal, please complete the contact form below.
  • What can you prove for unfair dismissal?
    Evidence if key when trying to prove unfair dismissal and our Advocates are amongst the best in Australia to help you prove that an unfair dismissal has happened to you, providing that there is sufficient evidence to support your claim. The best way to work this out is to call us for a FREE consultation to discuss the circumstances of what you believe led to the unfair dismissal.
  • What are three 3 circumstances that can constitute unfair dismissal?
    What is unfair dismissal? the person has been dismissed. the dismissal was harsh, unjust or unreasonable. the dismissal was not a case of genuine redundancy. where the employer is a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.
  • What are the possible outcomes of an unfair dismissal appeal?
    The Fair Work Act is very specific about what outcomes the Commission can order. The options may be more flexible if you reach agreement at a conciliation. Our Advocates can assist you to understand your possible remedies better, once we have considered your individual circumstances and evidence during your FREE consultation. If you do not reach agreement at conciliation your case may continue to a formal hearing in front of the Commission. The Fair Work Act balances the needs of businesses and employees. If a dismissal is unfair, the Fair Work Commission will focus on an outcome or ‘remedy’ that is fair.
  • How do I apply for unfair dismissal in Fair Work?
    The Fair Work Commission (the Commission) decides on cases of unfair dismissal. Employees need to apply to the Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal. DO NOT DELAY, CALL US TODAY! If you think you have been unfairly dismissed, you should contact the Commission as soon as possible.
  • What is unlawful termination of employment?
    Unlawful termination is similar to a general protections dismissal: it is when an employer ends a person’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act. You may be eligible to make an unlawful termination application if you are not a national system employee. If you are a national system employee but are not entitled to make a general protections dismissal application because the reason or reasons for your dismissal are not prohibited by the general protections provisions you may also be eligible to apply. Complete the priority intake from on this website to take advantage of a FREE consultation we offer, so you can better understand your rights.
  • How much compensation can I get for an unfair dismissal?
    Unfair dismissal compensation is capped at twenty-six (26) weeks ordinary wages for the unfairly dismissed employee and can range from no compensation to the maximum capped compensation.
  • What is the High Income Threshold in an Unfair Dismissal case or other Fair Work matters?
    Introduction See Fair Work Act s.382 The high income threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal under the terms of the Fair Work Act 2009. If an employee is not covered by a modern award, or if an enterprise agreement does not apply to them, they must have an annual rate of earnings of less than the high income threshold. The high income threshold is currently $162,000.[1] This figure is adjusted annually on 1 July.[2] For a dismissal which took effect on or before 30 June 2022 the high income threshold was $158,500.[3] What are earnings? See Fair Work Act s.332 Earnings include: wages such other amounts (if any) worked out in accordance with the Regulations amounts dealt with on the employee’s behalf or as the employee directs, and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money: to which the employee is entitled in return for working, and for which a reasonable money value has been agreed by the employee and the employer. The Fair Work Commission has a discretion to include a benefit that is not a payment of money and that is not a 'non-monetary benefit' (within the meaning of s.332(3) of the Fair Work Act). It may do so where it is satisfied that it is appropriate to take it into account, and it can attribute a ‘real or notional’ value to the benefit, in default of any agreement between the parties.[4] Earnings do not include: payments the amount of which cannot be determined in advance such as: commissions incentive-based payments and bonuses, or overtime (except guaranteed overtime);[5] reimbursements (such as per diem payments),[6] and compulsory contributions to a superannuation fund (superannuation guarantee). Per diem means 'by the day' – a sum of money paid to an employee every day, such as a meal allowance or accommodation allowance. Superannuation Compulsory superannuation contributions are not included in the calculation of an employee’s earnings.[7] Any superannuation paid in excess of compulsory contributions may be included in the calculations of the employee’s earnings. Vehicles Where an employer provides an employee with a fully maintained vehicle the value of the private use of the vehicle can be included in the annual rate of earnings.[8] Use for business purposes is excluded and only the proportion of private usage can be counted as remuneration.[9] Where there is no agreed monetary value of the benefit of the private use of a motor vehicle, the Commission will generally apply the following formula:[10] Determine the annual distance travelled by the vehicle in question. Determine the percentage of that distance that was for private use. Multiply the above two figures to obtain the annual distance travelled for private purposes. Estimate the cost per kilometre for a vehicle of that type (may be obtained from RACV, NRMA or other similar motoring association). Multiply the annual distance travelled for private purpose (obtained at step 3) by the estimated cost per kilometre. The figure obtained is the value of the vehicle to the employee and is added to remuneration.[11] Where an employer provides an employee with a car allowance, the allowance should be treated in the following way for the purpose of calculating an employee’s ‘annual rate of earnings’: If a car allowance is paid to an employee in circumstances in which there is no requirement or expectation that the employee will have to use his or her car for work purposes, then the whole of the car allowance is, in reality, part of the employee’s wages and is therefore included in their ‘earnings’. If a car allowance is paid to an employee at the time of their dismissal in circumstances in which there is a requirement or expectation that the employee will have to use his or her car for work purposes, then it will be necessary to determine and calculate the private benefit, if any, derived by the employee from the car allowance.[12] Fringe benefit tax Fringe benefit tax is a tax that is imposed on an employer when they provide a benefit to an employee,[13] such as personal use of a company owned vehicle. Fringe benefit tax may or may not be counted as earnings depending on whether the amount is found to be an amount dealt with as the employee directs. Where the employer is ‘free to choose whether to provide a particular benefit to an employee’ it cannot be said to be an amount dealt with on the employee’s behalf.[14] Fringe benefit tax may be an amount dealt with at the employee’s direction, in a genuine salary sacrifice situation when an employee has forgone wages in return for a benefit.[15] In this situation fringe benefit tax will be included in the employee’s earnings.[16] Case examples Earnings Tax-deductible work-related expenses Read v Universal Store Pty Ltd T/A Universal Store [2010] FWA 5772 (McKenna C, 23 August 2010). The employee claimed that tax-deductible work-related expenses should be deducted from his wages for the purpose of calculating whether the high income threshold had been exceeded. This submission was not accepted. Pre-determined overtime Foster v CBI Constructors Pty Ltd [2014] FWCFB 1976 (Catanzariti VP, Lawler VP, Lewin C, 24 March 2014). The employee was required to attend 30 minute pre-start meeting every work day which was paid as overtime. It was found the overtime payments could be determined in advance so the 2.5 hours of overtime per week could be included in the calculation of his earnings. Guaranteed overtime Cross v Bechtel Construction (Australia) Pty Ltd [2015] FWC 3639 (Catanzariti VP, 29 June 2015). The employee was contractually obliged to work a 58 hour Extended Work Week (EWW) which was comprised of 40 hours ordinary work and 18 hours overtime. The Commission found that the overtime was guaranteed as the required 58 hour EWW could clearly be determined in advance and therefore should be used as the basis for calculating the annual rate of earnings. Vehicle Zappia v Universal Music Australia Pty Ltd T/A Universal Music Australia [2012] FWA 3208 (Hamberger SDP, 18 April 2012). The employee argued that the provision of a company car was a tool of the trade and should not be considered part of his earnings. It was found that the vehicle was primarily used for private purposes and was a significant part of the employee’s remuneration package. Private use of company provided iPhone and iPad Dart v Trade Coast Investments Pty Ltd [2015] FWC 4355 (Sams DP, 29 June 2015). The employee was provided with an iPhone and iPad at the commencement of his employment with permission for personal use ‘within reason’. The employee accepted that he had used the phone for personal calls, but, as with the vehicle, he argued that this was ‘incidental’ to the phone’s primary business purpose. The phone records disclosed that of 659 national direct calls, it appeared that 412 were direct personal calls (62.5%). When the phone and iPad were returned on termination, there were 610 personal photos on the iPad, and eight videos, as distinct from 21 work related entries. The calculated benefit from the employee’s private use of the phone and iPad resulted in his earnings exceeding the salary cap threshold. Life insurance policy Savannah Nickel Mines Pty Ltd v Crowley [2016] FWCFB 2630 (Hamberger SDP, Hamilton DP, Saunders C, 27 April 2016). The cost of the premium for a life insurance policy, which was paid for by the employer, was found to be an amount applied or dealt with on the employee’s behalf and was included in calculating the employee’s income. NOT earnings Travel allowance Davidson v Adecco Australia Pty Ltd T/A Adecco [2012] FWA 8393 (Booth C, 4 October 2012). The employee was in receipt of an annual travel allowance of $16,000 for the use of his own vehicle for work travel. It was held that the business use component of the allowance was to be excluded from the 'earnings'. Only the personal use could be included in ‘earnings’. Bonuses Jenny Craig Weight Loss Centres v Margolina [2011] FWAFB 9137 (Giudice J, Hamilton DP, Robert C, 23 December 2011). In the previous financial year the employee had received a base salary of $60,000, a 5 year bonus of $100,000 and an annual performance bonus of $42,000. It was found that the 5 year bonus could not be ‘determined in advance’ because the employer reserved the right to alter or discontinue the bonus plan, and it was likely that the same applied to the annual performance bonus. The employee therefore earned less than the high income threshold. Fringe benefit tax Rofin Australia Pty Ltd v Newton, Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78]. Fringe benefit tax on the provision of a motor vehicle was found not to be part of the employee’s earnings as it was the employer’s taxation liability. This was distinguished from a genuine salary sacrifice situation where it can be said that fringe benefit tax is an amount paid at the direction of and by arrangement with the employee which would otherwise be part of the employee’s salary package. Mobile broadband – personal use Maturu v Leica Geosystems Pty Ltd [2014] FWCFB 6735 (Catanzariti VP, Asbury DP, Spencer C, 29 September 2014). The personal use of a mobile broadband service, on a laptop computer supplied for work purposes, was found not to be a ‘non-monetary benefit’. This was because the mobile broadband service was provided as a piece of equipment that was essential to the performance of the job and there was no evidence of any agreement in relation to the private use of the mobile broadband service. References [1] This figure applies from 1 July 2022. [2] For more information on the high income threshold please see Fair Work Act s.333; Fair Work Regulations reg 2.13. [3] High income threshold for period 1 July 2021 to 30 June 2022. [4] Fair Work Regulations reg 3.05(6). [5] See note in Fair Work Act s.332; incentive bonuses discussed in Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 (Giudice J, Hamilton DP, Roberts C, 23 December 2011) at para. 19. [6] See for e.g. Schreuders v Freelancer International Pty Ltd [2015] FWC 3286 (Booth DP, 15 May 2015). [7] Fair Work Act s.332(2)(c); discussed in Ablett v Gemco Rail Pty Ltd [2010] FWA 8124 (Williams C, 22 October 2010) at paras 31‒32. [8] Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82]; citing Condon v G James Extrusion Company Print N9963 (AIRC, Watson DP, 4 April 1997), [(1997) 74 IR 283 at p. 288]; cited in Slavin v Horizon Holdings Pty Ltd [2012] FWA 2424 (Bissett C, 23 March 2012) at para. 11. [9] ibid. [10] Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998); cited in Chang v Ntscorp Ltd [2010] FWA 1952 (Hamberger SDP, 9 March 2010); see McIlwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 3614 (Cribb C, 30 April 2012) at para. 34. [11] Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998). [12] Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767 (Gostencnik DP, Clancy DP, Saunders C, 27 March 2018) at para. 72. [13] Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82]. [14] ibid. [15] Chang v Ntscorp Ltd [2010] FWA 1952 (Hamberger SDP, 9 March 2010) at para. 21. [16] ibid.
  • What is needed to prove a dismissal was harsh, unfair or unjust in the Fair Work Commission?
    To prove harsh, unfair or unjust dismissal in an unfair dismissal case in the Fair Work Commission, an employee needs to demonstrate that their dismissal was: 1. Harsh, unjust or unreasonable: This means that the dismissal was disproportionate to the employee's conduct or performance, or that the employer did not follow proper procedures in dismissing the employee. 2. Not consistent with the Small Business Fair Dismissal Code: If the employer is a small business, they must follow the Small Business Fair Dismissal Code, which sets out the steps that must be taken before dismissing an employee. 3. Discriminatory: If the dismissal was based on a protected attribute, such as race, gender or age, it may be considered discriminatory. 4. Adverse action: If the dismissal was taken as a result of the employee exercising their workplace rights, such as making a complaint or joining a union, it may be considered adverse action. To prove these factors, the employee will need to provide evidence and arguments to support their case, such as witness statements, emails, and performance reviews. If you need assistance with this matter or if you would like to discuss your options, please complete the Priority Intake Form on our website and we will arrange a suitable time to discuss the merits of your case and the options that may be available to you.
  • Is it worth lodging an unfair dismissal appeal?
    When a worker is unfairly dismissed from their employment contract, the impact can be more than merely a financial impact, the emotional toll can be far greater and the overwhelming sense of injustice can lead to a feeling of strong anxiety and illness. Aside from this, there can also be a long lasting reputation harm and a real and direct impact to future employment prospects, particularly where there are allegations of misconduct such as alleged theft, gross misconduct and any other matter that might cause a potential employer to doubt a potential worker's worth and capacity to work well. For this reason alone, we say that lodging an unfair dismissal appeal can be beneficial to correcting the record and preparing yourself to move on.
  • Who is protected by unfair dismissal ;law?
    Criteria to identify protected employees The law protects employees who: work for a national system employer AND work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business) AND earn less than the high-income threshold AND (casual employees only) work on a regular and systematic basis before dismissal and have a good reason to believe this would continue. The law also protects employees who earn more than the high-income threshold if: an award covers their employment OR an enterprise agreement applies to their employment. Who is a national system employer? Most, but not all, employers in Australia are national system employers. This means that most workers are national system employees. The full definition is in section 14 of the Fair Work Act 2009.
  • How can an employer get help with an unfair dismissal application?
    1800ADVOCATES is available to assist any party in Fair Work appeals and appearances. Employers are able to access a FREE consultation by completing the priority intake form on our website or by calling 1800 238 622.
  • Can I get my job back or be 'reinstated' after an unfair dismissal?
    The Fair Work Commission may order an employer to give the employee their job back ('reinstatement') if they decide a dismissal was unfair. There are rules to protect the employee. Content Reinstatement is the primary remedy in unfair dismissal cases. When a Commission Member decides a dismissal is unfair they will see if reinstating the employee is appropriate. When reinstatement is not appropriate, other remedies will be looked at. This includes compensation. It is rare that the Commission decides that the employer must give the employee their job back. Conditions the employer must meet If we decide reinstatement is suitable, the employer must follow some rules. They must restore the employee's job to what it was before the dismissal. This means the position has the same pay, benefits and working conditions. It does not have to be the same position but the terms and conditions cannot be worse than the previous job. See section 391(1)(b) of the Fair Work Act 2009. The Fair Work Commission may order the employer to give the employee their job back, even if the employer: still has a negative view of the employee’s actions after the legal decision is embarrassed because they thought an employee was guilty of something made the employee redundant, but it was not genuine. Reasons reinstatement may not be possible The Commission Member considers all factors before deciding on this option. They may not order it if: the business no longer operates the employee cannot work because of illness or injury the position does not exist anymore the employer and employee can't work together because of their relationship the employer would probably dismiss the employee again. Every case is different. A decision about one case does not mean a similar case will have the same result.
  • Why do I only have 21 days to lodge my unfair dismissal appeal?
    The date the Fair Work Commission receive a document, not the date you post, email or fax it, must be before the deadline. This means the Fair Work Commission accept documents no later than 11:59 pm on the deadline. The Fair Work Commission may not accept late applications. Deadline to receive documents The Fair Work Commission encourages you to send documents by email. For agreement applications you can use our online form. This is quicker and you can send at any time before the deadline. Post documents When you post an application or document, it must arrive at the Commission by the deadline. The Fair Work Commission do not accept delays by Australia Post or other mail and courier services as a reason for missing the deadline. Fax documents The date you send an application by fax must be no later than the deadline. What to do if the deadline is near If you are worried you will miss the deadline because you are waiting for information, you can: contact us to find out what options may be available to you Dismissals: apply within 21 days The 21-day timeline is for the following applications: Unfair dismissal General protections dismissal Unlawful termination The Fair Work Commission must receive an unlawful termination application within 21 days after your employment was terminated. The Fair Work Commission must receive applications about unfair dismissal or general protections dismissal within 21 days after the dismissal took effect. Usually, the dismissal took effect on the last day you had a contract of employment with your employer. This may be later than the last day you were at work. Example On 7 June, Ray’s employer says he will end Ray’s contract on 30 June. Ray is on leave from 24 to 30 June. The last day he works for his employer is 23 June but the day the dismissal took effect is 30 June. The Fair Work Commission must receive Ray’s application by 11.59pm on 21 July. If the last day of the 21-day limit is a Saturday, Sunday, or public holiday, we change the deadline to the next business day. The Fair Work Commission do not extend the deadline because of weekends or public holidays during the 21 days. Late applications for dismissal (‘out of time’) When the Fair Work Commission receive a dismissal application after the deadline, it is ‘out of time’. This means you need to tell us why you missed the deadline. The Fair Work Commission may extend the deadline if ‘exceptional circumstances’ caused the delay. Examples of exceptional circumstances are: serious illness the death of a family member a delay or error by a lawyer or paid agent . A Commission Member will decide if you have an ‘exceptional’ reason. They will take into account: the reason why you applied late whether you became aware of your dismissal only after it had taken effect what you did to show you disagree with the dismissal any prejudice to your employer (including prejudice caused by the delay) the facts in your application the fairness of giving you longer to apply, compared with other people in a similar situation. The Fair Work Commission do not accept late applications when the reason is: a post or courier service caused the delay you did not know about the deadline. Responses: reply within 7 days When the Fair Work Commission contact you about a case, they will tell you when you need to respond or to send (serve) documents to other people. For some applications, the response is optional but if you choose to respond, the deadline is 7 days. If the Fair Work Commission receive your response after this time limit, they may not consider it when they decide on the case. Enterprise agreements timeline The process to make or change an enterprise agreement has a specific timeline. If the steps in the process do not meet the deadline, you may have to start again.
  • What happens at an unfair dismissal conference or hearing?
    Introduction A Commission Member leads conferences and hearings. They consider submissions and review evidence in the case. Conferences and hearings have different aims. The aim of your conference or hearing may be to: reach an outcome on the case ('matter') in your notice of listing progress the matter more generally. The differences between conferences and hearings The Member says what procedures ('protocols') will apply for your conference or hearing. The table has some typical protocols for conferences and hearings. Yours may be different. Hearings Open to the public. Usually anyone can attend, including the media, family and friends. Held in a hearing room. People sit in formal positions in the hearing room. The Commission Member sits at the front of the room. The parties give evidence from the witness box. Conferences Usually not open to the public. In most cases a support person, such as a family member or friend, can attend.. Either held in a smaller hearing room or conference room. Everyone sits around the same table. More informal and interactive. The Commission Member may sit at the bar table with the parties in a hearing room, or around a large table in a conference room. The parties give evidence from the table. Different types of conference A conference can be 1 of 2 types: A 'preliminary' or 'case management' conference is where we gather information and explore the best way to approach a case A 'determinative' conference is a legal proceeding. The 2 sides in a case may give evidence or bring witnesses. The Member decides if the Commission should make an order. This type of conference is most common in unfair dismissal cases. Conferences may also be held in other types of case. In these conferences, the Commission may mediate, conciliate, make a recommendation, or express an opinion. Online proceedings Your hearing or conference may take place online rather than in person. This is more common when dealing with ‘preliminary’ or ‘case management issues’. The Fair Work Commission will tell you if your matter will be online or in-person. You will have an opportunity to comment on the format of your case. The Member dealing with your case will send you a notice of listing. This will include important information about your matter, including how to attend online. You should read it before the hearing or conference. A Commission Member holds an online hearing. It is a formal legal proceeding. You must conduct yourself appropriately. See standards of behaviour for more information. A Member may ask you to provide your contact details before the hearing. You should also provide contact numbers for other attendees. This includes witnesses or support persons. Online proceedings follow our Interim framework. We have developed a guide to use when you attend online hearings. The framework and the guide cover: when an online proceeding might be appropriate, how to behave during the proceeding how to prepare for your online proceeding. These documents are available below: Interim online hearing framework Online hearing participant guide The following guides provide you with technical information. They may assist you in using the software and preparing for your online hearing: Information for participants Extra information for witnesses Length of conference or hearing On average a determinative conference or hearing is scheduled for between half a day - 3 days, however it will depend on the case and how complex it is. The Notice of Listing will say how many days have been allocated for the case. Sensitive or confidential evidence If a hearing involves sensitive or confidential evidence, the Commission Member may: order a private or part-private hearing restrict who can come to the hearing not allow publication of the names and addresses of people at the hearing not allow the publication of evidence or its disclosure to people at the hearing. Your right to a fair hearing Commission Members must follow a code of conduct. This means they must conduct a hearing that is fair, impartial and efficient. You can complain about a Member of the Commission if you: think the Member may be showing bias in your case wish to ask them to disqualify themselves. Please complete the form below for a FREE consultation if you would like to know more about this process.
  • Who is NOT a national system employer under the Fair Work Act?
    In broad terms, the following are not national system employers: State government employers in New South Wales, Queensland, Western Australia, South Australia and Tasmania local government employers in New South Wales, Queensland and South Australia employers that are non-constitutional corporations in Western Australia (including an individual, a sole trader, partnership or trust) employers of employees at higher managerial levels in the public sector in Victoria. Do you need more information? Call 1800ADVOCATES (1800 238 622) or gethelp@1800ADVOCATES.au
  • What compensation could I get for an unfair dismissal?
    When the Fair Work Commission considers compensation If the Commission finds a dismissal was unfair (‘harsh, unjust or unreasonable’), it may order compensation. An employee can only receive compensation for lost income ('remuneration'). An employee does not always receive compensation, even if the dismissal was unfair. Before we can order compensation, we must decide if the employer should give the employee their job back ('reinstatement'). Reasons the Fair Work Commission might not order reinstatement: the business no longer operates the employee cannot work because of illness or injury the employer and employee cannot work together as their relationship has broken down the employer would probably dismiss the employee again. Note: we cannot order compensation for reasons such as pain and suffering, shock, distress, hurt or humiliation. Median compensation for unfair dismissal It is important to know that most employees only receive a small amount of compensation for unfair dismissal. The median is between 5 – 7 weeks pay. Less than 0.4% of applicants receive the maximum limit (the ' compensation cap') that we can order an employer to pay. The maximum we can order is the lower of these 2 amounts: half of the employee’s annual wage OR the compensation cap, which is $79,250 for 2021-22 and changes on 1 July each year. The Fair Work Commission may reduce the amount of compensation if they find: the employee did not suffer any financial loss from the dismissal the employee deserves a lower amount because of bad behaviour ('misconduct'). The way we work out compensation is complex. This considers the rules in section 392 of the Fair Work Act 2009. Examples of payments These examples show how we work out the most we can order an employer to pay. Example 1 – compensation is within the cap Michael earned $50,000 per year before his employer dismissed him. Half of Michael's annual salary is $25,000 and the compensation cap is $79,250 for 2021-22. So Michael’s compensation cap is $25,000 (the lower of these 2 amounts). Like most employees, Michael receives less than the maximum amount of compensation. In this case, the Commission calculates Michael’s compensation is 6 weeks' salary, or $5,770. As this is within his cap of $25,000, the Commission orders the employer to pay him $5,770. Example 2 – compensation is over the cap Viv earned $50,000 per year before her employer dismissed her. Half of Viv's annual salary is $25,000 and the compensation cap is $79,250 for 2021-22. So Viv’s compensation cap is $25,000 (the lower of these 2 amounts). Although this does not happen often, the Commission calculates that Viv's compensation is more than her cap of $25,000. The Commission orders the employer to pay her $25,000. Example 3 – an employee receiving a high-income is covered by an enterprise agreement Krisha earned $180,000 per year before her dismissal. This is above the high-income threshold but she is protected from unfair dismissal because an enterprise agreement applies to her. Half of Krisha’s annual salary is $90,000 and the compensation cap is $79,250 for 2021-22. So the cap for Krisha is $79,250 (the lower of these 2 amounts). The Commission calculates Krisha’s compensation as $93,000. This is more than the limit, so the Commission orders the employer to pay her $79,250.
  • How do I object to an unfair dismissal appeal?
    Common reasons you may object You may object if you believe the employee is not eligible to claim unfair dismissal. For example, if: the employee is not protected by law from dismissal the employee applied more than 21 days after you dismissed them you ended their employment because of a genuine redundancy you are a small business and followed the Small Business Fair Dismissal Code. The employee may also not be eligible if you did not dismiss them. This could be because: they are still employed they resigned from their position their fixed-term contract expired they were a contractor, not an employee. How to object If you are the employer named in the application, you have 2 choices: When you respond to the application, add your objection to Form F3 – Employer response to unfair dismissal application OR Complete a separate Form F4 – Objection to unfair dismissal application. You can send this with your response form or later. Making a jurisdictional objection will not stop an unfair dismissal application. After you submit an objection, the Fair Work Commission will ask you to decide whether to: Take part in a conciliation. If the conciliation does not resolve the application, a Commission Member will consider your objection. The Fair Work Commission may hold a jurisdictional hearing. OR Opt out of the conciliation. The Fair Work Commission schedule a formal hearing. You miss out on the opportunity to resolve the issue in a less formal setting. If the Fair Work Commission dismiss your objection, the application continues to a hearing.
  • What are the other terms for unfair dismissal?
    Unfair dismissal Unjust termination Wrongful termination Unlawful firing Unfair workplace dismissal Employment termination dispute Dismissal compensation Unfairly fired employees Employee rights after dismissal Challenging unfair dismissal Fair Work Commission Employment dispute resolution Workplace tribunal hearings FWC unfair dismissal process Filing unfair dismissal claim Employment law advice Unfair termination compensation Employer misconduct allegations Employment rights violation Unfair dismissal lawyers Do you need assistance with and unfair dismissal appeal? Call us for a FREE consultation or email gethelp@1800ADVOCATES.au
  • Businesses that may not be covered by the Fair Work General Protections Laws
    Your workplace may not be covered by the general protections if it is: a sole trader or partnership in Western Australia a state government department (except in Victoria) a non-corporate state public sector agency (except in Victoria) a local government body that is not a corporation a local government body not engaged in trading or financial activities.
  • Workplace Rights and General Protections
    Protection This Division protects workplace rights, and the exercise of those rights. Section 340 A person must not take adverse action against another person: because the other person: has a workplace right; or has, or has not, exercised a workplace right; or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or to prevent the exercise of a workplace right by the other person. A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. What is the protection? A person must not take adverse action against another person because the other person: has a workplace right has (or has not) exercised a workplace right, or proposes to (or proposes not to) exercise a workplace right. A person must not take adverse action against another person to prevent the exercise of a workplace right by the other person. Example An employer must not dismiss an employee because the employee made a complaint or claim to the Fair Work Ombudsman about being underpaid.
  • Businesses that must follow the Fair Work General Protections laws
    Constitutionally-covered businesses must follow the general protections laws. This includes: a constitutional corporation. most proprietary limited (Pty Ltd) companies foreign corporations incorporated overseas trading or financial corporations formed within Australia the Australian Government a Commonwealth authority, which means: a body corporate established for a public purpose by or under a Commonwealth law, or a body corporate incorporated under a Commonwealth, state or territory law where the Commonwealth has a controlling interest in that body a body corporate incorporated in a territory of Australia a business or organisation conducted principally in a territory of Australia or a place acquired by the Commonwealth for public purposes.
  • Can employees of recruitment agencies and labour hire companies lodge General Protection complaints?
    If you work through an agency: your employer is the agency (the ‘principal’) and they pay you the company you do work for is your ‘host’. Only the agency can dismiss you. You cannot start a claim for dismissal against the host. For applications about dismissal under general protections, you must use Form F8 and give the Fair Work Commission details of: the agency that pays you AND the company you do the work for. For disputes with your principal or your host where you have not lost your job, use Form F8C.
  • What are general protections complaints and laws?
    The general protections laws protect most people from: harmful (adverse) action coercion undue influence or pressure misrepresentation where they affect workplace rights. Most cases we deal with are about adverse action. In these cases the person who applies must show: they are eligible to apply someone took adverse action against them for a prohibited reason For example: an employee may be able to apply if their employer: dismisses them (takes adverse action) because they were away from work when sick (prohibited reason for dismissing someone). When a person applies under general protections laws they are starting a legal process.
  • How do General Protections work?
    Overview of General Protection rights Adverse action taken ‘because’ of a proscribed reason A number of the general protections provisions aim to protect employees from adverse action taken because of a particular proscribed reason. For example, s.340 of the Fair Work Act 2009 says: 340 Protection A person must not take adverse action against another person: because the other person: has a workplace right; or has, or has not, exercised a workplace right; or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or to prevent the exercise of a workplace right by the other person. [Emphasis added] Thus a general protections dispute occurs when it is alleged that adverse action is taken – or when a threat to take adverse action occurs – because a person has one of these rights, exercises or does not exercise such a right, or proposes or does not propose to exercise such a right. Other general protections provisions which use ‘because’ are: s.346 (regarding industrial activities) s.351 (regarding discrimination) s.352 (regarding temporary absence in relation to illness or injury), and s.354 (regarding coverage by particular instruments, including provisions of the National Employment Standards). Why? – The reason for the adverse action The use of the word ‘because’ in these provisions means that the central question in a general protections dispute, once it has been established that adverse action was taken, will be ‘Why was the adverse action taken?’.[1] This is a question of fact which must be answered in the light of all the facts established in the proceeding. It will involve a consideration of the reason or reasons of the person who made the decision to take the adverse action and surrounding circumstances including those of the employee at the time the action was taken.[2] A question of fact is when the Fair Work Commission must decide what the facts of the case are based on the evidence. Often a question of fact arises where there are two or more versions of events presented. This means the Commission must determine which one, if either, of the circumstances is more likely to have occurred on the balance of probabilities. Unless the adverse action was taken ‘because’ of a proscribed reason, then there will be no breach of the general protections provisions. For example, if adverse action is taken against a person who is exercising a workplace right, there will only be a breach of the general protections provisions (s.340) if the exercise of the workplace right was the reason why (or a reason why) the adverse action was taken. The workplace right need only be a reason, not the only reason, for the action. If the action was taken solely for another reason – such as serious misconduct at work – then there will be no breach. For instance, if adverse action is taken against a pregnant employee, there will be no breach of the general protections provisions (s.351) unless the employee’s pregnancy was the reason (or a reason) for the taking of the adverse action. Pregnancy does not by itself establish an immunity from adverse action.[3] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay[4] (which concerned disciplinary action taken against a union representative who sent a communication to fellow employees) the High Court noted that the attribute or activity protected by Part 3-1 does not have to be completely disassociated with the adverse action. The question is whether those protected attributes or activities were an operative factor in the decision to take the action.[5] Examples If an employee is dismissed because he or she had taken temporary leave due to illness, then the employee may be covered by the general protections provisions. If an employee was dismissed while on temporary leave due to illness, but that was not a reason for the dismissal, then the employee will not be covered by the general protections provisions. In example 1 above, the employee has been dismissed (adverse action) because they had taken a period of temporary leave, which is a protected right (reason). In example 2 above, the employee has been dismissed (adverse action) during a period of temporary leave, which is a protected right. However the decision to dismiss was not because the employee was on leave – so the (reason) is missing. Multiple reasons 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. Section 360 deals with the situation where there are multiple reasons for the taking of adverse action. If one of the reasons for taking adverse action was a proscribed reason, then there will be a breach of the applicable general protections provision (where the provision is a ‘because’ provision). The proscribed reason does not have to be the sole or dominant reason. However the reason must be a substantial and operative reason.[6] Case examples Protected reason was substantive and operative reason for dismissal Occupational health and safety Flavel v Railpro Services Pty Ltd [2013] FCCA 1189 (29 August 2013). The applicant was dismissed after an incident where he refused to sit a competency test without reasonable excuse. The employer alleged he was dismissed because he failed to achieve the level of competence required to fulfil the inherent requirements of his role. The Court found that the substantive and operative reason for the employee’s dismissal was because his health at that particular time prevented him from performing his duties. The respondent was requiring the applicant to undertake duties that they knew, or at least suspected, he would be unable to perform. The applicant was dismissed for exercising a workplace right (an OH&S right) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving a train while being mentally or physically ill. Further, the applicant was dismissed for a mental or physical disability. Protected reason NOT substantive and operative reason for adverse action Maternity leave not reason for adverse action Lai v Symantec (Australia) Pty Ltd [2013] FCCA 625 (28 June 2013). The applicant was made redundant whilst on maternity leave. The respondent gave evidence that the decision to terminate the applicant’s employment was for cost-cutting reasons and had nothing to do with her maternity leave. This evidence was supported by contemporaneous documents and was consistent with other evidence in the case. The substantive and operative test was applied and the Court found that the applicant was not dismissed for a proscribed reason. Industrial activities not reason for adverse action Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 (28 March 2013). The employee was warned and threatened with dismissal for taking unauthorised leave to attend the CFMEU’s board of management meeting. Applications for unpaid leave were denied on several occasions due to the company’s policy requiring that paid leave be exhausted before unpaid leave is available. The substantial and operative reason for the warning was not the employee’s participation in industrial activities, but the taking of unauthorised leave. Union role not reason for adverse action Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012), [(2012) 248 CLR 549]. The employee, who was his union’s sub-branch president, sent an email to other employees containing serious allegations concerning the employer’s conduct. The employee was suspended on full pay and requested to show cause why he should not be subject to disciplinary action. The employer’s manager gave evidence that she decided to take the action against the employee because of her concern about the allegations in the email and their potential consequences, and not because of his union membership, office or activities. The manager’s evidence was accepted. It was held that there had not been any contravention by the employer. Exercising a workplace right or mental disability not reason for adverse action Short v Ambulance Victoria [2015] FCAFC 55 (24 April 2015). Decision at first instance [2014] FCA 3 (15 January 2014). The applicant was employed as an Ambulance Paramedic. The respondent had sought expressions of interest from officers to act in a higher duties position for 9 weeks. The applicant was later involved in an altercation with the Acting Team Manager which resulted in the applicant submitting a Workcover claim asserting a psychological injury. The applicant was absent from work due to his acute stress reaction for approximately 6 weeks. An external investigator investigated the applicant’s complaints around the altercation. The final report concluded that the applicant’s complaints were unsubstantiated and described aspects of the applicant’s behaviour as ‘inappropriate’, ‘aggressive’, ‘bullying’ and ‘intimidating’. At a counselling meeting to discuss the findings the applicant was issued with a formal warning in relation to his behaviour. After a further complaint about the investigation and report, the applicant requested a transfer to another branch, providing a report from his treating psychologist in support. As a result the respondent formed the view that it was unsafe to permit the applicant to continue working as a Paramedic whilst he was suffering from an acute stress reaction and he was stood down on full pay pending a psychological assessment. After returning to work the applicant had a further altercation with the same manager after his request to postpone some annual leave was refused. The applicant was again stood down and after an investigation the applicant was dismissed for serious and wilful misconduct. The applicant alleged the respondent took adverse action against him in contravention of s.340 of the Fair Work Act by refusing to appoint him to perform higher duties; issuing him with a formal warning; standing him down from employment; and terminating his employment. The applicant alleged that the adverse action was taken because he had exercised a workplace right by making complaints or inquiries in relation to his employment. The applicant further alleged that the respondent took adverse action against him in contravention of s.351 by refusing to appoint him to perform higher duties because of his mental disability (within the meaning of s.351). In the decision at first instance, after consideration of all of the issues the primary judge dismissed the application, finding that the respondent did not take adverse action against the applicant because he had exercised a workplace right or because he had a mental disability. The applicant appealed citing 11 grounds for appeal. The Full Court was not satisfied that the primary judge fell into error in respect of any of the appeal grounds alleged and dismissed the appeal. Making complaints not reason for adverse action Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124 (21 October 2014). The applicant was employed by the respondent as a Program Leader pursuant to a fixed term contract of employment. Disputes arose between the applicant and the respondent’s Director of Education, who was the applicant’s supervisor, relating to the performance of the applicant’s duties. This dispute gave rise to allegations of misconduct. The applicant was informed that the respondent proposed to investigate the allegations and he was suspended on full pay pending the outcome of the investigation. After considering the investigator’s findings and the applicant’s responses, the applicant was advised that the respondent had elected not to renew his contract. The respondent accepted that the suspension and failure to re-engage the applicant both constituted adverse action within the meaning of the Fair Work Act. It maintained, however, that the adverse action had not been taken ‘because’ of the making of the complaints but rather because of the conduct of the applicant. The Court found that the operative and immediate reasons for the employer having taken adverse action against the applicant was not because the applicant exercised the workplace right to make a complaint in relation to his employment. Other provisions not based on ‘because’ other general protections provisions are not based on adverse action being taken ‘because’ of a particular proscribed reason. Some provisions contain a direct prohibition on certain types of action; for example s.344 prohibits employers from exerting undue influence or pressure on employees to do certain things. Some provisions depend upon the existence of a certain state of mind in the person who took the action; for example, s.345 prohibits the making of false and misleading representations about certain matters to certain persons ‘knowingly or recklessly’. Other provisions prohibit certain actions taken with a particular intent, for example s.348 prohibits organising, taking, or threatening to organise or take any action against another person with ‘intent’ to coerce that person or a third person to do certain things. Knowingly or recklessly Whether a person made a representation knowingly can be determined by an enquiry into what the person knew about the statement in question. A reckless representation is a representation made by someone who is careless or indifferent as to its truth.[7] With intent Where a provision prohibits a person taking action with the intent of bringing about a certain result, a person’s intent may be established by evidence of their knowledge of the circumstances which gives the act its character. If such knowledge is established, the person will have breached the provision even if the person believed that the act was lawful. Actual knowledge is necessary, but a person who deliberately refrains from making enquiries because that person knows the probable consequences of the enquiries may be found to have constructive knowledge of those consequences, which may be regarded as equivalent to actual knowledge of the consequences.[8] Related information Undue influence or pressure – s.344 Misrepresentations – s.345 Coercion – s.348 Call us today for a FREE consultation to discuss your concerns. Call 1800 238 622 or email gethelp@1800ADVOCATES.au
  • Can Contractor make General Protection complaints?
    The general protections laws cover independent contractors who have a dispute with a company or person. Use Form F8C to apply to the Fair Work Commission for help. Contractors and sub-contractors cannot start a claim for dismissal because you have a contract to provide services, not an employment contract. Note: different businesses may use the term ‘contractor’ in different ways.
  • Employees and potential employees rights to General Protections Laws
    The general protections laws protect most employees. An employee is a person who has an employment contract with an employer. That employer pays them a salary. The employee may be permanent (full time or part time), casual or on a fixed-term contract. The general protections laws cover people who are: current employees potential employees (such as job applicants). You are not an employee if: you are an independent contractor or subcontractor you are not paid for the work you do (such as a volunteer or unpaid intern) you are a sole trader. If you are an employee and you have lost your job, you can apply to using Form F8. For other disputes, including if you are applying as a potential employee, use Form F8C.
  • General Protections - Industrial Activities
    Protection This Division protects freedom of association and involvement in lawful industrial activities. Section 346 A person must not take adverse action against another person because the other person: is or is not, or was or was not, an officer or member of an industrial association; or engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Comparison – unlawful termination The provisions of s.346 are very similar to the provisions of ss.772(1)(b)‒(c) – meaning that if a person is not eligible to make an application for freedom of association under the general protections then the following information may also be relevant to an unlawful termination claim. What is the protection? A person must not take adverse action against another person for their membership (or not) of an industrial association, and for participating (or not) in industrial activities. Example An employer must not refuse to employ a person because they are a member of a union. Are there exceptions? There are no exceptions.
  • Do General Protection laws apply to potential employers and employers?
    The general protections laws cover current employers and potential employers. A 'potential' employer is most often someone who interviews an applicant for a job vacancy. An employer or potential employer can only apply for help with a dispute about general protections - no dismissal (Form F8C).
  • Can my employer coerce me into duties I don't want to do?
    Section 355 A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: employ, or not employ, a particular person; or engage, or not engage, a particular independent contractor; or allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities. What is the protection? A person cannot take action which will force another person to make specific business decisions which they would not otherwise make. Example A union representative must not threaten to organise industrial action to force the employer to only employ members of the union in the future. Are there exceptions? There are no exceptions.
  • What is the difference between a contractor and an employee?
    The difference between employees and contractors is whether a person works for an employer or works for themselves. For example, you are probably an independent contractor if you: do work or provide services for one or more people or businesses send invoices after you finish a task to ask for payment have an ABN (Australian Business Number) You are likely to be an employee if the person or business you work for: pays you a wage or salary pays your income tax from what you earn gives you paid holidays or sick leave (not casual employees). Use this information when you are not sure if you are an employee or contractor.
  • What is unlawful termination?
    Unlawful termination is similar to a general protections dismissal: it is when an employer ends a person’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act. You may be eligible to make an unlawful termination application if you are not a national system employee. If you are a national system employee but are not entitled to make a general protections dismissal application because the reason or reasons for your dismissal are not prohibited by the general protections provisions you may also be eligible to apply. Complete the priority intake from on this website to take advantage of a FREE consultation we offer, so you can better understand your rights.
  • Where can I find out more information about my pay rates and work rights?
    You can find out all award information on the Fair Work Ombudsman's website, however, that can be difficult to navigate if you don't have familiarity with the site or with Awards. We offer a FREE consultation and if you complete the contact form below, we can help you get the right information about your workplace rights and your wages rates and entitlements. Alternatively, email gethelp@1800ADVOCATES.au or call 1800ADVOCATES (1800 238 622).
  • What is a Small Business Employer?
    Small businesses have different rules for dismissal. The Small Business Fair Dismissal Code provides protection against unfair dismissal claims, where an employer follows the Code. The Fair Work Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this. A small business is defined as any business with less than 15 employees. To figure out whether a business is a small business, count all employees employed at the time of the dismissal including: the employee and any other employees being dismissed at that time regular and systematic casual employees employed by the business at the time of the dismissal (not all casual employees) employees of associated entities, including those based overseas. The size of the business is counted the earliest of: when the employee is told their employment has been terminated, or when the employee is given their notice of termination.
  • Can an employer be penalised for not paying the compensation that was ordered?
    If an employer has not complied with an unfair dismissal order made by the Commission, it is possible for courts, such as the Federal Court of Australia, Federal Circuit Court of Australia, or an eligible State or Territory court to order the payment of an additional penalty. This kind of penalty is known as a pecuniary penalty and is in addition to any order made by the Commission.
  • What is a Fair Work Commission Order?
    An order is a direction given by a Member of the Fair Work Commission (the Commission) in accordance with a decision. In relation to unfair dismissal applications, an order may: dismiss an unfair dismissal application require compensation to be paid require reinstatement, or require compensation to be paid and reinstatement. An order made by the Commission is legally binding. However the Commission does not have the power to enforce an order. The enforcement of orders is further explained, in other FAQ pages on our website.
  • What is a small claim proceedings?
    A small claim proceeding in the Federal Circuit Court of Australia or a State Magistrates Court is a way by which a person can seek to recover unpaid monies. The proceedings are generally more informal than other court proceedings and each party can only be represented by a lawyer if permission is given by the court. The maximum amount you can recover through the small claim procedure is $20,000. A pecuniary penalty order cannot be sought through this procedure. If an unfair dismissal order for compensation is more than this, you can still make a claim for enforcement of the order using other court procedures. Further information regarding small claims procedures can be found at section 548 of the Fair Work Act 2009. Further information on filing a small claim in the Fair Work Division of the Federal Circuit Court of Australia can be accessed on their website. I f a person wishes to file a claim through a State Magistrates Court they can contact that court directly.
  • What does the National System include under the Fair Work Act?
    The Fair Work Act in Australia establishes the National System for workplace relations, which encompasses various aspects of employment. Under the Fair Work Act, the National System includes the following elements: National Employment Standards (NES): The NES sets out ten minimum employment conditions that apply to all employees in the national system. These include maximum weekly hours, annual leave, personal/carer's leave, compassionate leave, parental leave, community service leave, long service leave, public holidays, notice of termination, and redundancy pay. Modern Awards: Modern Awards are industry or occupation-specific legal instruments that outline minimum terms and conditions of employment, such as pay rates, hours of work, leave entitlements, and other employment conditions. They provide a safety net of minimum standards for employees in particular industries. Enterprise Agreements: Enterprise agreements are negotiated agreements between employers and employees or their representatives (such as trade unions) that set out the terms and conditions of employment for a specific enterprise or group of employees. These agreements can vary from the modern award provisions, but they must meet or exceed the minimum standards provided by the NES. National Minimum Wage: The Fair Work Commission determines the national minimum wage each year. It is the minimum wage rate that must be paid to employees who are not covered by a modern award or enterprise agreement. The minimum wage is reviewed annually and takes into account various factors such as economic conditions and social needs. Fair Work Commission: The Fair Work Commission is an independent statutory body responsible for administering and enforcing the Fair Work Act. It has the authority to resolve disputes, approve enterprise agreements, make decisions on unfair dismissal claims, set minimum wages, and perform other functions related to workplace relations. General Protections: The Fair Work Act provides a range of general protections for employees, including protection against unfair dismissal, protection against workplace discrimination, protection of workplace rights, and protection for freedom of association and industrial activity. Compliance and Enforcement: The Fair Work Act establishes mechanisms for ensuring compliance with workplace laws and provides penalties for breaches. The Fair Work Ombudsman is responsible for promoting compliance with workplace laws, investigating complaints, and enforcing compliance through education, advice, and enforcement actions. It's important to note that the Fair Work Act and the National System may undergo amendments and changes over time. Need more information? call 1800ADVOCATES (1800 238 622) or gethelp@1800ADVOCATES.au
  • How can I enforce a order of the Fair Work Commission for compensation?
    If an employee does not receive compensation ordered by the Commission, there are several options to seek enforcement through the commencement of civil proceedings in: the Federal Circuit Court of Australia or a State Magistrates Court by commencing a small claim proceeding (available for the enforcement of a Commission order for the payment of money up to $20,000 where there is no application for a pecuniary penalty order) the Fair Work Division of the Federal Circuit Court of Australia, or an eligible State or Territory Court such as a District or County Court or state industrial relations commission. Normally an order for compensation from the Commission will provide a timeframe within which compensation is to be paid. It is advisable to wait until the timeframe has lapsed before seeking a non-compliance option.
  • Is a Fair Work Commission Order the same as a Deed of Settlement?
    An order is different from a Terms of Settlement document. A Terms of Settlement is a document signed by two parties agreeing to a settlement, and is usually obtained during the conciliation process of an unfair dismissal application with the Commission. This fact sheet does not cover Terms of Settlement documents. For information on enforcing a Terms of Settlement document legal advice may need to be sought.
  • What is the Fair Work Ombudsman?
    The Fair Work Ombudsman is an independent statutory agency, separate from the Fair Work Commission. The Fair Work Ombudsman is the agency responsible for providing education, assistance and advice about the Commonwealth workplace relations system. The Fair Work Ombudsman is also responsible for impartially enforcing compliance with the Fair Work Act 2009 and fair work instruments. If an unfair dismissal order made by the Commission is not complied with, you can contact the Fair Work Ombudsman for information on possible assistance with enforcing the order. You can contact the Fair Work Ombudsman online at: www.fairwork.gov.au or through the Fair Work Infoline: 13 13 94.
  • What are the important issues Aboriginal and Torres Strait Islander employment relationships for cultural, family and kinship obligations?
    Like all employees, Aboriginal and Torres Strait Islander peoples have pressures and responsibilities relating to their home and community life. However, there are some specific cultural issues that employers need to understand, including: the importance of family and kinship ties cultural obligations significant dates and cultural events the need for time away from work for issues such as Sorry Business. For many Aboriginal and Torres Strait Islander peoples, responsibilities to family, community and culture are extremely important. These responsibilities can sometimes conflict with workplace responsibilities. These are serious issues, which employers should discuss with sensitivity and respect, in order to find a solution that’s best for everyone. Due to family obligations, Aboriginal and Torres Strait Islander peoples may have more of a role in caring for children and elderly family members. Care may include financial care, health care and general care. This means Aboriginal and Torres Strait Islander peoples may have more responsibility outside their immediate family. To help employees meet these obligations, employers may need to consider offering flexible work arrangements. You can find more information about flexibility in the workplace on our Flexible working arrangements page. It’s also important to be aware of significant cultural events and dates, including key events such as: NAIDOC Week Sorry Day National Reconciliation Week local and regional events. It’s a good idea for employers and employees to discuss these dates. Where possible, employers should encourage and support staff who want to acknowledge and participate in these events. For specialist representation, our network partners at National Aboriginal and Torres Strait Islander Corporation - Advocacy Corporation is a service we support and maintain strong partnership with. You can contact them through 1800 238 622 or via email gethelp@natsic.org
  • Sexual harassment commencing on or after 6 March 2023
    The law prohibits sexual harassment in connection with work. Use this information when the conduct started on or after 6 March 2023. If the conduct started before this date, see Sexual harassment commencing before 6 March 2023. Understand how the law prohibits sexual harassment in connection with work. Use this information when the conduct started on or after 6 March 2023. If the conduct started before this date, see Sexual harassment commencing before 6 March 2023. Part 3-5A of the Fair Work Act prohibits sexual harassment in connection with work. A person (the first person) must not sexually harass another person (the second person) who is: a worker in a business or undertaking, or seeking to become a worker in a particular business or undertaking, or conducting a business or undertaking if the harassment occurs in connection with the second person being a worker or seeking to become a worker in a particular business or undertaking, or being a person conducting a business or undertaking. The prohibition applies where the sexual harassment occurred, or is part of a course of conduct that commenced, on or after 6 March 2023. Don't wait until it's too late, call us today to discuss your concerns and options and your rights. Call 1800 238 622 or gethelp@1800ADVOCATES.au
  • Can I apply for an order to stop sexual harassment at work?
    Most workers can apply for orders to stop sexual harassment at work. Use this information when the alleged conduct happened or started before 6 March 2023. If the conduct started on or after this date, see Sexual harassment commencing from 6 March 2023. For help with this application, use the contact form on this website or call us on 1800 238 622. You can also email us confidentially at gethelp@1800ADVOCATES.au
  • What is sexual harassment at work?
    Sexual harassment at work can take different forms. Learn what the law says is sexual harassment at work. Use this information when the alleged conduct happened or started before 6 March 2023. If the conduct started on or after this date, see Sexual harassment commencing from 6 March 2023. The definition of sexual harassment Sexual harassment is unwelcome conduct of a sexual nature in relation to a person. It occurs in circumstances where a reasonable person would anticipate the possibility of the person who is harassed being offended, humiliated or intimidated. Conduct of a sexual nature includes making a statement of a sexual nature to, or in front of, a person. The statement can be spoken or in writing. Workplace sexual harassment is when sexual harassment happens at work, in a constitutionally-covered business. It can be a one-off incident, or it can happen more than once, involving conduct by one or more people. Sexual harassment can include conduct such as: inappropriate staring, leering or loitering unwelcome touching suggestive comments or jokes, insults or taunts based on sex, or sexual gestures using suggestive or sexualised nicknames for a person persistent unwanted invitations to go out on dates intrusive questions or comments about a person’s private life or body unnecessary familiarity, such as deliberately brushing up against a person displaying material of a sexual nature in the workplace communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages. Sexual harassment can cause physical and psychological harm. It can have a wide range of negative impacts, including feelings of isolation, loss of confidence and stress or depression.
  • What is sexual harassment in connection to work?
    Understand how the law explains sexual harassment and how we can help. Use this information when the conduct started on or after 6 March 2023. If the conduct started before this date, see Sexual harassment commencing before 6 March 2023 A person sexually harasses another person if: they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or they engage in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The intention of the alleged harasser is not relevant. An advance, request or other conduct may be sexual in nature even if the person engaging in the conduct has no sexual interest in the person towards whom it is directed, or is not aware that they are acting in a sexual way. Conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person. Part 3-5A of the Fair Work Act applies to sexual harassment ‘in connection with’ work. For example, Part 3-5A applies where a worker is sexually harassed by another worker or by another person when they are working (such as by a customer or client of the person’s employer or principal, a supplier of the employer or business, or a visitor to the worker’s workplace). In the context of earlier provisions in the Sex Discrimination Act 1984 (describing when sexual harassment was prohibited in employment and employment-like settings), the Federal Court has observed: The phrase ‘in connection with’ is a phrase of wide import[1] ‘The words require a mere relation between one thing and another and do not necessarily require a causal relationship between the two things …’,[2] and The words ‘in connection with’ indicate that the relationship between the 2 things ‘need not be express nor direct’.[3] Sexual harassment can involve conduct by one or more people and can be a single incident, or repeated conduct/part of a course of conduct. Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties. Sexual harassment can include conduct such as: inappropriate staring, leering or loitering unwelcome touching suggestive comments or jokes, insults or taunts based on sex, or sexual gestures using suggestive or sexualised nicknames for a person persistent unwanted invitations to go out on dates intrusive questions or comments about a person’s private life or body unnecessary familiarity, such as deliberately brushing up against a person displaying material of a sexual nature in the workplace communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages. Sexual harassment can cause physical and psychological harm. It can have a wide range of negative impacts, including feelings of isolation, loss of confidence and stress or depression. How the Commission can deal with a dispute An application can ask the Commission to deal with a sexual harassment dispute by: making an order to stop sexual harassment in connection with work, or deal with the dispute (other than by arbitration), or both making an order to stop sexual harassment and otherwise dealing with the dispute. A stop sexual harassment order is intended to prevent any future harassment. The Commission will seek to assist the parties to resolve the issues in dispute, and if the matter is not settled, may determine the application by holding a determinative conference or formal hearing. Where the Commission is satisfied that unlawful sexual harassment has occurred and there is a risk of the person continuing to be sexually harassed by the person or persons, the Commission can make any preventative order considered appropriate (other than the payment of money). An application for the Commission to otherwise deal with the dispute (other than by arbitration) is intended to remedy past harm caused by sexual harassment. The Commission can seek to assist the parties to resolve the dispute, such as by conciliating, making a recommendation or expressing an opinion. If the matter cannot be settled, the Commission will issue a certificate to this effect. Following this, an aggrieved party (or their industrial association) may seek agreement for the matter to proceed to consent arbitration before the Commission for binding decision, or can choose to bring proceedings in court. Liability of employers/principals Under Part 3-5A, an employer or principal is vicariously liable for unlawful sexual harassment perpetrated by its employees or agents, if the sexual harassment was done ‘in connection with’ their employment or their duties as agent. This means that an aggrieved person can seek a remedy against an employer or principal in addition to, or instead of, the perpetrator of the sexual harassment. An employer/principal is not vicariously liable if they prove that they took all reasonable steps to prevent the employee or agent from doing acts that contravene the prohibition on sexual harassment in connection with work. The onus is on the employer/principal to prove that it took all reasonable steps to prevent the sexual harassment. What if you have experienced workplace sexual harassment and bullying? If you have experienced workplace sexual harassment and bullying, you can make separate applications to the Commission to deal with this. The Commission deals with bullying at work and sexual harassment disputes in different ways. Find out more about how to stop bullying at work. More information Read the definition of sexual harassment in section 28A of the Sex Discrimination Act 1984 . Read Part 3-5A of the Fair Work Act 2009 about the Commission’s role and power. Footnotes [1] Ewin v Vergara (No 3) [2013] FCA 1311 [230] (per Bromberg J). [2] Ewin v Vergara (No 3) [2013] FCA 1311 [230] (per Bromberg J), citing Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479 (Wilcox J). [3] See Vergara v Ewin (includes Corrigendum dated 14 November 2014) [2014] FCAFC 100 [83] (per White J in dissent, but not on in relation to this observation). If you need assistance with this topic or a similar complaint, please call us on 1800 238 622 or gethelp@1800ADVOCATES.au
  • What does conciliation mean if I am making a complaint or responding to sexual harassment claims?
    What is conciliation? Conciliation is an informal, voluntary and private discussion with a trained conciliator. We may hold a conciliation after we receive an application to stop sexual harassment at work. It helps the people involved in the case identify issues and resolve them together. Use this information when the alleged conduct happened or started before 6 March 2023. If the conduct started on or after this date, see Sexual harassment commencing from 6 March 2023. When conciliation may happen After a worker applies for an order to stop sexual harassment and we receive responses from the other people involved, the Fair Work Commission consider the information. If the Fair Work Commission think conciliation may help resolve the case, they will organise one. Arrangements can be made to ensure that the people involved in conciliation feel safe, such as having separate meeting rooms. The Fair Work Commission give the date and time of the conciliation to: the worker who applied the employer (or principal any person named in the application as having engaged in sexual harassment any lawyer or paid agent that we know is representing someone in the case. A trained conciliator will help you and the other people involved in the case try to resolve the case together. Conciliators are independent and do not take sides. If conciliation does not resolve the case, a Commission Member may hold a conference or hearing. What happens in conciliation Conciliators manage the process. Their role is to help overcome disagreements and keep discussions focused on resolving issues. Conciliators don’t examine evidence or make decisions about who is right or how the case should be resolved. Conciliation sessions vary, but usually work like this: 1. The conciliator explains their role and how the conciliation session will run. 2. Each side outlines their story, including: what happened any relevant facts how they think the case could be resolved. 3. The conciliator may ask questions and speak with the people involved in the case, either together or separately. 4. The conciliator will try to help you reach an agreement. To do this, they identify common ground and may offer guidance. 5. If you reach an agreement, the conciliator usually helps you record the agreement in writing. Benefits of conciliation Conciliation is a good way to resolve a case. Conciliation: provides an informal, voluntary, private and confidential way to stop sexual harassment at work can help maintain good working relationships is quicker than a formal conference or hearing helps the people involved feel more in control avoids the need for a formal conference or hearing. At conciliation, the people involved can choose to resolve a case in any way they think will help. They can find flexible solutions that are relevant to the case. Ask to change the time or date You can ask to change the time or date of a conciliation session by contacting us in writing. You should ask us as early as possible before the scheduled date. You need an important reason to change (adjourn) to a different day or time. You must send a copy of your request to the other people in the case unless it contains sensitive personal information. If that happens, ask a Commission Member if you can keep the information confidential. We usually give a copy of your request to the other people involved in the case and will consider their views before we decide. The Fair Work Commission may not agree to your request. We can help you find out more about keeping the case confidential. Prepare for conciliation Conciliation works best when you’re well prepared. Here's how people involved in a case about sexual harassment at work can be ready for conciliation. Tell us if you need help for conciliation Let us know as soon as you can if you need an interpreter or if you have any other special needs we can help with. Bring the right materials Bring a pen, paper and any relevant documents with you. Read the application and the responses of each person, then write your notes. Make sure you include: which issues are most important to you how you think the issues could be resolved the outcomes you hope to achieve your ‘best case’ and ‘worst case’ outcomes. Bring a support person You don't need a lawyer or paid agent, but it is highly recommended to have an Advocate to represent you at conciliation. If the conciliation is conducted by a trained conciliator (not a Commission Member) you can choose whether to have a representative (including a lawyer). If the conciliation is conducted by a Commission Member, your representative will need permission to attend. Alternatively, you can bring a support person. A support person does not usually take an active part in conciliation but is there to give you moral support. The support person is often a friend or family member. Have the right approach It helps to stay calm and keep an open mind in conciliation. Try to: be flexible and prepared to consider all options the other person suggests be ready to listen and consider other points of view focus on the issues and future work relationships. It’s normal to feel worried and to disagree about some issues. The conciliator will help you and the other people involved in the case stay focused on resolution. Conciliation outcomes At conciliation, the people involved can choose to resolve a case in any way they think will help. They can find flexible solutions that are relevant to the case. Don't wait, call us today to discuss your options and our services. Call 1800 238 622 or gethelp@1800ADVOCATES.au
  • How do I respond to a sexual harassment complaint?
    Why you may receive an application When a worker applies for an order to stop sexual harassment at work, we send a copy of their application to: each person named in the application as having engaged in sexual harassment each employer (or principal) named in the application any lawyer or paid agent who has told the Fair Work Commission they are involved in the case. If the Fair Work Commission send you a copy of the application, it means: a worker believes one or more people has sexually harassed them at work before 6 March 2023 the worker has applied for an order to stop the sexual harassment the case involves your workplace or your conduct, and the Commission hasn't yet made a decision about the application. If you are the employer (or principal) The Fair Work Commission send you a copy of the application so that you know about it and can respond. You must respond to the application within 7 days using Form F73A. The Fair Work Commission usually ask you to send your response, using the contact information provided on their Form F72A, F73A or F74A, to: the worker who made the application each person named in the application as having sexually harassed the worker any other employer (or principal) named in the application, and each person’s representative (lawyer or paid agent), if they have one. We can help you respond to the complaint. Link to form Form F73A – Response from an employer/principal to an application for an order to stop sexual harassment that occurred prior to 6 March 2023 If you are a person named as having engaged in sexual harassment The Fair Work Commission send you a copy of the application so that you know about it and can respond. If want to respond, you should do so within 7 days using Form F74. The Fair Work Commission send you a copy of the application so that you know about it and can respond. If want to respond, you should do so within 7 days using Form F74A. Using the contact information provided on the application (Form F72A) and response (Forms F73A and F74A), we usually ask you to send your response to: the worker who made the application each other person named in the application as having engaged in sexual harassment each employer (or principal) named in the application, and each person’s representative (lawyer or paid agent) if they have one. Link to form Form F74A – Response from a person named in an application for an order to stop sexual harassment that occurred prior to 6 March 2023. Additional support You could also consider contacting these organisations and agencies for support: an Employee Assistance Program (EAP) Lifeline or call 13 11 14 – 24 hour crisis support and suicide prevention services for all Australians experiencing emotional distress 1800Respect or call 1800 737 732 – National sexual assault, domestic family violence counselling service Beyond Blue or call 1300 22 4636 – information and support to help everyone in Australia achieve their best possible mental health, whatever their age and wherever they live ReachOut Kids Helpline or call 1800 55 1800 MensLine Australia or call 1300 78 99 78 Suicide Call Back Service or call 1300 659 467 Objecting to an application You can object to the application if you don’t think the Commission can make orders to stop sexual harassment in the case. Reasons to object to an application include: the conduct described in the application does not meet the definition of sexual harassment at work the worker is not covered by the law that allows orders to be made to stop sexual harassment at work (see Who can apply for orders to stop sexual harassment at work) the application is frivolous or vexatious the application has no reasonable chance of success. If you object to an application, make sure you describe your reasons for objecting on the response form. It is particularly important that you send us your response if you want to challenge the application. This information helps the Commission decide what to do next. What happens next Every case is different. When we receive your response, we consider it and decide the next steps. This can include: trying to resolve the case using conciliation a conference or hearing. The Fair Work Commission will let you know what to do next. Make sure you check your phone and email regularly so that we can contact you about the case. You should call or contact us immediately of you think you would like to be represented on this matter. Call us on 1800 238 622 or gethelp@1800ADVOCATES.au
  • How can I report sexual harassment at work?
    Sexual harassment and the general protections If you think you’ve been sexually harassed because you have made a complaint or enquiry about your employment or because you have a workplace right, you might be able to apply for the Commission to deal with a general protections application Sexual harassment and work health and safety Under model work health and safety laws, businesses and organisations must provide a safe workplace by making sure that people in their workplace are not exposed to health and safety risks. This includes risks of sexual harassment. Sexual harassment can arise between workers and other people at the workplace, including customers and clients. To find out more, visit: Fair Work Ombudsman for advice on sexual harassment in the workplace Safe Work Australia for information about work health and safety duties national regulator: Comcare the work health and safety authority in your state or territory: WorkSafe ACT SafeWork NSW NT WorkSafe Workplace Health and Safety Queensland SafeWork SA WorkSafe Tasmania WorkSafe Victoria WorkSafe WA
  • What is sexploitation and what can I do about it?
    Sexploitation is the use of sex or sexual content for commercial or personal gain, often at the expense of others. This can include the production and distribution of pornography, prostitution, and human trafficking. Sexploitation can also involve the use of blackmail or coercion to force individuals into engaging in sexual activities. In Australia, the Sex Discrimination Act 1984 (Cth) provides protection against sex discrimination, sexual harassment, and victimisation. The Act prohibits discrimination on the basis of a person's sex, gender identity, sexual orientation, and intersex status. Sexploitation can be a form of sex discrimination, particularly when it involves the exploitation of vulnerable individuals, such as women and children. The Act provides protection against this type of discrimination, and individuals who have been subjected to sexploitation may be eligible to make a complaint under the Act. The Act also provides protection against sexual harassment, which can be a form of sexploitation. Sexual harassment can include unwanted sexual advances, requests for sexual favors, and other unwelcome conduct of a sexual nature. The Act prohibits sexual harassment in the workplace, in education, and in other areas of public life. In addition, the Act provides protection against victimisation, which means that an individual cannot be treated unfairly for making a complaint or participating in an investigation under the Act. Overall, the Sex Discrimination Act plays a crucial role in protecting individuals from sexploitation and other forms of sex discrimination. It is important for individuals to be aware of their rights under the Act and to seek legal advice if they believe they have been subjected to discrimination or harassment. By working together to prevent sexploitation and promote equality, we can create a safer and more equitable society for all. For fast and FREE help with matters like this, complete the Priority Intake Form on our website or gethelp@1800ADVOCATES.au | 1800 238 622 | www.1800ADVOCATES.au
  • What is Sexual Harassment in the Workplace?
    Please note that the following information is for general understanding and should not be considered legal advice specific to your situation. F or personalized guidance, we strongly recommend you contact us to arrange a FREE consultation. What is sexual harassment? Sexual harassment in the workplace refers to unwelcome or offensive sexual advances, requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual nature that interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment. It is a violation of both federal and state laws that prohibit discrimination in employment. There are two primary types of sexual harassment recognized by the law: Quid pro quo harassment: This occurs when employment decisions or conditions, such as hiring, promotions, or job security, are based on the submission to or rejection of unwelcome sexual advances or requests. In these situations, a person in a position of power uses their authority to demand sexual favors or makes employment benefits contingent upon engaging in sexual activities. Hostile work environment harassment: This form of harassment arises when unwelcome sexual conduct creates an intimidating, hostile, or offensive working environment. Such conduct may include offensive jokes or comments, sexually explicit materials displayed in the workplace, unwelcome touching, lewd gestures, or any other behavior of a sexual nature that unreasonably interferes with an individual's work performance or creates an abusive work environment. It is important to note that sexual harassment can be committed by anyone in the workplace, including supervisors, coworkers, clients, or customers. Additionally, the victim and the harasser can be of the same or different genders. If an individual believes they are experiencing sexual harassment, it is crucial for them to take certain steps to protect their rights: Report the harassment: Employees should promptly report incidents of sexual harassment to their supervisor, manager, or the designated individual within the organization's policy. If the alleged harasser is the immediate supervisor, employees should report to a higher authority or the appropriate department within the company. Document the incidents: Keeping a detailed record of the incidents, including dates, times, locations, descriptions, and any witnesses present, can be valuable evidence in any future legal proceedings or complaints. Consult an attorney: Seeking legal advice from an experienced employment attorney can help individuals understand their rights, navigate the legal process, and determine the best course of action. Employers have a legal responsibility to address sexual harassment complaints seriously and take appropriate action to prevent and rectify any harassment that occurs within the workplace. Failing to respond adequately to reports of sexual harassment can lead to legal liability for the employer. If you would like more information about the available actions to address the sexual harassment, please email gethelp@1800ADVOCATES.au or call 1800ADVOCATES (1800 238 622).
  • What is the difference between sexual harassment and discrimination, the general protections and work health and safety
    Some types of discrimination are unlawful under federal, state and territory laws dealing with human rights, anti-discrimination and equal opportunity. To find out more, visit: the Australian Human Rights Commission website, which includes information about sex discrimination the human rights, anti-discrimination or equal opportunity commission in your state or territory: ACT Human Rights Commission Anti-discrimination New South Wales Northern Territory Anti-Discrimination Commission Queensland Human Rights Commission Office of the Commissioner for Equal Opportunity [SA] Equal Opportunity Tasmania Victorian Equal Opportunity and Human Rights Commission Equal Opportunity Commission [WA] The fastest way to get help is to call us on 1800 238 622, complete the Priority Intake Form or email us directly at gethelp@1800ADVOCATES.au
  • What should I do if I am being sexually harassed at work?
    Get support Talk to someone you trust about what happened. This could be someone at work, a friend or a health professional. Consider whether to talk to the person You could tell the person their behaviour is inappropriate and ask them to stop if it is safe to do so. You don’t have to speak to the person or talk to anyone else about what happened before coming to the Commission. It’s your choice. Ask the workplace for help You could try to resolve the issue using support available at your work. You could start by speaking to the: supervisor or manager human resources department health and safety representative union representative Employee Assistance Program (EAP) if available – you may be able to use this to access free professional counselling. Consider making a complaint Your workplace may have sexual harassment policies and processes in place. Think about whether you want to make a formal or informal complaint to human resources or your manager so it can be investigated. Find out whether a government body can help Depending on what has happened, different government bodies might be able to help you. Respect@Work The Respect@Work website has information and resources on dealing with workplace sexual harassment. The Fair Work Commission You may be eligible to apply to the Commission for orders to stop sexual harassment at work. Our Advocates and staff can give you information on: who can apply to the Commission how to make or respond to a claim about sexual harassment at work our processes for managing cases. Find out who can apply to the Commission to stop sexual harassment at work. You can also find out who to contact about: sexual harassment and discrimination sexual harassment and the general protections and sexual harassment and work health and safety. The Fair Work Ombudsman The Fair Work Ombudsman has information for people who may have experienced sexual harassment in the workplace and for employers, including about protections from sexual harassment, prevention and managing sexual harassment in the workplace. The Australian Human Rights Commission If you have experienced sexual harassment for discriminatory reasons, you may be able to make a complaint to the Australian Human Rights Commission. Its website also has links to support services for sexual harassment, sexual assault, mental health, rape, domestic violence and work health and safety in each state and territory Call the police Some forms of sexual harassment are also crimes. To find out more, contact your local police station on 131 444 (Australia wide). Look after your health and wellbeing Experiencing sexual harassment at work can be difficult and stressful. Our website has information about help and support to look after your mental health and wellbeing. FOR URGENT ACTION Our Advocates are available for you to speak to 24/7 by calling 1800 238 622 or via email gethelp@1800ADVOCATES.au
  • Can I be sacked for being sick?
    Section 352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Comparison – unlawful termination The protection in s.352 is identical to the protection in s.772(1)(a) – meaning that if a person is not eligible to make an application for temporary absence under the general protections then the following information can also be appropriate for an unlawful termination claim. What is the protection? An employer must not dismiss an employee because the employee was temporarily absent from work due to an illness or injury. Example An employer must not dismiss an employee because they were away from work for 2 days on sick leave. Are there exceptions? There are 2 exceptions. Firstly, this protection only relates to an employer dismissing an employee. Secondly, an employee will not be protected if: the employee’s absence extends for more than 3 months OR the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries) AND the employee is not on paid personal/carer’s leave for the duration of the absence.[1] Substantiation requirements Regulation 3.01 Temporary absence – illness or injury For section 352 of the Act, this regulation prescribes kinds of illness or injury. Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within: 24 hours after the commencement of the absence; or such longer period as is reasonable in the circumstances. Note: The Act defines medical certificate in section 12. A prescribed kind of illness or injury exists if the employee: is required by the terms of a workplace instrument: to notify the employer of an absence from work; and to substantiate the reason for the absence; and complies with those terms. A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3) (a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act. Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee. An illness or injury is not a prescribed kind of illness or injury if: either: the employee’s absence extends for more than 3 months; or the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence. In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation. When does the protection apply? The protection will only apply if the employee satisfies at least one of the substantiation requirements set out in the regulations: The employee provides a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances. A medical certificate is defined in s.12 as meaning ‘a certificate signed by a medical practitioner’. A medical practitioner is defined in s.12 as meaning ‘a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides registration and licensing of medical practitioners’. OR If the employee is required by the terms of a workplace instrument to notify the employer of an absence from work and to substantiate the reason for the absence, the employee complies with those terms. A workplace instrument is defined in s.12 as meaning ‘an instrument that is made under, or recognised by, a workplace law and concerns the relationships between employers and employees’. A workplace law is defined in s.12 as meaning 'this Act or the Registered Organisations Act or the Independent Contractors Act 2006 or any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)'. OR If required by the employer, the employee gives the employer evidence that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee How is this applied? The Courts have not yet addressed how a temporary absence should be calculated in order for the exception to be applied under the current Act and Regulations. However, decisions issued under predecessor Acts and Regulations could provide guidance on how this should be done.[2] The Courts have previously decided that where a continuous period of leave is made up of various types of leave, for example, annual leave, paid sick leave and unpaid sick leave, the period is treated as a single absence from work.[3] It appears that if an employee’s absence because of illness or injury lasts for more than 3 months, or if their total absences for illness or injury in a 12 month period amount to more than 3 months, the protection will not apply to them if any part of the temporary absence is not on paid sick leave. The regulations expressly state that a period of paid personal/carer’s leave does not include a period when the employee is absent from work while receiving workers’ compensation. Regulation 3.01 has been found to contain all of the situations where illnesses or injuries will support a claim under s.352.[4] If a particular absence does not fall within the scope of the regulation, the protection will not apply, even if in ordinary language it would be regarded as a temporary absence.[5] For an employer to act in breach of s.352, there must be an awareness that the absence was because of an illness or injury and this absence must have been the reason for the termination. This means that the employer must prove that they either did not know the reason for the absence or that they did not terminate the employment because of the absence.[6] The Courts have confirmed that s.352 does not preclude the dismissal of an employee while the employee is temporarily absent from work because of an illness or injury. If the employee may be dismissed validly it is not to the point that the decision to dismiss happens to be made while the employee is on leave.[7] Case examples Prescribed kind of illness or injury exists Devonshire v Magellan Powertronics Devonshire v Magellan Powertronics [2013] FMCA 207 (11 April 2013), [(2013) 231 IR 198]. The employee provided a medical certificate four weeks after the commencement of the absence, and after she had been dismissed while absent. Consideration of a claim of contravention of s.352 was not beyond jurisdiction by reason of the late provision of the certificate after dismissal. Stevenson v Murdoch Community Services Inc Stevenson v Murdoch Community Services Inc [2010] FCA 648 (23 June 2010), [(2010) 202 IR 266]. The employer insisted that the applicant respond to allegations of misconduct while she was on sick leave despite medical and other evidence as to her inability to respond. The Court found that the employer took advantage of and used the applicant’s temporary absence from work due to illness in terminating her employment. The Court was satisfied that the applicant’s employment was terminated at least for a reason that included a proscribed reason, namely her temporary absence from work because of illness. Penalty ordered The respondent was ordered to pay the applicant $7,500 as a pecuniary penalty. Compensation ordered The respondent was ordered to pay the applicant 6 months remuneration. Prescribed kind of illness or injury does NOT exist Corke-Cox v Crocker Builders Pty Ltd Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012). The Court was satisfied that the applicant had an illness or injury and that he attended various medical practitioners and obtained medical certificates which would have addressed the statutory requirement provided for in the regulations. However he did not satisfy the requirement to provide the medical certificate to his employer within 24 hours of commencement of the absence or at any other time. Verbal advice does not constitute the provision of a medical certificate as required by the Regulations. Anderson v Crown Melbourne Ltd Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008), [(2008) 216 FLR 164]. The applicant was dismissed after calling in sick. He produced a medical certificate but had previously expressed that he intended to attend a football game in Perth on the day in question. The Court did not accept the validity of the medical certificate and found that the applicant was not ill on the day in question. Therefore the termination was not for ill health but for the perception that the employer had of misconduct by the applicant. Nikolich v Goldman Sachs J B Were Services Pty Ltd Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006). The applicant provided certificates covering most of his periods of absence from work. However it was found that his periods of absence exceeded three months on both the continuous basis and the 12 month period basis. The Court found that parts of the period of leave of absence taken as annual leave and leave without pay should be included in the calculation of the period of absence for the purposes of the regulations. References [1] Fair Work Regulations 2009, reg 3.01(5). [2] Although reg 3.01(5) in the Fair Work Regulations 2009 is drafted slightly differently to the equivalent reg 12.8 under the Workplace Relations Regulations 2006, the Explanatory Memorandum to the Fair Work Bill 2008 [1432] indicates that it is intended to be applied in much the same way. [3] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006). [4] Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011) at para. 157, [(2011) 207 IR 129]; Rogers v Millenium Inorganic Chemicals Limited (2009) 178 IR 297 [52]; Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 . [5] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006) at para. 169. [6] Devonshire v Magellan Powertronics [2013] FMCA 207 (11 April 2013) at para. 69, [(2013) 231 IR 198]; citing Sperandio v Lynch t/as Doctors of Northcote (2006) 160 IR 360 [91]. [7] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 [26]; affirming original decision (2010) 199 IR 281 .
  • Can I be Charged Bargaining Fees?
    1. An industrial association, or an officer or member of an industrial association, must not: demand; or purport to demand; or do anything that would: have the effect of demanding; or purport to have the effect of demanding; payment of a bargaining services fee. A bargaining services fee is a fee (however described) payable: to an industrial association; or to someone in lieu of an industrial association; wholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees. Bargaining services are services provided by, or on behalf of, an industrial association in relation to an enterprise agreement, or a proposed enterprise agreement (including in relation to bargaining for, or the making, approval, operation, variation or termination of, the enterprise agreement, or proposed enterprise agreement). Exception for fees payable under contract Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services. What is the protection? An industrial association (such as a union) cannot charge non-members for bargaining services in relation to a proposed enterprise agreement which will also cover the non-members. Are there exceptions? Non-members can enter into a contract with an industrial association for bargaining services. What are bargaining services fees? A bargaining services fee is a charge made for the negotiation of an enterprise agreement. They are similar to fees charged by professionals such as solicitors. An industrial association may not demand a bargaining services fee or include a requirement to pay such a fee in an enterprise agreement, even if employees who are not union members will benefit from their services in negotiating the agreement. However, a person can freely enter into a contract or commercial arrangement with an industrial association for the provision of bargaining services.
  • What is NOT discrimination?
    The law says that some actions may not be discrimination. This includes where the action is: allowed under state or territory anti-discrimination laws based on the inherent requirements of the position taken to avoid injuring religious beliefs in some specific circumstances This is covered in section 351 of the Fair Work Act 2009. There is more information on the Fair Work Ombudsman's website.
  • What are the Anti-Discrimination laws?
    The Fair Work Commission only have the power to deal with issues under the Fair Work Act. Other federal, state or territory laws may cover your issue. You may also be able to complain to the Australian Human Rights Commission. Commonwealth laws: Age Discrimination Act 2004 (Cth) Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) Commonwealth laws cover the whole of Australia. Other laws cover individual states and territories. These laws generally cover the same types and areas of discrimination. In some situations: There are gaps in the protection they give people. The Commonwealth law OR the state or territory law applies, not both. We specialise in employment and human rights (discrimination) representation and advocacy.
  • What happens when adverse action is taken because of discrimination?
    Employees and potential employees are protected from discrimination at work. Employers who take harmful ('adverse') action because of discrimination may break general protections laws. An employer may break general protections laws if they: dismiss an employee because of their features or attributes don't hire someone because of their features or attributes treat a person differently to others because of their features or attributes offer an employee worse terms than other employees because of their features or attributes don't give a worker their legal entitlements because of their features or attributes change an employee’s job in a way that has a negative effect because of their features or attributes take or threaten to take adverse action to force an employee to do something because of their features or attributes. The word ‘because’ is important in a dispute or case about general protections. You may be able to ask us to resolve a dispute if: you believe your employer or potential future employer has taken an adverse action AND the reason is discrimination. We explain this in Understand general protections. See What is adverse action? to learn about harmful actions.
  • What is discrimination?
    An employer must not behave in a way that harms a person because they have a certain feature or attribute. A person’s ‘features and attributes’ are their: race colour sex sexual orientation breastfeeding gender identity intersex status age physical or mental disability marital status family or carer responsibilities pregnancy religion political opinion national extraction (such as their heritage, their citizenship, or where they or their parents were born) social origin (such as their social class or group, language and customs).
  • Where does a complaint of discrimination get lodged in my State?
    Each state and territory has an agency that deals with discrimination. Find out if they can help with your case under their laws. ACT: ACT Human Rights Commission NSW: Anti-Discrimination New South Wales NT: Northern Territory Anti-Discrimination Commission Qld: Human Rights Commission Queensland Tas: Equal Opportunity Tasmania SA: Equal Opportunity Commission South Australia Vic: Victorian Equal Opportunity and Human Rights Commission WA: Equal Opportunity Commission Western Australia
  • Where can I get help with a no-win-no-fee unfair dismissal?
    We offer a no-win-no-fee agreement to clients who are assessed as being suitable in terms of merit and suitability to the no-win-no-fee model. "No win no fee" is a type of payment arrangement commonly used in litigation cases, particularly in personal injury lawsuits. Under this arrangement, the lawyer's fees, or in our case professional Advocate's fees are contingent on the outcome of the case. If the case is successful and the client receives a settlement or award, the we are entitled to a percentage of the amount, typically no less than our minimum fee and up to a maximum of 50% of the total compensation. However, if the case is unsuccessful, meaning that there is no offer of settlement, we do not receive any payment. If there is an offer of settlement, then our fees become payable. This arrangement is often used to provide access to justice for individuals who may not have the financial resources to pursue a legal case. Not every case we consider will be offered a no-win-no-fee agreement, it will largely depend on factors such as available resources and existing case loads committed to the no-win-no-fee unfair dismissal, general protections and human rights cases we are undertaking at the time. Our primary consideration is on the merit of the case and our capacity to be paid for the work we do at the end of the process and naturally that means that you are put in a better position overall, not just on financial terms. The ultimate decision on what constitutes a 'win' is exclusively ours to determine and if you unreasonably withhold agreement, our fees remain payable.
  • What is a no-win-no-fee unfair dismissal?
    Before you consider a no-win-no-fee agreement, please read this information. "No win, no fee" is a type of arrangement commonly used in cases where the professional fees are only paid if the case is successful. In other words, the lawyer or as in our case, Professional Advocate takes on the financial risk of the case and is only compensated if we win the case on behalf of the client. This type of arrangement is also known as a contingency fee agreement. It can be beneficial for clients who may not have the financial resources to pay for a lawyer or Professional Advocate upfront or who are hesitant to take on the financial risk of pursuing an unfair dismissal case. However, it's important to note that if the case is successful, the fees may be higher than they would be under a traditional fee arrangement to compensate for the risk we take on, this is referred to as an uplift. In percentage terms, we calculate our fixed fees as follows; Traditional upfront fee: 100% Part-payment and payment arrangement: 110% No-win-no-fee arrangement: 130% If you would like to know more about the merit of you unfair dismissal, employment or human rights case, please complete the priority intake form on our website or email gethelp@1800ADVOCATES.au to arrange a FREE consultation.
  • How can I get help on a no-win-no-fee basis?
    "No win, no fee" is a type of legal agreement in which a lawyer, Advocate, Advocacy firm or law firm agrees to provide services to a client without requiring payment unless the client's case is successful. This means that if the case is lost, the client does not have to pay any legal or professional fees. In a "no win, no fee" arrangement, the lawyer, Advocate, law firm or Advocacy firm takes on the risk of not being paid, but also stands to gain a percentage of the client's compensation if the case is successful. This type of agreement is often used in personal injury cases, where the client may not have the financial resources to pay for legal or professional services upfront. It is important to carefully review and understand the terms and conditions of any "no win, no fee" agreement before entering into it, as there may be additional costs or fees that the client will be responsible for if the case is successful. If you would like us to assess your situation and case for a no-win-no-fee agreement, please complete the contact form on our page or email gethelp@1800ADVOCATES.au to arrange a FREE confidential consultation.
  • What is Sham contracting?
    Section 357 A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor. Subsection (1) does not apply 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. If you think you have been the victim of a Sham contracting arrangement, please complete the priority intake form on our website or email gethelp@1800ADVOCATES.au
  • What does Sham contract mean?
    Sham contracting is a term used to describe a situation where an employer deliberately misclassifies an employee as an independent contractor to avoid providing them with entitlements and benefits such as minimum wage, superannuation, sick leave, and workers' compensation insurance. Sham contracting is illegal in many countries because it is a form of employee exploitation that deprives workers of their rights and protections. Employers who engage in sham contracting may be subject to penalties and fines, and workers may be entitled to back pay and other compensation. It's important for workers to understand their employment status and entitlements and to be aware of their rights in the workplace. If you suspect that you have been misclassified as an independent contractor, you should seek advice and report the matter to the appropriate authorities. For a FREE consultation, please complete the priority intake form on our website or email gethelp@1800ADVOCATES.au
  • What are the benefits to Sham contracting for employers?
    Sham contracting refers to a situation where an employer misrepresents or disguises an employment relationship as an independent contracting arrangement. This can be done to avoid paying certain entitlements to the worker, such as minimum wages, superannuation, leave entitlements, and other benefits. Sham contracting is illegal in many countries, including Australia, where employers who engage in this practice can be subject to penalties and fines. In addition, workers who are misclassified as independent contractors instead of employees may also have legal recourse to seek compensation for any lost wages or benefits. It's important for both employers and workers to understand the difference between an independent contractor and an employee. Independent contractors typically have more control over their work and are responsible for their own tax obligations, while employees have less control and are entitled to certain benefits and protections under the law. For a FREE consultation, please complete the priority intake form on our website or email gethelp@1800ADVOCATES.au
  • Why do employers make Sham contracting arrangements?
    Sham contracting is an illegal practice in which an employer misrepresents an employment relationship as an independent contracting arrangement, when in fact the worker is an employee. The purpose of sham contracting is usually to avoid paying employee entitlements, such as minimum wages, superannuation, leave entitlements, and other benefits that employees are entitled to under law. Employers may try to avoid their obligations by engaging workers as independent contractors, instead of employees. This can be done by presenting a contract that describes the arrangement as one of a contractor and a client, rather than an employer and an employee. However, if the work arrangement meets the criteria for an employment relationship, the worker is still an employee in the eyes of the law, regardless of what the contract says. If an employer engages in sham contracting, they may face penalties and other legal consequences. For a FREE consultation, please complete the priority intake form on our website or email gethelp@1800ADVOCATES.au
  • Are my fees for representation tax deductible?
    Fees paid by you that relate to you contesting an unfair dismissal for example can be tax-deductable expenses, but not generally. For a more qualified opinion, we recommend you speak to your own accountant about the prospect. For detailed information on the Australian Taxation Office ruling, please visit the ATO website and read this ATO article. For more information, please contact the ATO direct or your accountant.
  • How do I take Long Service Leave?
    Here are some ideas to consider for Victorian based workers by agreement between the employer and employee, LSL can be taken for any period of not less than one day, at a time agreed by the parties an employee can request to take LSL at any time after 7 years’ continuous employment an employer may agree to an employee taking LSL in advance of having completed 7 years continuous service with the employer an employee can request to take a period of LSL for twice as long as the period to which they are entitled, at half their ordinary pay the employer must grant leave as soon as practicable following the employee’s request unless the employer has 'reasonable business grounds' for refusing the request an employer may direct an employee to take leave by giving at least 12 weeks’ written notice. If the employee does not want to take their leave at the time nominated by the employer, they can apply to the Industrial Division of the Magistrates’ Court.
  • What can I do if someone is harassing me on social media?
    If someone is harassing you on social media, here are some steps you can take: 1. Block the person: Most social media platforms have a block feature that allows you to block the person who is harassing you. This will prevent them from seeing your posts and sending you messages. 2. Report the person: Most social media platforms have a reporting feature that allows you to report the person who is harassing you. This will alert the platform to the harassment and they may take action against the person. 3. Keep evidence: It's important to keep evidence of the harassment, such as screenshots or messages. This can be useful if you decide to take legal action. 4. Reach out for help: If you feel threatened or unsafe, reach out to someone you trust, such as a friend, family member, or authority figure. You can also contact organizations that offer support for victims of harassment. Remember, it's important to prioritize your safety and well-being. Don't hesitate to take action if you're being harassed on social media. If you need assistance with this matter or you would like to discuss your options with one of our Advocates or Investigators and enjoy a FREE consultation, please complete the Priority Intake Form on our website.
  • How can I manage my anger?
    Managing anger can be a challenging task, but there are some strategies you can try: 1. Identify your triggers: Try to identify what triggers your anger. It could be a person, a situation, or a specific thought. Once you know your triggers, you can take steps to avoid or manage them. 2. Practice relaxation techniques: Deep breathing, meditation, and yoga are some relaxation techniques that can help you manage your anger. These techniques can help you calm down and reduce your stress levels. 3. Express your feelings: Sometimes, expressing your feelings in a calm and assertive manner can help you manage your anger. You can talk to the person who triggered your anger and explain how you feel. 4. Exercise regularly: Physical activity can help you release your anger and reduce your stress levels. You can go for a walk, run, or engage in any other physical activity that you enjoy. 5. Seek professional help: If your anger is causing problems in your personal or professional life, you may want to seek professional help. A therapist can help you identify the underlying causes of your anger and develop strategies to manage it. Remember that managing anger is a process, and it takes time and effort. Be patient with yourself and keep practicing these strategies. If you need help with understanding an employment of human rights situation and would like to speak to one of our Advocates during a FREE consultation, please complete the Priority Intake Form on our website.
  • What is the difference between a defined benefit superannuation benefit and a cumulative superannuation policy?
    Defined benefit superannuation and cumulative superannuation are two different types of retirement savings plans. A defined benefit superannuation plan is a retirement plan where the employer guarantees a specific retirement benefit to the employee based on a formula that takes into account the employee's salary and length of service. The employer is responsible for investing the funds and managing the risks associated with the plan. On the other hand, a cumulative superannuation plan is a retirement plan where the employee contributes a portion of their salary into a retirement account, and the employer may also make contributions. The funds are invested in a range of investment options, and the final benefit is based on the amount of contributions made, the investment returns earned, and any fees or charges deducted. The key difference between the two plans is that in a defined benefit plan, the employer bears the investment risk and guarantees a specific benefit to the employee, while in a cumulative plan, the employee bears the investment risk and the final benefit is based on the accumulated contributions and investment returns.
  • What is the name of my Award?
    The list below includes links to the Fair Work website to provide you with the most up to date modern award. If you have an issue finding the correct award for your position, please feel free to contact us via gethelp@1800ADVOCATES.au or call 1800 238 622 for a FREE consultation. A Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award [MA000115] Aged Care Award [MA000018] Air Pilots Award [MA000046] Aircraft Cabin Crew Award [MA000047] Airline Operations - Ground Staff Award [MA000048] Airport Employees Award [MA000049] Alpine Resorts Award [MA000092] Aluminium Industry Award [MA000060] Ambulance and Patient Transport Industry Award [MA000098] Amusement, Events and Recreation Award [MA000080] Animal Care and Veterinary Services Award [MA000118] Aquaculture Industry Award [MA000114] Architects Award [MA000079] Asphalt Industry Award [MA000054] Australian Government Industry Award 2016 [MA000153] B Banking, Finance and Insurance Award [MA000019] Black Coal Mining Industry Award [MA000001] Book Industry Award [MA000078] Broadcasting, Recorded Entertainment and Cinemas Award [MA000091] Building and Construction General On-site Award [MA000020] Business Equipment Award [MA000021] C Car Parking Award [MA000095] Cement, Lime and Quarrying Award [MA000055] Cemetery Industry Award [MA000070] Children's Services Award [MA000120] Cleaning Services Award [MA000022] Clerks - Private Sector Award [MA000002] Coal Export Terminals Award [MA000045] Commercial Sales Award [MA000083] Concrete Products Award [MA000056] Contract Call Centres Award [MA000023] Corrections and Detention (Private Sector) Award [MA000110] Cotton Ginning Award [MA000024] D Dredging Industry Award [MA000085] Dry Cleaning and Laundry Industry Award [MA000096] E Educational Services (Post-Secondary Education) Award [MA000075] Educational Services (Schools) General Staff Award [MA000076] Educational Services (Teachers) Award [MA000077] Electrical, Electronic and Communications Contracting Award [MA000025] Electrical Power Industry Award [MA000088] F Fast Food Industry Award [MA000003] Fire Fighting Industry Award [MA000111] Fitness Industry Award [MA000094] Food, Beverage and Tobacco Manufacturing Award [MA000073] Funeral Industry Award [MA000105] G Gardening and Landscaping Services Award [MA000101] Gas Industry Award [MA000061] General Retail Industry Award [MA000004] Graphic Arts, Printing and Publishing Award [MA000026] H Hair and Beauty Industry Award [MA000005] Health Professionals and Support Services Award [MA000027] Higher Education Industry - Academic Staff - Award [MA000006] Higher Education Industry - General Staff - Award [MA000007] Horse and Greyhound Training Award [MA000008] Horticulture Award [MA000028] Hospitality Industry (General) Award [MA000009] Hydrocarbons Field Geologists Award [MA000064] Hydrocarbons Industry (Upstream) Award [MA000062] J Joinery and Building Trades Award [MA000029] Journalists Published Media Award [MA000067] L Labour Market Assistance Industry Award [MA000099] Legal Services Award [MA000116] Live Performance Award [MA000081] Local Government Industry Award [MA000112] M Mannequins and Models Award [MA000117] Manufacturing and Associated Industries and Occupations Award [MA000010] Marine Tourism and Charter Vessels Award [MA000093] Marine Towage Award [MA000050] Maritime Offshore Oil and Gas Award [MA000086] Market and Social Research Award [MA000030] Meat Industry Award [MA000059] Medical Practitioners Award [MA000031] Mining Industry Award [MA000011] Miscellaneous Award [MA000104] Mobile Crane Hiring Award [MA000032] N Nursery Award [MA000033] Nurses Award [MA000034] O Oil Refining and Manufacturing Award [MA000072] P Passenger Vehicle Transportation Award [MA000063] Pastoral Award [MA000035] Pest Control Industry Award [MA000097] Pharmaceutical Industry Award [MA000069] Pharmacy Industry Award [MA000012] Plumbing and Fire Sprinklers Award [MA000036] Port Authorities Award [MA000051] Ports, Harbours and Enclosed Water Vessels Award [MA000052] Poultry Processing Award [MA000074] Premixed Concrete Award [MA000057] Professional Diving Industry (Industrial) Award [MA000108] Professional Diving Industry (Recreational) Award [MA000109] Professional Employees Award [MA000065] R Racing Clubs Events Award [MA000013] Racing Industry Ground Maintenance Award [MA000014] Rail Industry Award [MA000015] Real Estate Industry Award [MA000106] Registered and Licensed Clubs Award [MA000058] Restaurant Industry Award [MA000119] Looking for the Retail Award? It's actually called "General Retail Industry Award" and it's listed under G, but here is a quick link to it: General Retail Industry Award [MA000004] Road Transport and Distribution Award [MA000038] Road Transport (Long Distance Operations) Award [MA000039] S Salt Industry Award [MA000107] Seafood Processing Award [MA000068] Seagoing Industry Award [MA000122] Security Services Industry Award [MA000016] Silviculture Award [MA000040] Social, Community, Home Care and Disability Services Industry Award [MA000100] Sporting Organisations Award [MA000082] State Government Agencies Award [MA000121] Stevedoring Industry Award [MA000053] Storage Services and Wholesale Award [MA000084] Sugar Industry Award [MA000087] Supported Employment Services Award [MA000103] Surveying Award [MA000066] T Telecommunications Services Award [MA000041] Textile, Clothing, Footwear and Associated Industries Award [MA000017] Timber Industry Award [MA000071] Transport (Cash in Transit) Award [MA000042] Travelling Shows Award [MA000102] V Vehicle Repair, Services and Retail Award [MA000089] W Waste Management Award [MA000043] Water Industry Award [MA000113] Wine Industry Award [MA000090] Wool Storage, Sampling and Testing Award [MA000044]
  • What is a modern award?
    A modern award is a document which sets out the minimum terms and conditions of employment on top of the National Employment Standards (NES). Modern awards came into effect on 1 January 2010. Modern awards provide entitlements such as: 1. pay 2. hours of work 3. rosters  breaks 4. allowances 5. penalty rates 6. overtime. If you need help with more information concerning your award entitlements, please complete our Priority Intake Form, email gethelp@1800ADVOCATES.au or call 1800 238 622.
  • Who is covered by the Social, Community, Home Care and Disability Services Industry Award
    The Social, Community, Home Care and Disability Services Industry Award is an industrial award that sets out the minimum employment conditions, including wages and entitlements, for workers in the social, community, home care, and disability services sector in Australia. The coverage of the award may vary based on specific roles and classifications within the industry. Typically, the award covers a range of workers employed in various roles, including but not limited to: Support Workers: This category includes workers providing direct care and support to individuals with disabilities, older persons, or individuals in need of community or home care services. Personal Care Assistants: These are individuals who provide personal care services, including assistance with daily living activities, personal hygiene, and mobility support. Community Development Workers: These workers are involved in community engagement, development, and outreach programs aimed at supporting individuals and communities in need. Disability Support Workers: These workers provide assistance and support to individuals with disabilities in various settings, such as residential care facilities or individual homes. Social Workers: Social workers in the industry may be covered by the award, particularly if they are engaged in providing community-based or disability-related services. Do you need to know more about the Award that is relevant to your industry and position. Call for a FREE consultation or complete the Priority Intake Form on our website. 1800 238 622 | gethelp@1800ADVOCATES.au | www.1800ADVOCATES.au
  • Can my employer force me to take annual leave?
    In Australia, employers generally cannot force their employees to take annual leave unless certain conditions are met. The specific rules regarding annual leave entitlements and requirements are outlined in the Fair Work Act 2009 and any applicable modern award or enterprise agreement that covers your employment. Under normal circumstances, employees have the right to choose when they take their annual leave, provided they give reasonable notice to their employer. However, there may be situations where an employer can require employees to take annual leave. These situations include: Shutdown periods: If a business shuts down during specific periods, such as over the Christmas and New Year period, an employer can require employees to take annual leave during that time. Excessive leave accrual: If an employee has accumulated a significant amount of annual leave that is above the allowed carryover limit, an employer may require them to take leave to reduce their leave balance. Genuine operational reasons: In certain circumstances, an employer may have legitimate operational reasons for requiring employees to take annual leave. This could include situations where the employer needs to manage workforce capacity or reduce costs. It's important to review the specific provisions in your employment contract, modern award, or enterprise agreement to understand your rights and obligations regarding annual leave. If you have concerns about your employer's actions or believe they are not complying with the applicable regulations, please call us for a FREE consultation. Alternatively you can complete the Priority Intake Form on our website or call 1800 238 622 or gethelp@1800ADVOCATES.au
  • Where can I get some support with personal counselling or a help line?
    Lifeline 24/7 telephone counselling service 13 11 14 www.lifeline.org.au Suicide Call Back Service 24/7 telephone counselling for people at risk of suicide, carers and bereaved 1300 659 467 http://www.suicidecallbackservice.org.au MensLine National 24/7 support for men dealing with relationship and family issues 1300 78 99 78 www.menslineaus.org.au SuicideLine Victoria 24/7 telephone counselling for people at risk of suicide, carers and bereaved 1300 651 251 www.suicideline.org.au SANE Australia Helpline Mental health information, weekdays 9:00am–5:00pm 1800 187 263 www.sane.org beyondblue Info Line Information about depression, anxiety and related disorders 1300 224 636 www.beyondblue.org.au Black Dog Institute Information about depression and bipolar disorder www.blackdoginstitute.org.au Mental Health First Aid Mental health first aid courses and resources (03) 9342 3770 http://www.mhfa.com.au Headspace Mental health services and support for young people 12–25 years www.headspace.org.au
  • How can I contact my State or Territory Law Society?
    Queensland Law Society – LawCare http://www.qls.com.au/For_the_profession/Practice_support/Schemes_services/LawCare Law Society of New South Wales http://www.lawsociety.com.au/ForSolictors/professionalsupport/supportingyou/mentalhealthwellbeing/index.htm New South Wales Bar Association http://www.nswbar.asn.au/docs/professional/prof_assist/assist_index.php Law Institute of Victoria http://www.liv.asn.au/Practice-Resources/Practice-Support/Health-and-Wellbeing Victorian Bar http://www.vicbar.com.au/information/personal-helpline Law Society of South Australia (member login required) http://www.lawsocietysa.asn.au/# Law Society of Western Australia http://www.lawsocietywa.asn.au/page.php?id=85 ACT Law Society (member login required) http://www.actlawsociety.asn.au/member-services/counselling-services.html Law Society Northern Territory http://lawsocietynt.asn.au
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